This guide endeavors to provide basic information regarding disability in a Texas Workers' Compensation claim as well as Temporary Income Benefits and when they may be payable.
Average Weekly Wage
To determine rates of payment of various types of indemnity benefits one must first know the average weekly wage (AWW). The average weekly is based upon the wages earned for the thirteen weeks immediately preceding the date of the compensable injury. If the claimant did not work for the employer for thirteen weeks prior to the date of the injury then it is permissible to use the usual wages the employer pays a same or similar employee, if one exists. If one does not exist the parties may use the usual wages paid in the vicinity for the same or similar services. Lastly, if none of those calculations would apply then the average weekly wage may be calculated by any method the commissioner considers fair, just, and reasonable to all parties.
If an injured worker is unable to obtain or retain employment at his pre-injury wage as a result of the compensable injury, then by definition he has sustained disability. Temporary Income Benefits are generally paid weekly. Temporary Income Benefits are income replacement benefits. They do not accrue unless the the Claimant sustains disability for at least one week. If the Claimant sustains disability for more than one week, the Temporary Income Benefits begin to accrue on the eighth day of disability. If the disability continues for two weeks or longer after the date it begins, compensation shall be computed from the date the disability begins. An injured worker is entitled to Temporary Income Benefits if the employee has disability and has not attained Maximum Medical Improvement. Maximum Medical Improvement may be attained either clinically or statutorily. To reach Maximum Medical Improvement means an injured worker has reached the date at which "based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated." Clinically a treating doctor, a doctor to whom the Claimant was referred by his treating doctor for the purpose of determining whether the Claimant has reached Maximum Medical Improvement, a Designated Doctor, or a post-Designated Doctor required medical examiner may certify the Claimant at Maximum Medical Improvement at an examination for that purpose. Maximum Medical Improvement may also be attained statutorily when the Claimant reaches, "the expiration of 104 weeks from the date on which income benefits begin to accrue." Again, income benefits begin to accrue on the eighth day of disability, therefore the calculation of 104 weeks does not begin on the date of the first date of disability; however, it begins on the eighth day of disability. Maximum Medical Improvement may be postponed in a very limited scope when a Claimant has spinal surgery.
In general a Claimant is entitled to receive seventy percent (70%) of the amount computed by subtracting the employee's weekly earnings after the injury from the employee's average weekly wage. To put this in easier terms the Claimant is entitled to Temporary Income Benefits at an amount of 70% of his average weekly wage. However; some injured workers have the ability to return to work in a light duty capacity, earning less than their pre-injury average weekly wage. In that case those Post-Injury Earnings (PIE) are to be deducted from the average weekly wage amount and the 70% is then paid based upon the result. If an employee earned less than $8.50 per hour prior to his compensable injury, he is entitled to receive seventy-five percent (75%) of his average weekly wage for the first 26 weeks of disability and 70% thereafter. Post-Injury Earnings include; all pecuniary wages paid to the employee after the date of injury including work performed while on modified duty, any employee contributions to benefits such as health insurance normally paid by the employee but paid by employer agreement, the weekly wages offered as part of a bona fide job offer, the value of any full or partial days of sick leave or annual leave the employee has voluntarily elected to use after the date of the injury and any salary continuation paid due to contractual obligation, employer policy, written agreement with the employee. Post-Injury Earnings do not include; any non-pecuniary wages, any accrued sick or annual leave that the employer did not voluntarily elect to use, wages paid as salary supplementation, any money which would be considered PIE paid by the employer but which the employer attempts or intends to seek reimbursement for from the employee or carrier, or any money paid to an employee under an indemnity disability program paid for by the employee separate from workers' compensation.
Bona Fide Offers of Employment
When a Claimant has been given a light or modified duty release to return to work an employer or an insurance carrier has the right to request the treating doctor to provide a Work Status Report by providing the treating doctor a set of functional job descriptions which list modified duty positions which the employer has available for the injured employee to work. Only an employer has the right or the ability to offer employment commensurate with the light or modified duty restrictions. If the employer tenders to the employee a Bona Fide Offer of Employment, the offer of employment has special status and may be used by the insurance carrier to limit their exposure to the amount of Temporary Income Benefits paid to the injured workers. In order for an offer of employment to be a Bona Fide Offer of Employment it must comply with the rule, if there are any technical deficiencies, the offer of employment is not, by definition, a Bona Fide Offer of Employment. According to the rule in order for the offer of employment to be bona fide it shall, "be made to the employee in writing and in the form and manner prescribed by he Commission." If an offer of employment is indeed bona fide, the insurance carrier may then take credit for the wages which could have been earned by the employee regardless of whether the injured workers accepts the Bona Fide Offer of Employment or not. The wages are deemed to be Post-Injury Earnings and are factored into the calculation of the Temporary Income Benefits rate.
Adjustment of Temporary Income Benefits
A carrier shall adjust the weekly amount of Temporary Income Benefits paid to the injured employee as necessary to match the fluctuations in the employee's weekly earning's after the injury. If the Claimant is still employed by the employer at the time of the injury, the employer is responsible for informing the carrier of changes in the employee's weekly earnings after the injury. If the employee is no longer employed by the employer at the time of the injury, the employee is responsible to provide information to the insurance carrier regarding the existence and amount of any Post-Injury Earnings. Likewise, seasonal employees are subject to having their average weekly wage adjusted to an amount which would more accurately reflect the wages the employee could reasonably have expected to earn during the period the Temporary Income Benefits are paid. Seasonal employees are employees whose employment is by nature seasonal. Some examples are those employees who work in a cotton gin during gin season only and teachers and school support staff who have the summers off. During times for which the employee would not be earning wages they are not paid Temporary Income Benefits. An exception to this would be if the employee had a summer job which they routinely worked each year, and at which they would have worked but for the compensable injury. In those cases, the employee would have earned wages and thusly should be paid Temporary Income Benefits. Temporary Income Benefits may also be stopped by the insurance carrier if the Claimant fails to attend a Designated Doctor's examination and has failed to contact the Designated Doctor to reschedule the examination prior to the examination. Moreover, should an insurance carrier request and have approved a Required Medical Examination which the Claimant fails to attend and for which the Claimant has failed to contact the Required Medical Examination physician within twenty-four (24) hours prior to the appointment to reschedule said appointment, the insurance carrier may then cease payment of the Temporary Income Benefits. Extent of injury can play a role in the amount of Temporary Income Benefits received. Disability should be less for a sprained ankle than for a broken ankle. The sprained ankle should heal more quickly allowing the Claimant to return to work earlier. A fractured ankle may mean surgical intervention requiring extended therapy and resulting in a longer period of disability.