This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 16, 2001. With respect to the single issue before him, the hearing officer determined that the appellant’s (claimant’s) average weekly wage (AWW) is $400.00. On appeal, the claimant asserts error in that determination. The respondent (carrier) urges affirmance.
DECISION
Affirmed.
Section 408.041(a) provides that a full-time employee’s AWW shall be determined by dividing the wages from the 13 weeks preceding the compensable injury by 13. See also Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.3(d) (Rule 128.3(d)). If a full-time employee did not work for the employer for the 13 weeks preceding the compensable injury, the AWW is calculated using “the usual wage that the employer pays a similar employee for similar services.” Section 408.041(b)(1); Rule 128.3(f). If neither of the foregoing methods can “reasonably be applied,” the AWW is determined “by any method that the commission considers fair, just, and reasonable to all parties and consistent with the methods established under [the 1989 Act].” Section 408.041(c); Rule 128.3(g).
In the present case, the hearing officer noted that the claimant had not worked as a long-term substitute teacher for the 13 weeks prior to her date of injury, and that a wage statement for a same or similar employee was not admitted in evidence. Applying the fair, just, and reasonable method found in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.3(g) (Rule 128.3(g)), the hearing officer determined that the claimant’s AWW is $400.00. The Appeals Panel has previously noted, that when the hearing officer determines that the usual AWW calculation methods cannot be applied in a given case, the hearing officer has discretion to apply any fair, just and reasonable method in arriving at AWW and we review the method used under an abuse of discretion standard. See Texas Workers’ Compensation Commission Appeal No. 941292, decided November 9, 1994, and cases cited therein. Our review indicates that the hearing officer’s method of calculating AWW was fair, just and reasonable and was consistent with the methods established in Section 408.041 to calculate AWW. Therefore, he did not abuse his discretion in so calculating AWW and we affirm the determination that the claimant’s AWW is $400.00.
The hearing officer’s decision and order are affirmed.
The true corporate name of the carrier is EMPLOYERS GENERAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. DAVID LINE
4010 82ND STREET, SUITE 240
LUBBOCK, TEXAS 79423.
Elaine M. Chaney – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Philip F. O’Neill – Appeals Judge