[Cross-references: Amount of AWW (W01); 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.