28 Tex. Admin. Code § 128.1 - Average Weekly Wage: General Provisions
(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.
Notes
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