(a) Once temporary income benefits (TIBs) accrue, an injured employee (employee) is entitled to TIBs to compensate the employee for lost wages due to the compensable injury during a period in which the employee has disability and has not reached maximum medical improvement.
(b) Lost wages are the difference between the employee’s gross average weekly wage (AWW) and the employee’s gross Post-Injury Earnings (PIE). If the employee’s PIE equals or exceeds the employee’s AWW, the employee has no lost wages.
(c) PIE shall include, but not be limited to, the documented weekly amount of:
(1) all pecuniary wages paid to the employee after the date of injury including wages based on work performed while on modified duty and pecuniary fringe benefits which are paid to the employee whether the employee has returned to work or not;
(2) any employee contribution to benefits such as health insurance that the employee normally pays but that the employer agrees to pay for the employee in order to continue the benefits (which does not include the portion of the benefits that the employer normally pays for);
(3) the weekly amount of any wages offered as part of a bona fide job offer which is not accepted by the employee which the insurance carrier (carrier) is permitted to deem to be PIE under § 129.6 of this title (relating to Bona Fide Offers of Employment);
(4) the value of any full days of accrued sick leave or accrued annual leave that the employee has voluntarily elected to use after the date of injury;
(5) the value of any partial days of accrued sick leave or accrued annual leave that the employee has voluntarily elected to use after the date of injury that, when combined with the employee’s TIBs, exceeds the AWW; and
(6) any monies paid to the employee by the employer as salary continuation based on:
(A) a contractual obligation between the employer and the employee including through a collective bargaining agreement;
(B) an employer policy; or
(C) a written agreement with the employee.
(d) PIE shall not include:
(1) any non-pecuniary wages paid to the employee by the employer after the injury;
(2) any accrued sick leave or accrued annual leave that the employee did not voluntarily elect to use;
(3) any wages paid by the employer as salary supplementation as provided by Texas Labor Code, § 408.003(a)(2);
(4) any moneys paid by the employer which would otherwise be considered PIE under subsection (c) of this section but which the employer attempts or intends to seek reimbursement from the employee or carrier; or
(5) any money paid to an employee under an indemnity disability program paid for by the employee separate from workers’ compensation.
The provisions of this § 129.2 adopted to be effective December 26, 1999, 24 TexReg 11420.