28 Tex. Admin. Code § 128.3 - Average Weekly Wage Calculation for Full-Time Employees, and for Temporary Income Benefits for All Employees

(a) All income benefits for full-time employees are based upon an average weekly wage calculated according to this rule. A full-time employee is one who regularly works at least 30 hours per week and that schedule is comparable to other employees of that company and/or other employees in the same business or vicinity who are considered full-time.

(b) Temporary income benefits are based on an average weekly wage which is calculated according to this rule for all employees. However, the average weekly wage for determining temporary income benefits of seasonal employees may be periodically adjusted as set out in § 128.5(c) of this title (relating to Average Weekly Wage Calculation for Seasonal Employees).

(c) The average weekly wage for impairment income, supplemental income, lifetime income, and death benefits shall be calculated according to this section concerning full-time employees, § 128.4 of this title (relating to Average Weekly Wage Calculation for Part-Time Employees), or § 128.5 of this title (relating to Average Weekly Wage Calculation for Seasonal Employees). The average weekly wage for an employee who is also a minor, an apprentice, a trainee, or a student shall be adjusted for determining these income benefits (but not temporary income benefits), according to the procedure described in § 128.6 of this title (relating to Average Weekly Wage Adjustment for Certain Employees Who Are Also Minors, Apprentices, Trainees, or Students).

(d) If an employee has worked for 13 weeks or more prior to the date of injury, or if the wage at time of injury has not been fixed or cannot be determined, the wages paid to the employee for 13 weeks immediately preceding the injury are added together and divided by 13. The quotient is the average weekly wage for that employee.

(e) If an employee has worked for less than 13 weeks prior to the date of injury, the wages paid to that employee are not considered. Instead, the wages used for the average weekly wage calculation are those paid by the employer 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. When a similar employee is identified, the wages paid to that person for the 13 weeks immediately preceding the injury are added together, and divided by 13. The quotient is the average weekly wage for the injured employee.

(f) For purposes of computing average weekly wage under subsection (e) of this section, the following definitions apply:

(1) a similar employee is a person with training, experience, and skills and wages that are comparable to the injured employee. Age, gender, and race shall not be considered;

(2) similar services are tasks performed or services rendered that are comparable in nature to, and in the same class as, those performed by the injured employee, and that are comparable in the number of hours normally worked.

(g) 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 average weekly wage by any method that it considers fair, just, and reasonable to all parties and consistent with the methods established under this section.

Notes

28 Tex. Admin. Code § 128.3

The provisions of this §128.3 adopted to be effective January 11, 1991, 16 TexReg 118.