This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 31, 2001. The hearing officer determined that the appellant’s (claimant) average weekly wage (AWW) is $407.12. The claimant appeals contending that the hearing officer abused his discretion in not calculating the AWW Aunder Section 408.041(c), using the fair, just, and reasonable method, rather than under Section 408.041(a), the 13 weeks method. The respondent (carrier) replied to the appeal, urging affirmance.
DECISION
Reformed, affirmed in part, and reversed and rendered in part.
While the sole issue before the hearing officer as stated was, “What is the average weekly wage?” we note that the issue actually litigated at the CCH dealt entirely with the question of whether a payment of $20 a day when the claimant was on the road should be included in the calculation of AWW. Neither the claimant nor the respondent sought to revisit the correctness of the AWW figure which had been used since the inception of the claim almost five years ago; they only sought a determination regarding the per diem payment. Since that was the only issue litigated, we reform the issue to read: “Should the $20 per day payment to the claimant be included in the AWW?”
The hearing officer decided the reformed issue in favor of the claimant, and included the per diem payment in the calculation of AWW. This portion of the decision is supported by the evidence. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the evidence for that of the hearing officer.
The hearing officer erred when he recalculated the AWW by following the guidance in Section 408.041(a) and by changing the formula that was used to initially calculate AWW. The hearing officer was obligated to continue to use Section 408.041(c), the fair, just, and reasonable method. The evidence indicates that the total wages earned by the claimant during the full weeks he worked were added together, and then divided by eight (the number of full weeks worked), to get a figure of $506.56 for the AWW. The hearing officer added the total per diem received ($1,120) to total wages earned ($4,090, eight full weeks plus the money earned in a short work week), but divided that total by 13. This was inappropriate, and an abuse of discretion by the hearing officer. He should have added the per diem total ($1,120) to the figure for eight full weeks of work ($4,090), and divided that total ($5,210) by eight. The resulting determination is $651.25, the correct AWW, considering the per diem payment. We render a decision that the AWW is $651.25.
The true corporate name of the insurance carrier is COLONIAL CASUALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
WILLIAM HAGAN
12850 SPURLING DR., SUITE 250
DALLAS, TEXAS 75203.
Michael B. McShane – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Gary L. Kilgore – Appeals Judge