Sec. 408.041. AVERAGE WEEKLY WAGE. (a) Except as otherwise provided by this subtitle, the average weekly wage of an employee who has worked for the employer for at least the 13 consecutive weeks immediately preceding an injury is computed by dividing the sum of the wages paid in the 13 consecutive weeks immediately preceding the date of the injury by 13.
(b) The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals:
(1) the usual wage that the employer pays a similar employee for similar services; or
(2) if a similar employee does not exist, the usual wage paid in that vicinity for the same or similar services provided for remuneration.
(c) If Subsection (a) or (b) cannot reasonably be applied because the employee's employment has been irregular or because the employee has lost time from work during the 13-week period immediately preceding the injury because of illness, weather, or another cause beyond the control of the employee, the commissioner may determine the employee's average weekly wage by any method that the commissioner considers fair, just, and reasonable to all parties and consistent with the methods established under this section.
Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265 (H.B. 7), Sec. 3.094, eff. September 1, 2005.
Notes of Decisions
Texas Workers' Comp. Ins. v. Ashy, 972 S.W.2d 208 (Tex. App.—Beaumont 1998).
· cites it 2× “As previously stated, appellant contends that Ashy offered no proof to show that his missing time from work was due to "illness" or "weather" in compliance with TEX. LAB.CODE § 408.041(c). The evidence before the trial court adequately supports the fact that Ashy missed work for…”
Ins. Co. of State of Pa. v. Stelhik, 995 S.W.2d 939 (Tex. App.—Fort Worth 1999).
· cites it 2× “We hold that, based on the unique facts of this case, Stelhik’s wages from her concurrent employment with the TWU should be considered in calculating her average weekly wage.”
Joe Ballard v. Arch Ins. Co., 478 S.W.3d 950 (Tex. App.—Houston [14th Dist.] 2015).
“Rothenberg was appointed as the designated doctor in accordance with Texas Labor Code section 408.041. In challenging this issue before the Appeals Panel, Ballard asserted that Dr.”
In re Liberty Ins. Corp., 321 S.W.3d 630 (Tex. App.—Houston [14th Dist.] 2010).
“2009) (providing that, at request *633 of insurance carrier or employee, or on commissioner's own order, commissioner may order medical examination to resolve questions about impairment caused by compensa-ble injury; attainment of maximum medical improvement; extent of…”
Bryan P. Ferrell v. Univ. of Texas Sys., 583 S.W.3d 805 (Tex. App.—El Paso 2019).
· cites it 3× “” TEX.LAB.CODE ANN. § 408.041(a). The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals: (1) the usual wage that the…”
In re Liberty Ins. Corp. & Michelle Yaklin, No. 14-10-00229-CV (Tex. App.—Houston [14th Dist.] July 16, 2010).
“2009) (providing that, at request of insurance carrier or employee, or on commissioner’s own order, commissioner may order medical examination to resolve questions about impairment caused by compensable injury; attainment of maximum medical improvement; extent of employee’s…”
Tex. Lab. Code § 408.041(a): 4 cases
In re Liberty Ins. Corp., 321 S.W.3d 630 (Tex. App.—Houston [14th Dist.] 2010).
“2009) (providing that, at request *633 of insurance carrier or employee, or on commissioner's own order, commissioner may order medical examination to resolve questions about impairment caused by compensa-ble injury; attainment of maximum medical improvement; extent of…”
Ins. Co. of State of Pa. v. Stelhik, 995 S.W.2d 939 (Tex. App.—Fort Worth 1999).
“We hold that, based on the unique facts of this case, Stelhik’s wages from her concurrent employment with the TWU should be considered in calculating her average weekly wage.”
Bryan P. Ferrell v. Univ. of Texas Sys., 583 S.W.3d 805 (Tex. App.—El Paso 2019).
“” TEX.LAB.CODE ANN. § 408.041(a). The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals: (1) the usual wage that the…”
Tex. Lab. Code § 408.041(b): 1 case
Bryan P. Ferrell v. Univ. of Texas Sys., 583 S.W.3d 805 (Tex. App.—El Paso 2019).
“” TEX.LAB.CODE ANN. § 408.041(a). The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals: (1) the usual wage that the…”
Tex. Lab. Code § 408.041(c): 2 cases
Texas Workers' Comp. Ins. v. Ashy, 972 S.W.2d 208 (Tex. App.—Beaumont 1998).
“As previously stated, appellant contends that Ashy offered no proof to show that his missing time from work was due to "illness" or "weather" in compliance with TEX. LAB.CODE § 408.041(c). The evidence before the trial court adequately supports the fact that Ashy missed work for…”
Bryan P. Ferrell v. Univ. of Texas Sys., 583 S.W.3d 805 (Tex. App.—El Paso 2019).
“” TEX.LAB.CODE ANN. § 408.041(a). The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals: (1) the usual wage that the…”
Tex. Lab. Code § 408.041(e): 1 case
Texas Workers' Comp. Ins. v. Ashy, 972 S.W.2d 208 (Tex. App.—Beaumont 1998).
“As previously stated, appellant contends that Ashy offered no proof to show that his missing time from work was due to "illness" or "weather" in compliance with TEX. LAB.CODE § 408.041(c). The evidence before the trial court adequately supports the fact that Ashy missed work for…”
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