Current through Reg. 49, No. 38; September 20, 2024
(a)
The average weekly wage (AWW) calculation for an injured employee (employee)
shall be calculated depending on whether the employee was employed in one of
the following five courses of employment:
(1)
full-time (see §
128.3
of this title (relating to Average Weekly Wage Calculation for Full-Time
Employees, And For Temporary Income Benefits For All Employees));
(2) part-time (see §
128.4
of this title (relating to Average Weekly Wage Calculation For Part-Time
Employees));
(3) seasonal (see
§
128.5
of this title (relating to Average Weekly Wage Calculation for Seasonal
Employees));
(4) school district
employed (see §
128.7
of this title (relating to Average Weekly Wage for School District Employees));
and
(5) multiple employment (see
Texas Labor Code §
408.042
and subsection (h) of this section).
(b) Except as provided by §128.7, an
employee's wage, for the purpose of calculating the AWW, shall include:
(1) all pecuniary wages (as defined by §
126.1
of this title (relating to Definitions Applicable to All Benefits)) paid by the
employer to the employee even if the employer has continued to provide the
wages after the date of injury (in which case these wages could be considered
post-injury earnings under §
129.2
of this title (relating to Entitlement to Temporary Income Benefits));
and
(2) all nonpecuniary wages (as
defined by §
126.1
of this title) paid by the employer to the employee prior to the compensable
injury but not continued by the employer after the injury (though only during a
period in which the employer has discontinued providing the wages).
(c) An employee's wage, for the
purpose of calculating the AWW, shall not include:
(1) payments made by an employer to reimburse
the employee for the use of the employee's equipment, for paying helpers, for
reimbursing actual expenses related to employment such as travel related
expenses (e.g. meals, lodging, transportation, parking, tolls, and porters), or
reimbursing mileage up to the state rate for mileage; or
(2) any nonpecuniary wages continued by the
employer after the compensable injury. However, except as provided by §
128.7
of this title and Texas Labor Code §
408.042(e),
if the employer discontinues providing nonpecuniary wages, the AWW shall be
recalculated and these discontinued nonpecuniary wages shall be
included.
(d) The AWW
shall be calculated using gross wages.
(e) If a carrier determines or is notified
that the employee's AWW is different than what the carrier had previously
determined (either as a result of subsection (c)(2) of this section, receipt of
an updated wage statement, or by operation of other adjustments
permitted/required under this title), the carrier shall adjust the AWW and
begin payment of benefits based upon the adjusted AWW no later than the first
payment due at least seven days following the date the carrier receives the new
information regarding the AWW.
(f)
The carrier shall provide notice to the employee and the division of any
adjustments to the AWW and its affect on benefits in accordance with the
requirements of §
124.2
of this title (relating to Carrier Reporting and Notification
Requirements).
(g) Additional
adjustments to the AWW may be made in specific circumstances for seasonal
employees and school district employees (see §
128.5
and §
128.7
of this title, respectively), and for employees who are also minors,
apprentices, trainees, or students on the date of injury (see §
128.6
of this title (relating to Average Weekly Wage Adjustment For Certain Employees
Who Are Also Minors, Apprentices, Trainees, or Students)).
(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 §
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.
(1) The portion of the AWW
that is based upon employment with the "Claim Employer" (as the term is defined
in §
122.5
of this title) shall be calculated in accordance with the rule in this chapter
which would be used to calculate the employee's AWW if the employee did not
have multiple employment.
(A) This portion of
the AWW may be different for calculating Temporary Income Benefits (TIBs) than
it is for calculating other types of benefits as provided in other sections of
this title (such as where the wages may be adjusted for a part-time employee
under §
128.4
of this title).
(B) This portion of
the AWW shall be adjusted if the Claim Employer discontinues providing a
nonpecuniary wage that the employer had previously continued after the date of
injury.
(2) The portion
of the employee's AWW based upon employment with each "Non-Claim Employer" (as
the term is defined in §
122.5
of this title) shall be calculated in accordance with §
128.3
of this title (relating to Average Weekly Wage 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.
(A) This portion of the AWW of an employee
whose employment was limited by the Non-Claim Employer to less than full-time
but whose employment was not so limited as a regular course of conduct shall be
adjusted to the weekly wage level the employee would have attained by working a
full-time workweek at the employee's average rate of pay.
(B) Once calculated correctly, the portion of
the AWW based upon employment with the Non-Claim Employer(s) does not vary by
benefit type.
