(a) This rule applies only to school district employees injured on or after December 1, 2001. The calculations in this rule apply to the portion of the employee's average weekly wage (AWW) based upon the employee's employment with the school district where the school district is the “Claim Employer” as that term is used in § 122.5 of this title (relating to Employee's Multiple Employment Wage Statement). The AWW of a school district employee injured before December 1, 2001, is computed using the law and commission rules in effect on the date of the injury.
(b) For determining the amount of temporary income benefits of school district employees under Texas Labor Code Chapter 504, the AWW is computed on the basis of wages earned in a week. “Wages earned in a week” are equal to the amount that would be deducted from an employee's salary if the employee were absent from work for one week and the employee did not have personal leave available to compensate the employee for lost wages for that week. For this calculation “wages” includes only pecuniary wages.
(c) For determining the amount of temporary income benefits of a school district employee, the AWW shall be computed as follows.
(1) For a school district employee working under a written contract with the school district, the AWW shall be computed by dividing the amount the employee would have been paid had the employee fully completed the terms of the contract (including any stipend the employee was earning or scheduled to receive under the contract) by:
(A) the number of days that the employee was required to work under that contract and multiplied by five (if the contract has specified the number of work days); or
(B) the number of months that the contract was to cover and then dividing the result by 4.34821.
(2) For a school district employee who is employed on a non-written contract basis (i.e. hourly, daily, salaried, or other basis), the AWW shall be computed by dividing the total gross wages earned in the previous 13-week period immediately preceding the date of injury by 13.
(d) The AWW for computing temporary income benefits may be increased or decreased to more accurately reflect wages the school district employee reasonably could expect to earn during the period for which temporary income benefits are paid.
(1) An insurance carrier (carrier) may adjust the AWW based on evidence of earnings.
(2) A school district employee may request adjustments by submitting evidence of earnings to the carrier.
(3) For a period a school district employee would not have earned wages, the AWW may be adjusted to zero and no minimum benefit payment may be required.
(e) For determining the amount of impairment income benefits, lifetime income benefits, supplemental income benefits, or death benefits, the AWW shall be computed in accordance with this subsection using only pecuniary wages.
(1) The carrier shall add together the total wages earned by the school district employee during the 12 months immediately preceding the injury and dividing the result by 50 weeks.
(2) If the school district employee provides wage information from other employers for whom the employee worked in the 12 months immediately preceding the injury, these wages shall be included in the calculation of the AWW. Note that for injuries on or after July 1, 2002, the effect of wages from a Non-Claim Employer (as the term is defined in § 122.5 of this title (relating to Employee's Multiple Employment Wage Statement)) on the employee's AWW is governed by § 128.1(h)(2) of this title (relating to Average Weekly Wage: General Provisions).
(f) In the event the school district employee and/or carrier believes that the AWW computed based on the calculations in this rule does not reflect the true AWW, the employee and carrier may enter into a written agreement regarding the AWW or request a benefit review conference.
The provisions of this § 128.7 adopted to be effective May 16, 2002, 27 TexReg 4036.