Multiple Employment Employees in Texas Workers’ Compensation Litigation Matters

Multiple Employment Employee.  [Cross-reference:  Multi employment AWW dispute (W06); Entitlement to multi employer benefits (I25)].  For employees injured on or after July 1, 2002, when an IW is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IW using the wages from all of the employers.  For this purpose, the IW is required to submit a Multiple Employment Wage Statement to the IC.  Section 128.1(h).

Claim Employers.  The claim employer is the employer with whom the IW filed a claim for workers’ compensation benefits, and for whom the IW was working at the time of the injury.  Section 122.5(a)(1).  The portion of the AWW based on employment with the claim employer shall be calculated according to how the IW’s AWW would be determined if the IW did not have multiple employment.  Section 128.1(h)(1).

Non-Claim Employers.  A non-claim employer is any employer other than the claim employer, who the IW was employed by on the DOI.  Section 122.5(a)(2).  An IW who was employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.

The portion of the IW’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13.  If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks.  If there is no similar employee at the employer’s business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity.  The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13.  Section 128.1(h)(2).  Wages used to determine AWW from a non-claim employer shall include only those wages reported for federal income tax purposes.  Section 408.042(e); Section 128.1(h)(2).  The IW must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment.  APD 030164-s.  The IW has the burden to establish the wages earned from the non-claim employer.  APD 052864-s.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.