The IW's AWW shall be calculated using gross wages. Section 128.1(d). The amount of income benefits and death benefits an IW or an IW's legal beneficiaries are entitled to be paid is based upon the IW's AWW.
Except as provided by Section 128.7 regarding school district employees, the IW's gross wages include all pecuniary and nonpecuniary wages paid by the employer prior to the DOI, but not nonpecuniary wages paid to the IW by the employer after the injury. Section 128.1(b); APD 042756-s. Nonpecuniary wages paid to the IW by the employer after the DOI are not included in the IW's AWW calculation, except as provided by Section 128.1(c)(2). Sections 408.045 and 128.1(c)(2); APD 042756-s. Pecuniary and non-pecuniary wages are defined in Section 126.1.
Section 128.1(a) provides that the method of calculating an IW's AWW is dependent on whether the IW was employed:
(1) as a full-time employee (see Section 128.3 for calculation method);
(2) as a part-time employee (see Sections 408.042 and 128.4 for calculation method);
(3) as a seasonal employee (see Sections 408.043 and 128.5 for calculation method);
(4) as a school district employee (see Sections 408.0446 and 128.7 for calculation method); and
(5) as a multiple employment employee (see Sections 408.042 and 128.1(h) for calculation method).
Section 401.011(43) defines wages. Unless a specific exception is provided for, such as when dealing with school district employees, in addition to an IW's paycheck and any paycheck from concurrent employment, which will be discussed in the sub-section entitled MULTIPLE EMPLOYMENT, the following are some of the things which are included in calculating the IW's AWW:
Nonpecuniary wages are wages paid to an IW in a form other than money. Nonpecuniary wages do not include reimbursement for expenses incurred by the IW. APD 032882. If the employer stops paying the IW these nonpecuniary wages after the DOI, they are included in calculating the IW's AWW for purposes of income benefits. APD 060272-s. When the value of the nonpecuniary wage is in dispute, it becomes a question of fact for the HO to resolve. APD 060272-s. Section 126.1(2) provides that nonpecuniary wages include, but are not limited, to the following:
(A) Health insurance premiums.
(E) Payment of professional license fees.
(G) Provision of a vehicle/fuel.
Pecuniary wages are wages paid to an IW in a form of money. Section 126.1(3) provides that pecuniary wages include, but are not limited, to the following:
(A) Hourly, weekly, biweekly, monthly (etc.) wages.
(C) Piecework compensation.
(D) Any monetary allowance such as for health insurance premiums, vehicle/fuel, food/meals, clothing/uniforms, laundry/cleaning, or lodging/housing/rent.
(E) Monetary bonuses earned or accrued by the IW.
AWW Does Not Include:
An IW's AWW does not include nonpecuniary wages during any period that the employer continues to pay them to the IW. Section 408.045. An IW's AWW does not include payments made by the employer to reimburse the IW for the use of the IW's equipment, for paying helpers, for reimbursing actual expenses related to employment such as travel related expenses, or reimbursing mileage up to the state rate. Section 128.1(c )(1).
Calculating AWW In General.
The method of calculation used to determine the amount of the IW's AWW is dependent upon the type of employment the IW had at the time of the compensable injury. Section 128.1(a). Adjustment of an IW's AWW will be discussed in sections (W02) and (W03). Calculation of an IW's AWW for SIBs will be discussed in (W04).
Full Time Employee.
A full time employee is one who regularly works at least thirty hours per week and has a schedule comparable to other employees of that company and/or other employees in the same business or vicinity who are considered full time. Section 128.3(a).
The AWW for a full time employee is determined by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13. Section 408.041(a); Section 128.3(d). If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine the AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer's business, the AWW is determined by using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. Section 408.041(b); Section 128.3(e).
For the purpose of determining the AWW of a similar employee's services or employment, the employee's training and experience, nature of the work and number of hours normally worked must be considered. Section 408.046. A similar employee is one with training, experience, skills, and wages similar to the IW. Section 128.3(f)(1); APD 991273. Similar services are tasks performed or services rendered that are comparable in nature to, and in the same class as, those performed by the IW, and that are comparable in the number of hours normally worked. Section 128.3(f)(2); APD 042996.
Fair, Just, and Reasonable Determination.
If the above methods described cannot reasonably be applied to calculate the AWW, the Division may compute the AWW in a way that is fair, just, and reasonable to both parties. Section 408.041(c); Section 128.3(g). Whether the fair, just, and reasonable method of calculating the AWW should be used is a question of fact for the HO to resolve. APD 040467.
The IW received wages from the employer for the 11 weeks immediately preceding his compensable injury. The number of hours worked by the IW in each week varied from 8 hours to over 52 hours. No evidence was presented as to what a same or similar employee would have made during the 13 weeks preceding the compensable injury. The HO determined that it was fair, just, and reasonable to both the IW and the IC to calculate the IW's AWW by dividing the gross wages paid by the employer over the 11 weeks immediately preceding the compensable injury by 11. The HO's determination was not against the great weight and preponderance of the evidence. APD 030164-s.
Part Time Employee.
The calculation for determining the AWW used to determine TIBs for IWs who work part time is the same as that for calculating the AWW of full time employees. Section 128.4(a).
For purposes of calculating AWW for all other income and death benefits, part time employees are considered in two different categories: those who worked part-time as a regular course of conduct, and those who did not. Section 128.4(b).
Determining Regular Course of Conduct.
To determine if an IW works part time as regular course of conduct, the IW's work pattern during the 12 months preceding the injury is considered. If the IW only worked part time during that 12 month period, they are presumed to have worked part time as a regular course of conduct. Section 128.4(b). Section 128.4(c) provides the method for calculating AWW for an IW who worked part time as a regular course of conduct.
Not in the Regular Course of Conduct.
To determine the calculation of AWW for IWs who did not work part time as a regular course of conduct, please see Section 128.4 (e) and (f).
Seasonal AWW Disputes.
[Cross-reference: Seasonal AWW Disputes (W05).]
A seasonal worker is an employee who, as a regular course of conduct, participates in seasonal or cyclical work, which does not continue throughout an entire year. Section 408.043(d); Section 128.5(a).
In determining whether an IW is a seasonal worker, the IW's past work history, rather than the nature of the IW's employment on the DOI, is considered. APD 001922. The fact that an IW agrees to work for a fixed period called a "season" does not make the IW a seasonal employee. APD 992884. Whether an IW is a seasonal employee is a question of fact for the HO to resolve. APD 031080.
The seasonal IW's AWW used for calculating TIBs should be adjusted as often as necessary to reflect the wages the IW could reasonably have expected to earn during the period that TIBs are paid. Section 408.043(a). The IC that seeks adjustment of the IW's AWW has the burden of proving that the IW was a seasonal employee. APD 002390. Evidence of a seasonal IW's earnings must be submitted at the time an adjustment is requested and must include proof of the IW's earnings in corresponding time periods in previous years. Section 128.5(c); APD 93015.
Fair, Just, and Reasonable Determination.
If the Division determines that is impractical to calculate the AWW in one of the methods described, the Division may compute the AWW in a way that is fair and just to both parties. Section 408.043(c); Section 128.5(d)(2). Before making a fair, just, and reasonable determination, the Division must state why it is impractical to use one of the other methods for determining AWW. APD 970605. The sole fact that the IW is a seasonal employee, and does not work for the employer on a yearly basis, does not make it impractical to use one of the other methods for determining AWW. APD 971082.
School District Employees.
The AWW of a school district employee is based on the amount of wages earned by the employee in a week, and not on the amount actually paid to the employee during that week. The amount of wages earned by the employee is equal to the amount that would be deducted from the employee's salary if the employee were absent from work for one week without available leave. Sections 408.0446(a); Section 128.7(b).
The IW, an employee of a school district, sustained a compensable injury approximately a month and a half after her date of hire. The IW had been employed by several other employers during the year prior to her employment with the school district, and provided evidence of wages earned by the other employers during that time. The HO determined the AWW for IIBs based on a "fair and reasonable" method. The AP reversed the HO's decision and remanded the case for a determination of the AWW for IIBs based on the total wages the IW earned in the 12 months immediately preceding the DOI, divided by 50 weeks, in accordance with Sections 408.0446(c) and 128.7(e). In so doing the AP noted that the only provision for using a "fair and just" method is in Section 408.0446(d), which provides for computing AWW using a fair and just method if it is determined by the commissioner that computing the AWW as provided by Section 408.0446 is impractical because the employee did not earn wages during the 12 months immediately preceding the DOI. The AP pointed out that in this case the IW proved she earned wages during the 12 months preceding the injury. The AP also noted that Section 128.7(e)(2) does not require that the "other employers" be non-claim employers and that the IW still be employed with them at the time of the injury. APD 080268-s.
The IW had a 187 day contract to work, and the wages were to be paid over the entire year. The IW worked during the summers of 1999 and 2000. The IW did not work during the summer of 2001, but attended several mandatory training meetings. The HO did not allow an adjustment of the AWW, stating that it could not have been the legislative intent of this act or the rule that a teacher loses her contract pay and workers' compensation benefits just because she doesn't work for the summer due to her compensable injury. The AP reversed and remanded the decision. The HO is to determine what, if anything, the IW could reasonably expect to earn during the summer of 2002 if she had not been injured. If the HO determines that the IW did not reasonably expect to earn wages, the IC is entitled to adjust the IW's AWW to zero. APD 022860-s.
The IW was a non-contract employee who had worked summers in the past about half of the time. Due to the compensable injury, the IW could not have worked during the summer of 2002. The HO was not persuaded that the school would not have hired the IW for the summer of 2002. The AP affirmed the determination that the AWW adjustment for the summer break should be calculated based on the wages of a same or similar employee during the same time period. APD 030007.
Non-Written Contract Employee.
For a school district employee who is employed on a non-contract basis, AWW for determining TIBs shall be computed by dividing the total gross wages earned in the previous 13-week period immediately proceeding the DOI by 13. Section 128.7(c)(2).
Written Contract Employee.
For determining the amount of TIBs a school district employee is entitled to, the AWW is computed by dividing the amount the employee would have been paid under the completed contract by either the number of days the employee was required to work under the contract and then multiplying by five, or by dividing the amount the employee would have been paid under the completed contract by the number of months covered under the contract and then dividing that result by 4.34821. Section 128.7(c)(1).
Multiple Employment Employee.
[Cross-references: Multi Employment AWW Dispute (W06); Entitlement to Multi Employer Benefits (I25)].
When an IE is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IE using the wages from all of the employers. For this purpose, the IE is required to submit a Multiple Employment Wage Statement (DWC Form-003ME) to the IC. 28 TAC Section 128.1(h).
The claim employer is who the IE worked for at the time of the injury and with whom the IE filed a claim for workers' compensation benefits. 28 TAC Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IE’s AWW would be determined if the IE did not have multiple employment. 28 TAC Section 128.1(h)(1).
A non-claim employer is any employer, other than the claim employer, who employed the IE on the DOI. 28 TAC Section 122.5(a)(2). An IE employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.
Under 28 TAC Section 122.5(d), the Multiple Employment Wage Statement shall include:
(1) the [IE’s] name, address, and social security number;
(2) the date of the [non-claim employer’s] hire of the employee;
(3) the [DOI];
(4) the [non-claim employer’s] name, address, and federal tax identification number;
(5) the name and phone number of a person at the [non-claim employer] who can be contacted to verify the wage information (unless the wage information was not provided by a person at the [non-claim employer] - such as if the wage information came from the Texas Workforce Commission or the employee's pay stubs);
(6) the wage information required by subsection (e) of this section with documentation that supports the wage information being reported; and
(7) a certification that the wage information provided includes all wage information required by subsection (e) of this section and that the information is complete and accurate.
Among other issues in the case, the ALJ decided that the IE was employed by a non-claim employer, but she was not entitled to increased income benefits under TLC Section 408.042 and 28 TAC Section 128.1(h). The ALJ’s decision on this issue was based on her statement that she could not determine when the IE filed the Multiple Employment Wage Statement with DWC and the IC. The AP found that the ALJ’s failure to consider the document under those circumstances was legal error, writing that the IE effectively submitted the document to the IC and DWC by the exchange of that document and its admission into evidence at the CCH. In addition, the AP pointed to APD 151496-s, in which it clarified that 28 TAC Section 122.5 does not establish a deadline for filing a Multiple Employment Wage Statement. The AP ultimately affirmed the ALJ’s decision that the IE was not entitled to increased income benefits under TLC Section 408.042 and 28 TAC Section 128.1(h), because the Multiple Employment Wage Statement did not contain all of the information required in 28 TAC Section 122.5(d), namely the non-claim employer’s address or federal tax identification number. APD 171228.
The portion of the IE’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IE during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IE has not worked for 13 weeks or more prior to the DOI, the wages used to determine the AWW are those paid by the employer to a similar employee, who performed similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer's business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. 28 TAC Section 128.1(h)(2). Wages used to determine AWW from a non-claim employer shall include only those wages reportable for federal income tax purposes. TLC Section 408.042(e); 28 TAC Section 128.1(h)(2). The IE must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s. The IE has the burden to establish the wages earned from the non-claim employer. APD 052864-s. A Multiple Employment Wage Statement may be filed after the date of MMI. APD 151496-s, referenced in the APD 171228 case summary above, clarifies that 28 TAC Section 122.5 does not establish a deadline for filing a Multiple Employment Wage Statement to the IC. 28 TAC Section 122.5(f) defines the time period, up to the date the IE reaches MMI, for which IEs filing Multiple Employment Wage Statements must report any change in employment status or wages to the IC.
The IE sustained a compensable injury while performing his duties as a volunteer firefighter. In addition to his work as a volunteer firefighter, the IE earned wages from two different employers. The ALJ calculated a wage for the IE as a volunteer firefighter and then combined that amount with the wages from the IE’s employment with the two non-claim employers to determine his AWW. The AP reversed and rendered, holding that, because the IE earned no wages as a volunteer firefighter, his AWW could only be based on his wages from the two non-claim employers. APD 050140.