|(a) An insurance carrier (carrier) shall promptly initiate
the payment of income benefits as required by the Workers' Compensation Act
(Act). To expedite payment, the carrier shall presume that multiplying the
employee's hourly rate times the average number of hours in the employee's
standard work week, or, if such information is not available, that the employer's
last payment to the employee for personal services based on a full week's
work (a partial work week shall be prorated for a full week) accurately reflects
the employee's average weekly wage (AWW) until:
(1) the employer files a complete wage statement required by §120.4
of this title (relating to Employer's Wage Statement); or
(2) the correct AWW is determined by other evidence (such as
that described in subsections (b) and (c) of this section), if the employer
does not file a complete wage statement or if the employee files an Employee's
Multiple Employment Wage Statement in accordance with §122.5 of this
title (relating to Employee's Multiple Employment Wage Statement).
(b) In the absence of a properly completed wage statement,
the carrier shall calculate the correct wage by using available wage information
in a manner which is fair, just, and reasonable, and which involves a methodology
that allows the closest approximation of a calculation based upon a 13 week
average as required by this chapter (for example, pecuniary wages would be
included regardless of whether the employer continues them and earnings after
the date of injury would not be included). Subsection (c) of this section
provides examples of how to do this.
(c) This subsection provides a non-inclusive list of methods
that carriers can use to calculate the correct AWW using evidence other than
a complete wage statement. There may be other, similar but unlisted methods
that are also appropriate in a given situation.
(1) For a salaried employee, paid on monthly or semi-monthly
basis, whose salary has not changed in the 13 weeks prior to the compensable
injury, the carrier may presume that the AWW is equal to 3 months of wages
divided by 13.
(2) For an employee on whom the carrier receives 14 weeks of
wage information but is unable to identify the amount of the wages paid in
the 14th week (thus leaving 13 usable weeks), the carrier may presume that
the AWW is equal to the 14 weeks of wages divided by 14.
(3) For an employee on whom the carrier receives less than
13 weeks of wage information because the employee was not employed with the
employer for 13 weeks prior to the injury, the carrier may presume that the
AWW is equal to the amount of wages paid divided by the number of weeks for
which the wages were earned.
(d) Upon receipt of a properly completed wage statement the
carrier shall recalculate the AWW in accordance with the applicable rule(s).
(e) If, at the time that income or death benefits first accrue,
the carrier has not received a complete wage statement as required by §120.4
of this title (relating to Employer's Wage Statement), the carrier shall notify
the employer that the wage statement is now required under the Statute and
(f) If a carrier receives a wage statement that indicates that
the employee was provided nonpecuniary wages prior to the date of injury but
that does not indicate whether the employer is going to continue them or not,
the carrier shall assume that the nonpecuniary wages are not being continued
by the employer until and unless the carrier is able to verify that the nonpecuniary
wages are being continued by the employer.
(g) In the event that the claimant or the carrier believes
that the AWW computed by following the calculations in this rule does not
reflect the true AWW, the claimant and carrier may enter into a written agreement
on the AWW or request a benefit review conference.
|Source Note: The provisions of this §128.2 adopted to be effective January 11, 1991, 15 TexReg 118; amended to be effective September 1, 1993, 18 TexReg 5213; amended to be effective May 16, 2002, 27 TexReg 4036