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 April 24, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to carpal tunnel syndrome (CTS), medial epicondylitis, or lateral epicondylitis of the right upper extremity; (2) the appellant (claimant) does have disability from May 14, 2016, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury); (3) the claimant was employed by a non-claim employer, but is not entitled to increased income benefits pursuant to Section 408.042 and 28 TEX. ADMIN. CODE §128.1(h) (Rule 128.1(h)) (we note that the decision contains an incorrect reference to Section 408.043, which will be addressed below); (4) the claimant had post-injury earnings (PIE) from May 14 through August 27, 2016, and again from October 4, 2016, and continuing through the date of the CCH; (5) $380.18 is the claimant’s average weekly wage (AWW) and the claimant failed to establish the date income benefits began to accrue based on multiple employment wages; (6) the claimant reached maximum medical improvement (MMI) on July 5, 2016; and (7) the claimant’s impairment rating (IR) is zero percent.

The claimant appealed all of the hearing officer’s determinations that were adverse to her, contending that the evidence did not support those determinations. The respondent (carrier) responded, urging affirmance of the hearing officer’s extent of injury, MMI, and IR determinations. The carrier did not respond regarding the remainder of the hearing officer’s determinations.

The hearing officer’s determination that the claimant does have disability from May 14, 2016, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a right elbow and right lower arm strain. The claimant testified she was injured when lifting a heavy SUV engine with a coworker.

We note that the decision contains an incorrect statutory reference to Section 408.043 rather than the correct statutory reference to Section 408.042 in the Decision and Order paragraph on the first page, Issue Statement 3, Conclusion of Law No. 5, and the Decision. We reform all references of Section 408.043 to Section 408.042.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury sustained on (date of injury), does not extend to CTS, medial epicondylitis, or lateral epicondylitis of the right upper extremity is supported by sufficient evidence and is affirmed

MMI AND IR

The hearing officer’s determination that the claimant reached MMI on July 5, 2016, is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimant’s IR is zero percent is supported by sufficient evidence and is affirmed.

PIE

The hearing officer’s determination that the claimant had PIE from May 14 through August 27, 2016, and again from October 4, 2016, and continuing through the date of the CCH is supported by sufficient evidence and is affirmed.

AWW

The hearing officer’s determination that $380.18 is the claimant’s AWW and the claimant failed to establish the date income benefits began to accrue based on multiple employment wages is supported by sufficient evidence and is affirmed.

INCREASED INCOME BENEFITS PURSUANT TO SECTION 408.042 AND RULE 128.1(h)

The claimant argued at the CCH that she worked for another employer, while she was working for the claim employer prior to her (date of injury), compensable injury. In evidence is an Employee’s Multiple Employment Wage Statement (DWC-3ME) dated March 9, 2017, stating that she earned wages from the non-claim employer during the pay periods beginning on October 25, 2015, through February 13, 2016. We note that this DWC-3ME does not contain a date stamp showing receipt by the Texas Department of Insurance, Division of Workers’ Compensation (Division).

The hearing officer determined that the claimant was employed by a non-claim employer but is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). The hearing officer explained her rationale as follows:

On March 9, 2017, [the] [c]laimant provided, in her exhibits, another [DWC-3ME] with the wage information of the second employer for the 13 weeks prior to her compensable injury . . . it is difficult to determine when she delivered this form, with the correct wage information, to the Division and [the] [c]arrier. It appears that the [c]arrier received this information when it was exchanged in preparation for the [CCH] on March 2, 2017. Since the correct information was not filed with the Division and [the] [c]arrier, [the] [c]laimant is not entitled to include the wages earned with the second employer when she sustained the compensable injury.

Section 408.042(e) provides:

For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.

Rule 128.1(h), amended effective May 16, 2002, states in pertinent part:

(h) For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to [DWC-3ME]), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section.  The employee’s AWW shall be the sum of the AWWs for each employer.

* * * *

(2) The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for Temporary Income Benefits for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5(f), effective May 16, 2002, states:

(f) Employees who file [DWC-3MEs] are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches [MMI].

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

In Appeals Panel Decision 151496-s, decided September 30, 2015, the Appeals Panel clarified that Rule 122.5 does not establish a deadline for filing a DWC-3ME. In the case on appeal the claimant has effectively submitted the DWC-3ME for the non-claim employer to the carrier and the Division by the exchange of that document and its admission into evidence at the CCH. The hearing officer’s failure to consider the claimant’s DWC-3ME because she could not determine when the claimant filed the DWC-3ME with the Division and the carrier was legal error.

Rule 122.5 also provides the following:

(d) The Multiple Employment Wage Statement shall include

 

1.  the employee’s name, address, and social security number;

 

2.  the date of the Non-Claim Employer’s hire of the employee;

 

3.  the date of injury;

 

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.

 

(e) The wage information required to be provided in a Multiple

Employment Wage Statement includes the employee’s Non-Claim Employer wages, as defined in [Rule] 128.1 of this title (relating to [AWW]:  General Provisions), earned during the 13 weeks immediately preceding the date of injury and the number of hours the employee worked to earn the wages being reported.  The wages are limited to those reportable for federal income tax purposes.

The March 9, 2017, DWC-3ME in evidence does not contain the non-claim employer’s address or federal tax identification number as required under Rule 122.5(d)(4). Because the DWC-3ME did not contain all of the information required in Rule 122.5(d), the claimant is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). For this reason we affirm the hearing officer’s determination that the claimant was employed by a non-claim employer, but is not entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h).

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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 July 1, 2015, with the record closing on July 7, 2015, in Denton, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent’s (claimant) average weekly wage (AWW) is $1,084.28; and (2) the appellant (carrier) is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on an Employee’s Multiple Employment Wage Statement (DWC-3ME) which was not submitted to the carrier until after the claimant had reached maximum medical improvement (MMI) and all income benefits which were due had been paid.

The carrier appealed the hearing officer’s determinations, contending that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed.

The parties stipulated in part that the claimant sustained a compensable injury on (date of injury), and the claimant reached MMI on the statutory date of March 15, 2014. Also, the parties stipulated to the amount of the AWW with and without the inclusion of pre-injury wages paid to the claimant by a non-claim employer, Healing Touch Homecare (HTH), as follows: (1) the claimant’s AWW exclusive of wages from the non-claim employer, HTH, is $972.73, and benefits were paid based upon that figure; and (2) the claimant’s AWW including wages from the non-claim employer, HTH, is $1,084.28.

In this case, the evidence reflects that on the date of injury the claimant was employed by a claim employer, and two non-claim employers, Lakes Regional MHMR Center (LR) and HTH, respectively. In evidence is a letter dated February 26, 2015, from the claimant to the carrier requesting that the amount of AWW be re-calculated based on the pre-injury wages from the second non-claim employer.

The carrier states in its appeal that it paid temporary income benefits (TIBS) based upon the pre-injury wages from the claim employer and one non-claim employer, LR. The carrier argues that since the claimant has been paid all income benefits and the claimant’s date of MMI has passed, the claimant is prohibited from requesting an adjustment to her AWW from an additional non-claim employer.

Section 408.042(e) provides:

For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.

28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, states in pertinent part:

(h) For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to [DWC-3ME]), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section.  The employee’s AWW shall be the sum of the AWWs for each employer.

* * * *

(2) The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for [TIBs] for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5(f) effective May 16, 2002, states in pertinent part:

(f) Employees who file [DWC-3ME] are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches [MMI].

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

The carrier argued that the claimant had waived the right to seek further adjustment of her AWW because of lack of due diligence in obtaining and submitting an updated wage statement from her second non-claim employer, HTH; the claimant violated Rule 122.5(f) when she submitted the DWC-3ME for one non-claim employer, LR, but not for the additional non-claim employer, HTH; and pursuant to Rule 122.5(f) the claimant’s obligation to report changes ceases upon reaching MMI, placing an affirmative duty upon the claimant to submit wage information while benefits are still being paid.

The hearing officer explains in the discussion portion of his decision that in this case Rules 128.1 and 122.5 do not provide an exception where there is a delay in filing the DWC-3ME, whereas the carrier has a duty to adjust the AWW and to make payments based upon the correct AWW. The hearing officer’s determinations that: (1) the claimant’s AWW is $1,084.28; and (2) the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid, are supported by sufficient evidence and are affirmed.

A written decision is being issued in this case to clarify that Rule 122.5 does not establish a deadline for filing a DWC-3ME. Rule 122.5(f) defines the time period, up to the date the claimant reaches MMI, for which any change in employment status or wages must be reported to the carrier.

The preamble to Rule 122.5 clarifies that there is no deadline for filing a DWC-3ME (27 Tex. Reg. 4032, 2002). The following public comment and Texas Department of Insurance, Division of Workers’ Compensation (Division) response to Rule 122.5 states:

Comment: Commenter was concerned that the rule did not provide a timeframe in which to file a [DWC-3ME] which “will result in continuing uncertainty as to the proper AWW.” The commenter suggested adding a time limit to the rule so that claimants would have 30 days from the date they received the Employer’s Wage Statement to file their own [DWC-3MEs].

[Division] Response: The [Division] disagrees that the employee should have only 30 days to report the multiple employment wages. Employees may have difficulty obtaining wage information from non-claim employers and to put a limit on the amount of time the employee has to submit the information might punish the employee for the inactions of the non-claim employer (who is not required by statute to provide the information). It may turn out that the employee is only able to obtain the information from the Texas Workforce Commission. According to their process, wage reports are filed quarterly and subsequently loaded into database files where wage reports for given individuals are generated. Based on their schedule, a considerable gap in time exists, potentially six months, between the time the wages are earned and the time that a wage report reflecting the needed earning can be generated.

If a carrier receives a late wage statement that proves that the AWW that the carrier has been using to pay benefits is too high, the carrier is not prevented from using this new information even though the employer was in noncompliance by failing to timely file the report. Putting a limit on the amount of time the employee has to report the wages from a non-claim employer while not putting such a limit on a claim employer would result in an unwarranted double standard.

SUMMARY

The hearing officer’s determinations that the claimant’s AWW is $1,084.28, and the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid are supported by sufficient evidence and are affirmed.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 June 7, 2011. The hearing officer resolved the disputed issues by deciding that as of the date of the CCH, the respondent/cross-appellant (claimant) has sustained disability since March 23, 2011, only, and that the claimant’s average weekly wage (AWW) is $2,000.00.

The appellant/cross-respondent (carrier) appealed, disputing the hearing officer’s determinations of the claimant’s AWW and that portion of the hearing officer’s determination that the claimant had disability from March 23, 2011, through the date of the CCH. The claimant responded, urging affirmance of the AWW and that portion of the disability determination that was favorable to him. The claimant cross-appealed disputing that portion of the hearing officer’s determination that the claimant did not sustain disability from March 4 through March 22, 2011. The appeal file does not contain a response from the carrier to the claimant’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant sustained a compensable injury on (date of injury). The claimant testified that he injured his low back and head when he slipped and fell.

The hearing officer’s determination that the claimant sustained disability from March 23, 2011, through the date of the CCH only is supported by sufficient evidence and is affirmed.

The claimant testified that he worked for a non-claim employer in addition to the claim employer and requested that the wages from the non-claim employer be included in his AWW. The hearing officer stated in her discussion that the documentation provided substantiated the claimant’s position that he earned slightly over $1,000.00 during the weeks he worked for the employer, and earned an additional $1,000.00 per week from his non-claim employment.

Section 408.042 (based on a compensable injury that occurs on or after July 1, 2002) entitled “[AWW] For Part-Time Employee or Employee with Multiple Employment” sets out how the AWW is to be calculated.  Section 408.042(d) provides that the commissioner shall:

1. (1)prescribe a form to collect information regarding the wages of employees with multiple employment; and  

2. (2)by rule, determine the manner by which the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] collects and distributes wage information to implement this section.  

Section 408.042(e) provides:

For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.

28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, states in pertinent part:

(h)For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to Employee’s Multiple Employment Wage Statement), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section.  The employee’s AWW shall be the sum of the AWWs for each employer.

[omission]

(2)The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for Temporary Income Benefits for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5, effective May 16, 2002, states in pertinent part:

(b)For an injury which occurs on or after July 1, 2002, a claimant may file a Multiple Employment Wage Statement for each employer the employee was working for on the date of injury.

(c)If a claimant who is permitted by subsection (b) of this section chooses to file a Multiple Employment Wage Statement, it is the claimant’s responsibility to obtain the required wage information from the Non-Claim Employer(s), providing any necessary corrections to the wage information, and filing the information on the Multiple Employment Wage Statement with the insurance carrier and [Division].  The carrier is not required to make an adjustment to AWW until the employee provides a complete Multiple Employment Wage Statement as described in subsections (d) and (e) of this section. 

(d)The Multiple Employment Wage Statement shall include:

1. (1)the employee’s name, address, and social security number;  

2. (2)the date of the Non-Claim Employer’s hire of the employee;  

3. (3)the date of injury;  

4. (4)the Non-Claim Employer’s name, address, and federal tax identification number;  

5. (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. (6)the wage information required by subsection (e) of this section with documentation that supports the wage information being reported; and

7. (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.  

(e)The wage information required to be provided in a Multiple Employment Wage Statement includes the employee’s Non-Claim Employer wages, as defined in [Rule] 128.1 of this title (relating to [AWW]: General Provisions), earned during the 13 weeks immediately preceding the date of injury and the number of hours the employee worked to earn the wages being reported. The wages are limited to those reportable for federal income tax purposes.

There is no Multiple Employment Wage Statement filed by the claimant in evidence.  The sole documentary evidence submitted by the claimant are copies of his check stubs from the non-claim employer, which do not contain the required information under Rule 122.5(d)(2), (3), (4), and (7).  The claimant’s evidence does not comply with the statutory requirements of Section 408.042 and Rule 122.5 to document and verify wage payments.  Therefore, the hearing officer should have calculated the AWW based solely on the wages of the claim employer.  See Appeals Panel Decision (APD) 100497, decided July 1, 2010, and APD 100866, decided September 7, 2010.

In evidence is the wage statement for the claim employer showing that the claimant earned $3,271.14 in wages for the 3 weeks preceding the date of injury, the amount of time the claimant had worked for the employer. There was no evidence of a same or similar employee for similar services in full-time employment.  $3,271.14 divided by 3 equals $1,090.38.  Accordingly, we reverse the hearing officer’s determination that the claimant’s AWW is $2,000.00 and we render a new decision that the claimant’s AWW is $1,090.38.

SUMMARY

We affirm the hearing officer’s determination that the claimant sustained disability from March 23, 2011, through the date of the CCH only.

We reverse the hearing officer’s determination that the claimant’s AWW is $2,000.00 and we render a new decision that the claimant’s AWW is $1,090.38.The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

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 June 3, 2010. The issues before the hearing officer to be decided were:

1. (1)What is the average weekly wage (AWW)?

2. (2)Did the respondent (claimant) have disability from November 7, 2009, through March 29, 2010, resulting from an injury sustained on ____________?

3. (3)Is the appellant (carrier) entitled to reduce and/or suspend the claimant’s impairment income benefits (IIBs) to recoup previous overpayment of temporary income benefits (TIBs), and if so, in what amount?

The hearing officer determined that:

1. (1)The claimant’s AWW is $1,762.64;

2. (2)The claimant did not have disability from November 7, 2009, through March 29, 2010, resulting from an injury sustained on ____________; and

3. (3)The carrier is entitled to suspend the claimant’s IIBs to recoup its previous overpayment of TIBs in the amount of $10,352.69.

The carrier appealed the hearing officer’s AWW determination, contending that the hearing officer erred in her calculation of AWW based upon multiple employment. The appeal file does not contain a response by the claimant. The hearing officer’s disability determination was not appealed and has become final pursuant to Section 410.169. The hearing officer’s determination that the carrier is entitled to suspend the claimant’s IIBs to recoup its previous overpayment of TIBs in the amount of $10,352.69 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on ____________, while at work for the claim employer.

AWW

In the Background Information section of her decision, the hearing officer stated that:

The [c]laimant proved that her [AWW] is $1,762.64 based on documentary evidence showing she worked for two employers as a nurse for at least [13] weeks preceding ____________, the date she was injured while in the course and scope of employment for [the claim employer]. The [c]laimant’s wages for [the claim employer] totaled $10,681.42 and for the [non-claim employer] totaled $12,232.87.

The claimant asserted that her AWW should include income from her concurrent employment with the non-claim employer and the hearing officer calculated the claimant’s AWW based upon adding together the wages for the claim and non-claim employers. The hearing officer erred in her calculation of AWW as a matter of law. The claimant failed to comply with Section 408.042(d) and 28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, and Rule 122.5, effective May 16, 2002.

Section 408.042(d) provides that the commissioner shall:

1. (1)prescribe a form to collect information regarding the wages of employees with multiple employment; and

2. (2)by rule, determine the manner by which the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] collects and distributes wage information to implement this section.

Rule 128.1(h) amended effective May 16, 2002, states in pertinent part:

(h)For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to Employee’s Multiple Employment Wage Statement), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section. The employee’s AWW shall be the sum of the AWWs for each employer.

* * * *

(2)The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for [TIBs] for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5, effective May 16, 2002, states in pertinent part:

(b)For an injury which occurs on or after July 1, 2002, a claimant may file a Multiple Employment Wage Statement for each employer the employee was working for on the date of injury.

(c)If a claimant who is permitted by subsection (b) of this section chooses to file a Multiple Employment Wage Statement, it is the claimant’s responsibility to obtain the required wage information from the Non-Claim Employer(s), providing any necessary corrections to the wage information, and filing the information on the Multiple Employment Wage Statement with the insurance carrier and [Division]. The carrier is not required to make an adjustment to AWW until the employee provides a complete Multiple Employment Wage Statement as described in subsections (d) and (e) of this section.

(d)The Multiple Employment Wage Statement shall include:

1. (1)the employee’s name, address, and social security number;

2. (2)the date of the Non-Claim Employer’s hire of the employee;

3. (3)the date of injury;

4. (4)the Non-Claim Employer’s name, address, and federal tax identification number;

5. (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. (6)the wage information required by subsection (e) of this section with documentation that supports the wage information being reported; and

7. (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.

(e)The wage information required to be provided in a Multiple Employment Wage Statement includes the employee’s Non-Claim Employer wages, as defined in [Rule] 128.1 of this title (relating to [AWW]: General Provisions), earned during the 13 weeks immediately preceding the date of injury and the number of hours the employee worked to earn the wages being reported. The wages are limited to those reportable for federal income tax purposes.

There is no Multiple Employment Wage Statement filed by the claimant in evidence. The sole documentary evidence submitted by the claimant are copies of her check stubs from the non-claim employer, which do not contain the required information under Rule 122.5(d)(2), (3), (4), and (7). The claimant’s evidence does not comply with the statutory requirements to document and verify wage payments subject to Section 408.042 and Rule 122.5. The hearing officer should have calculated the AWW based solely on the wages of the claim employer. See Appeals Panel Decision 100497, decided July 1, 2010.

In evidence is the wage statement for the claim employer showing that the claimant earned $10,681.42 in wages for the 13 weeks preceding the date of injury. $10,681.42 divided by 13 results is $821.65. Accordingly, we reverse the hearing officer’s determination that the claimant’s AWW is $1,762.64 and we render a new decision that the claimant’s AWW is $821.65.

The true corporate name of the insurance carrier is AMERICAN ZURICH INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3232.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 April 28, 2010. The hearing officer resolved the disputed issues by deciding that the respondent’s (claimant) average weekly wage (AWW) is $1,124.16.

The appellant (carrier) appealed, disputing the hearing officer’s determination of the claimant’s AWW. The appeal file does not contain a response from the claimant.

DECISION

Reversed and remanded.

The sole issue to be decided at the CCH was the claimant’s AWW. It was undisputed that the claimant worked as a volunteer for the claim employer and that on __________, the claimant sustained a compensable injury while she was engaged in the exercise of her job duties as a volunteer for (claim employer). The evidence reflected that the claim employer paid the claimant $0.00. The record reflects that the claimant had concurrent employment with two other non-claim employers during the 13 weeks preceding the date of her injury or for some portion of the 13 weeks preceding the date of her injury. In evidence were Employer’s Wage Statements (DWC-3) from the two other non-claim employers that the claimant worked for during all or a portion of the 13 weeks preceding the date of her injury. The DWC-3 for the (employer 1) reflects that the claimant worked 5 hours per week for $20.00/hour in the 12 weeks prior to the date of injury and worked 10 hours in the 13th week prior to the date of injury. The claimant testified that she began working for (employer 2) on October 1, 2004, a date within 7 weeks from the date of injury.

Section 504.012(a) provides that a political subdivision may cover volunteer fire fighters, police officers, emergency medical personnel, and other volunteers that are specifically named. A person covered under this subsection is entitled to full medical benefits and the minimum compensation payments under the law. Section 408.042(c), effective for a claim for workers’ compensation benefits based on a compensable injury that occurs on or after July 1, 2002, provides that the AWW for an employee with multiple employment is equal to the sum of the AWWs computed under Sections 408.042(c)(2) and (3). Section 408.042(f) provides that the commissioner by rule may define methods to determine a fair and just AWW consistent with this section. 28 TEX. ADMIN. CODE § 128.1(h)(2) (Rule 128.1(h)(2)) provides that the portion of the employee’s AWW based upon employment with each “Non-Claim Employer” shall be calculated in accordance with Rule 128.3 of this title except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes. Rule 128.3(e) provides that if an employee has worked for less than 13 weeks prior to the date of injury, the wages used for the AWW calculation are those paid by the employee to a similar employee who performs similar services, but who earned wages for at least 13 weeks. If there is no similar employee at the employer’s business, the calculation is based on wages paid to a similar employee who performed similar services in the same vicinity, for at least 13 weeks. Rule 128.3(g) provides that if the methods set forth in this rule cannot be applied reasonably due to the irregularity of the employment or, if the employee has lost time from work, without remuneration, during the said 13-week period due to illness, weather, or other cause beyond the control of the employee, the commission may determine the employee’s AWW by any method that it considers fair, just, and reasonable to all parties and consistent with the methods established under this section. The Appeals Panel has previously held that Section 408.042 does apply for volunteers and that multiple employment wages can be considered in determining the AWW of a volunteer claimant. See Appeals Panel Decision (APD) 050140, decided March 14, 2005.

In Finding of Fact No. 3, the hearing officer found that the claimant worked for the claim employer less than the 13 consecutive weeks immediately preceding the injury. The evidence does not support this finding. The claimant testified that she had volunteered for the claim employer for 13 years. The evidence further reflected that the claimant had worked for a non-claim employer, employer 2, for less than 13 weeks prior to the date of injury.

In her Background Information, the hearing officer stated “[t]he payroll information that is in evidence indicates that the claimant earned $963.57 with [employer 2], $100.00 with [employer 1] and $81.00 as received when injured for [temporary income benefits]. Therefore, the [AWW] is $1,124.16.” The hearing officer stated that she used a fair, just, and reasonable method to calculate the AWW. The claimant did not work for a full 13 weeks prior to the date of injury for employer 2, a non-claim employer, and no evidence was presented regarding the wages of a same or similar employee for employer 2, a non-claim employer.

It was error for the hearing officer to include $81.00 in the calculation of the claimant’s AWW. The $81.00 is not wages paid to the claimant from the claim employer. See APD 050140, supra. The evidence reflected that the claimant received $0.00 from her claim employer. Additionally, the evidence reflects that for the 13-week period prior to the date of injury, the claimant earned $1,400.00 by employer 1 (a non-claim employer). We note that $1,400.00 divided by 13 weeks would result in $107.69 and not $100.00, the amount used by the hearing officer in her calculation of the claimant’s AWW. Further, the evidence reflects that the claimant earned $6,745.00 for the 13-week period prior to the date of injury from employer 2 (a non-claim employer). We note however that the evidence reflects the claimant was actually only paid by employer 2, $4,560.00 for the 13-week period prior to the date of injury. The hearing officer failed to make findings upon the AWW of employer 1 and employer 2, the non-claim employers. The figures used in the hearing officer’s discussion to calculate the claimant’s AWW do not add up to the amount of the AWW determined by the hearing officer ($1,124.16).

We reverse the hearing officer’s determination that the claimant’s AWW is $1,124.16. We remand this case to the hearing officer to make specific findings regarding the AWW for the claim employer and for each non-claim employer (employer 1 and employer 2) and then determine the claimant’s AWW.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RON O. WRIGHT, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

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 December 20, 2004. The hearing officer resolved the disputed issues by deciding that the appellant/cross-respondent’s (claimant) average weekly wage (AWW) was $1,082.89 and that the claimant’s weekly benefits, other than medical benefits, are to be paid at a maximum rate of $280.00. The claimant appealed the hearing officer’s determination that his weekly benefits, other than medical benefits, are to be paid at a maximum rate of $280.00. The claimant contends that Sections 408.042 and 504.012 are not in conflict with each other. The respondent/cross-appellant (self-insured) responded, urging affirmance of the determination that the claimant’s income benefits were limited to a weekly rate of $280.00. The self-insured additionally filed an appeal, arguing that the hearing officer erred in applying the fair and just AWW calculation methodology to a volunteer firefighter employed by a political subdivision that has made an election to provide increased benefits under Section 504.012(a); that the hearing officer erred in considering nonclaim employment income of a volunteer firefighter; and that the hearing officer erred in finding the AWW was $1,082.89. The appeal file does not contain a response from the claimant.

DECISION

Reversed and rendered.

The sole issue to be decided at the CCH was the claimant’s AWW. It was undisputed that the claimant worked as a volunteer for the self-insured and that on ______________, the claimant sustained damage or harm to the physical structure of his body while he was engaged in the exercises of his job duties with the self-insured. Although not reflected under Findings of Fact in the Decision and Order as stipulations, the hearing officer noted in the Background Information portion of the decision, and the record reflects, that the parties stipulated that in the 13 weeks before the date of injury the claimant earned $594.47 per week from (employer 1) and $88.42 per week from (employer 2). The hearing officer’s finding that at the time of the compensable injury, the claimant was employed as a volunteer, as described in Section 504.012(a) of the 1989 Act was not appealed.

Section 408.042(c), effective for a claim for workers’ compensation benefits based on a compensable injury that occurs on or after July 1, 2002, provides that the AWW for an employee with multiple employment is equal to the sum of the AWWs computed under Section 408.042(c)(2) and (3). Section 504.002 (the chapter providing for workers’ compensation insurance coverage for employees of political subdivisions) specifically incorporates all of Chapter 408 of the 1989 Act, entitled “WORKERS’ COMPENSATION BENEFITS,” to the extent that the provisions are not inconsistent with Chapter 504. However, Section 504.002 specifically excepts specific provisions of Chapter 408 concerning an action for exemplary damages in the instance of gross negligence or an intentional act or omission. The Appeals Panel has previously held that “we do not read Section 504.012(a) to be inconsistent with the provisions of Section 408.042.” See Texas Workers’ Compensation Commission Appeal No. 030735-s, decided May 12, 2003, and Texas Workers’ Compensation Commission Appeal No. 040639, decided May 13, 2004. The self-insured contends that the above cited cases are no longer valid authority on this issue due to a district court ruling regarding Appeal No. 030735-s, supra. The district court ordered that the decision in Appeal No. 030735-s is reversed in its entirety and set aside. In Texas Workers’ Compensation Commission Appeal No. 94994, decided September 9, 1994, the Appeals Panel held that the decision of a (city 1) District Court had no effect "beyond its factual context" and did not bind the Texas Workers’ Compensation Commission (Commission) as a matter of stare decisis in the Commission’s interpretation of the 1989 Act. Further, Rule of Appellate Procedure 47 concerning publication and citation of opinions was revised effective January 1, 2003. Present Rule 47.7 now provides opinions not designated for publication under the former rule “have no precedential value but may be cited with the notation, ‘(not designated for publication).’” See Carrillo v. State, 98 S.W.3d 789 (Tex.App.-Amarillo, 2003, pet. ref’d). District Court opinions are not reported and the same would apply.

The self-insured contends that “the correct analysis is to ignore Labor Code section 408.042, as only 504.012(a) is applicable to this case.” We disagree. It is undisputed that the claimant was an employee of the self-insured. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) provides that for employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by Rule 122.5, the carrier shall calculate the AWW using wages from all the employers. Section 504.002 which provides for the application of general workers’ compensation laws to coverage for the employees of political subdivisions, has been amended since the effective date (September 1, 1999) of Section 504.012 which provides that the governing body of a political subdivision may elect to provide compensation payments to a person covered that are greater than the minimum benefits provided. However, no exception has been added in Section 504.002 to exclude another portion of Chapter 408, specifically the application of Section 408.042 to employees in the instance of coverage for employees of political subdivisions. If the legislature had intended for Section 408.042 not to apply to volunteers, it simply could have specifically added an exclusion for Section 408.042 in Section 504.002.

Nor do we agree with the self-insured’s contention that the two sections are inconsistent and to apply Section 408.042 would render Section 504.012 meaningless. Even the self-insured acknowledges that Section 504.012(a) provides protection for the situation in which a volunteer has “no other gainful employment or only very low income amounts from other work.” The claimant contends in its appeal that Section 504.012(a) appears to be intended “to provide a minimum floor of protection to the volunteers, not a maximum amount of exposure to the political subdivision.”

The hearing officer found that “[w]ith respect to the employment from the claim[ed] injury, it is not possible to calculate Claimant’s [AWW] in the manner described by Section 408.041(a) or (b)” and further, found it would be just, fair, and reasonable to determine that claimant’s AWW from his claim employment is $400.00. For reasons set forth herein, we find Section 408.042 applicable in this case. The parties stipulated that the claimant earned $594.47 per week from employer 1 and $88.42 per week from employer 2. The employer’s wage statement for the self-insured indicated that the claimant did not earn any wages and as previously stated the hearing officer’s determination that at the time of his injury, the claimant was a volunteer for the self-insured was unappealed. Therefore, it is clear from the evidence that the self-insured paid the claimant $0. The hearing officer’s finding that the claimant was engaged in concurrent employment as described in Section 408.042(c) of the 1989 Act, which employment paid him a weekly wage of $682.89, was not appealed.

We reverse the hearing officer’s determination that the claimant has an AWW of $1,082.89 and render a new determination that the claimant has an AWW of $682.89.

We reverse Conclusion of Law No. 4 and that part of the decision that states that the claimant’s weekly benefits, other than medical benefits, are to be paid at a maximum rate of $280.00, and render a new determination that the claimant should be paid temporary income benefits (TIBs) based upon an AWW of $682.89.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Veronica L. Ruberto
Appeals Judge

CONCURRING IN PART AND DISSENTING IN PART:

I concur with that portion of the majority decision that determines that the claimant’s AWW is $682.89 as calculated pursuant to Section 408.042(c) and Rule 128.1(h).

I respectfully dissent from that portion of the majority decision that determines that the claimant should be paid TIBs based upon an AWW of $682.89, without providing for a maximum weekly income benefit of $280.00. The Appeals Panel previously held in Appeal No. 030735-s, that it did not read Section 504.012(a) to be inconsistent with the provisions of Section 408.042, and that decision was followed in Appeal No. 040639. The majority decision in the instant case follows those two decisions. I believe those decisions should be reconsidered.

The claimant was injured while working as a volunteer firefighter for the self-insured political subdivision. Pursuant to Section 504.012(a), as amended effective September 1, 1999, the self-insured political subdivision in this case elected to provide compensation payments to its volunteer firefighters in the weekly amount of $280.00. Section 504.002 provides in part that the provisions of Chapter 408, other than Sections 408.001(b) and (c), apply to and are included in Chapter 504 except to the extent that they are inconsistent with Chapter 504. Section 408.042(c) is not excluded from Chapter 504. However, if the claimant’s TIBs are calculated based on an AWW of $682.89, his weekly TIBs rate could be approximately $478.00 under Section 408.103(a). The self-insured elected to provide a weekly compensation payment of $280.00 to its volunteer firefighters pursuant to statutory authority in Section 504.012(a). The hearing officer determined that the claimant’s weekly income benefits are payable at a maximum rate of $280.00. If the self-insured political subdivision is required to pay a weekly income benefit amount in excess of $280.00, then that would be inconsistent with its statutory election under Section 504.012(a). I do not think that the provision in Section 408.042(g), that allows an insurance carrier to apply for and receive reimbursement from the subsequent injury fund for the amount of income benefits paid based on nonclaim employment, makes an income benefit payment that is in excess of the compensation payment elected by the political subdivision to be consistent with its election, because the payment itself would be in excess of that amount which it elected to pay under Section 504.012(a). I would affirm the hearing officer’s determination that the claimant’s weekly income benefits are payable at a maximum rate of $280.00.

Robert W. Potts
Appeals Judge

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 November 19, 2004. The hearing officer determined that the appellant (claimant) had not sustained a compensable injury on ____________, that the claimant did not have disability and that the claimant’s average weekly wage is $446.81.

The claimant appeals, contending that she had sustained a compensable injury and had disability. The respondent (self insured) responds, urging affirmance.

DECISION

The hearing officer’s decision has become final pursuant to Section 410.169 because the claimant’s appeal was not timely filed with the Texas Workers’ Compensation Commission (Commission).

Section 410.202(a) provides that to appeal the decision of a hearing officer, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal or a response. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(e) (Rule 143.3(e)) (formerly Rule 143.3(c)) provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer’s decision; and (2) received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(e) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 020172, decided March 12, 2002. Rule 102.5(d) provides in pertinent part that, for purposes of determining the date of receipt for those written communications sent by the Commission which require the recipient to perform an action by a specific date after receipt, unless the great weight of the evidence indicates otherwise, the Commission shall deem the received date to be five days after the date mailed.

Records of the Commission reflect that the hearing officer’s decision was mailed to the claimant on November 30, 2004. The cover letter to the hearing officer’s decision contains the same address for the claimant as is shown as the claimant’s return address on an envelope in the packet in which she mailed her appeal and as is shown on the CCH sign in sheet. Pursuant to Rule 102.5(d), the claimant is deemed to have received the hearing officer’s decision on December 5, 2004, unless the great weight of the evidence indicates otherwise. The claimant does not state when she received the hearing officer’s decision and therefore, we will use the deemed receipt date to calculate timeliness of the appeal. The 15th day after the claimant’s deemed date of receipt, excluding Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code, was December 27, 2004. The express mail envelope in which the claimant mailed her appeal to the Commission contains a United States Postal Service sticker dated December 28, 2004. Since the claimant’s request for appeal was mailed to the Commission after December 27, 2004, it was not timely filed with the Commission. Section 410.169 provides in pertinent part that a decision of a hearing officer regarding benefits is final in the absence of a timely appeal by a party.

The hearing officer’s decision and order have become final under Section 410.169.

The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Thomas A. Knapp

CONCUR:

Robert W. Potts
Appeals Judge

Margaret L. Turner
Appeals Judge