The Pay Without Prejudice Extension. To sign, or not to sign the Form 105. That is thy question…

Posted by Chisholm Law LLC (August 2018)

You received a letter from the insurance company, directing you to sign an attached form so that they “can continue paying your benefits”. The form is from the Department of Industrial Accidents, labeled Form 105 Agreement to Extend 180 Day Payment Without Prejudice Period. What is it? And should you sign it?

It’s a good question. First, let’s give a little background. The first 180 days (six months) of an injured worker’s claim is referred to as the pay without prejudice period. This 6-month period, governed by M.G.L. Chapter 152 (the Massachusetts Workers’ Compensation Statute), allows the insurer to pay an injured worker weekly benefits without fully accepting liability for injury. During this period, they are supposed to investigate the claim, review medical records, discuss the facts and circumstances of the injury with the injured worker, their employer, etc., to determine if there is any factual basis to dispute the claim. If an insurer decides they want to deny a claim after having started payments, they can stop your benefits at any time during this six-month period. All that is required is that they provide 7-day advanced written notice that they are terminating benefits. That’s it! They do not require permission from anyone! It’s important to realize that the insurer holds all the power during this initial period.

So, what is this form? The Form 105 is a form that extends the pay without prejudice period from 180 days to 360 days. Insurers typically send out 105 extension letters early on in the process, i.e. 30-90 days rather than do what they should and investigate the circumstances around the injury. Insurers often send these extension letters under the guise that they are assisting you get an additional 180 days of benefits. “Wow! I’m going to get another 180 days of checks?” That’s not accurate, and grossly misleading. They can continue to pay benefits if they choose to. Essentially, they want injured workers to sign the Form 105 extension because they want the time frame extended where they have the power to stop benefits. It’s a tool

That leads to the next question. What happens it I don’t sign it? If an insurer continues to pay benefits beyond the 180-day period, they have actually accepted liability for your injury as a matter of law, and can only stop your benefits under limited circumstances, such as a judge authorizing termination by way of a Conference Order; you return to work without a loss of earnings; your treating physician indicates that you can return to work with your employer and they’ve kept your job open for you; and a few other limited circumstances. What’s this mean? It means after the 180-day period they no longer have the power to stop your benefits without proper reason, and/or permission. So why should you allow an insurer to avoid accepting liability by signing the Form 105?

That is not to say that a Form 105 extension should never be signed. Every injured worker’s case is unique, and should be fully explored before making an assessment. If you have received an Agreement to Extend 180 Day Payment Without Prejudice Period, aka Form 105, from the workers’ compensation insurer, you should reach out to me right away. I’d be happy to discuss.

About the Author: Eric Chisholm
J. Eric Chisholm practices in the areas of Personal Injury, Workers' Compensation and Social Security Disability. He is a member of the Massachusetts Bar Association & a frequent lecturer on the topic of workers' compensation law at Massachusetts Continuing Legal Education seminars.