Texas Workers' Compensation

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§ 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.

The provisions of this §128.1 adopted to be effective January 11, 1991, 16 TexReg 118; amended to be effective May 16, 2002, 27 TexReg 4036; amended to be effective January 1, 2012, 36 TexReg 8860.

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At a Glance:

Title:

§ 128.1. Average Weekly Wage: General Provisions

Title:

Title 28. Insurance

Status:

Current

Usage:

New Law Rule

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