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 4, 2001. With respect to the issues before him, the hearing officer determined that the respondent’s (claimant) average weekly wage (AWW) is $736.93 and that the claimant “is entitled to mileage reimbursement for 495.6 miles per round trip at the applicable state rate for reasonable and necessary medical treatment to [City 1], Texas.” In its appeal, the appellant (carrier) contends that the hearing officer erred in including $35.00 per diem in the claimant’s AWW. In his response to the carrier’s appeal, the claimant urges affirmance of the hearing officer’s determination that the per diem is properly included in the calculation of the claimant’s AWW; however, the claimant acknowledges that the hearing officer used the incorrect figure for the claimant’s regular compensation in the 13 weeks prior to his date of injury and asks that we correct this clerical error. Specifically, the claimant and the carrier contend in their respective pleadings on appeal that the claimant’s regular compensation in the 13 weeks prior to his injury was $6,367.03 and not the $6,955.16 figure used by the hearing officer in his calculation.
DECISION
Affirmed, as modified.
The hearing officer did not err in including the $35.00 per diem paid to the claimant in the 13-week period preceding his date of injury in the calculation of the claimant’s AWW. In this instance, the evidence establishes that although the claimant incurred expense for room and board, the primary purpose of the $35.00 per diem was to secure the claimant’s presence at the employer’s job site on a fairly continuous basis. Accordingly, under the guidance of Texas Workers’ Compensation Commission Appeal No. 000341, decided March 29, 2000; Texas Workers’ Compensation Commission Appeal No. 982577, decided December 16, 1998; and Texas Workers’ Compensation Commission Appeal No. 972569, decided January 27, 1998, the per diem was properly included in the calculation of the claimant’s AWW. Thus, we find no merit in the carrier’s assertion that the $2,625.00 in per diem money that the claimant received in the 13 weeks prior to his date of injury was improperly included in the calculation of the AWW.
As noted above, both the carrier and the claimant agree that the hearing officer used the incorrect figure in the calculation of the claimant’s regular compensation during the 13 weeks preceding his date of injury. He used $6,955.16 when the actual figure is $6,367.03. Thus, the claimant’s gross wages were $8,992.03 ($6,367.03 + $2,625.00). When that figure is divided by 13, the AWW is $691.69. This error by the hearing officer necessitates modification of three of the hearing officer’s Findings of Fact and one Conclusion of Law, as follows:
FINDINGS OF FACT
4.Claimant’s regular compensation was $6,367.03 paid in the [13] weeks prior to the date of injury.
* * *
6.Claimant’s total compensation paid during the [13] weeks prior to the date of injury was $8,992.03.
7.Claimant’s average weekly wage is $691.69
CONCLUSIONS OF LAW
3.The average weekly wage for this claim is $691.69.
As so modified, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is EMPLOYERS INSURANCE OF WAUSAU and the name and address of its registered agent for service of process is
RICK KNIGHT
105 DECKER COURT, SUITE 600
IRVING, TEXAS 75062.
Elaine M. Chaney – Appeals Judge
CONCUR:
Michael B. McShane – Appeals Judge
Robert W. Potts – Appeals Judge