GQ Corner
Q. Is a claimant due per diem? Should that be included in the wage statement?
A. A per diem is not part of the employee’s wages if it is paid by the employer for specific reasons:
Rule 128.1 (c) says:
(c) An employee’s wage, for the purpose of calculating the AWW, shall not include:
(1) payments made by an employer to reimburse the employee for the use of the employee’s equipment, for paying helpers, for reimbursing actual expenses related to employment such as travel related expenses (e.g. meals, lodging, transportation, parking, tolls, and porters), or reimbursing mileage up to the state rate for mileage; or
But, in the definition of pecuniary wages (which are part of the AWW), it is a little bit unclear:
Pecuniary wages are defined in Rule 126.1:
(3) Pecuniary Wages–Wages paid to an employee in the form of money. Examples of pecuniary wages include, but are not limited to: (A) Hourly, weekly, biweekly, monthly (etc.) wages; (B) Salary; (C) Piecework compensation; (D) Any monetary allowance such as for health insurance premiums, vehicle/fuel, food/meals, clothing/uniforms, laundry/cleaning, or lodging/housing/rent; (E) Monetary bonuses earned or accrued by the employee; and (F) Commissions.
So it depends upon how the claimant’s payments are made and what they are supposed to cover. If the per diem covers reimbursement for use of the claimant’s own equipment, or to allow the claimant to pay the claimant’s helpers, it is not included in the AWW. If the per diem is a reimbursement for the claimant’s actual expenses, it is not included in the AWW. However, if it is a flat rate paid all the time, that is not ever adjusted based upon the actual expenses incurred, that will likely be considered a pecuniary wage.
Q. I have a lifeguard that is receiving TIBs and her job ended yesterday and she goes back to school tomorrow. Do I still continue TIBs or I can stop it? She does not have a work release yet.
A. If the claimant has no history of wages after the summer, then Rule 128.5 would allow the AWW to be adjusted to $0 for purposes of TIBs, because the pay from the employer is periodic (only over the summer).
Rule 128.5
128.5. Average Weekly Wage Calculation for Seasonal Employees.
(a) A seasonal employee is an employee who as a regular course of conduct engages in seasonal or cyclical employment, which may or may not be agricultural in nature that does not continue throughout the year.
(b) The average weekly wage used to determine temporary income benefits for seasonal employees shall be determined according to the procedure described in §128.3(d) or (e) of this title (relating to Average Weekly Wage Calculation for Full-Time Employees, and for Temporary Income Benefits for All Employees), subject to the periodic adjustment described in this rule.
(c) The average weekly wage for computing temporary income benefits may be increased or decreased to more accurately reflect the seasonal nature of the employment, if such an adjustment would more accurately reflect the wages the employee could reasonably have expected to earn during the period that temporary income benefits are paid. Evidence of earnings shall be submitted at the time an adjustment is requested. The evidence should include proof of the employee’s earnings in corresponding time periods of previous years. In case of a dispute, the commission shall set a benefit review conference to consider whether an adjustment should be made.
(d) The average weekly wage used to determine impairment income benefits, lifetime income benefits, supplemental income benefits, or death benefits for a seasonal employee shall be calculated by:
(1) adding together the total wages received by the employee in the 12 months preceding the date of injury and dividing the result by 50; or
(2) if it is impractical to compute the average weekly wage as provided by paragraph (1) of this subsection, another fair, just, and reasonable method as determined in a benefit review conference if requested by the person claiming income benefits or the insurance carrier.
The provisions of this §128.5 adopted to be effective January 11, 1991, 16 TexReg 118
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