FOLIO

DWC Has Created Two New LIBs Forms

Nov 19, 2024 | by Flahive, Ogden & Latson

Available for use beginning on November 21, 2024 are 2 new DWC Forms pertinent to lifetime income benefits (LIBs):

• • • • DWC Form-038, Application for Lifetime Income Benefits.
      • DWC Form-039, First Responder’s Annual Certification for Lifetime Income Benefits.

The new DWC-38 was created to allow Claimants to more easily and consistently comply with Rule 131.1(b), which provides that an injured employee may submit a written request for lifetime income benefits to the insurance carrier. If they do, that same rule mandates that the insurance carrier shall either initiate LIBs or deny the injured employee’s eligibility for LIBs within 60 days from the receipt of the injured employee’s written request.

Rule 131.1(d) provides further that if the injured employee submits a written request for LIBs and the insurance carrier denies eligibility, the insurance carrier shall deny eligibility by sending a plain language notice of denial of eligibility to the division, the injured employee, and the injured employee’s representative, if any, up to the 60th day after receipt of the written request. And the form used for doing so is the PLN-04.

(Note that an insurance carrier’s failure to respond to the request for lifetime income benefits within the timeframes described in this subsection does not constitute a waiver of the insurance carrier’s right to dispute the injured employee’s eligibility for lifetime income benefits.)

New form DWC-39 was drafted to assist the parties in a LIBs claim involving a first responder.  Sec. 408.1615(1)(e) provides that a first responder receiving LIBS shall annually certify to the insurance carrier that the employee was not employed in any capacity during the preceding year. The DWC-39 is the certifying form.

Note that Sec. 408.1615(1)(g) provides that an insurance carrier may review an employee’s continuing entitlement to LIBs if:

1. 1. 1. 1. the employee certifies to the insurance carrier that the employee was not employed in any capacity during the preceding year;
         2. the insurance carrier provides evidence to the commissioner that the certification provided by the employee is not accurate; and
         3. the commissioner notifies the insurance carrier that the commissioner has determined that the evidence provided by the insurance carrier is sufficient to show that the certification provided by the employee may not be accurate.

This then provides the opportunity for a designated doctor evaluation on the issue, under Sec. 408.1615(1)(h). And claimant’s failure to comply with these provisions (and the annual filing of the new DWC-39) may provide a basis for suspension of LIBs, if certain other requirements are met, under Sec. 406.1615(1)(i).

Please contact the attorneys at FOL if we can provide any assistance with these new forms specifically, and/or with issues surrounding LIBs entitlement generally: gqs@fol.com.