FOLIO

Calculating AWW when Claimant Worked Less than 13 Weeks Prior to the Injury

Jan 6, 2025 | by FOL

If the claimant worked fewer than 13 weeks pre-injury, when it is appropriate to use similar employee wages, and when should Carrier utilize a “just and fair” methodology? It is important to remember that the AWW for different types of employees, in different benefit periods, is calculated differently.

In Chapter 128, the use of wages from a “similar employee” or the “just and fair” method is authorized only in the following situations:

• • • • Full-Time Employees: Per 28 TAC §128.3(e), if a full-time employee has worked fewer than 13 weeks prior to the date of injury, the average weekly wage (AWW) calculation utilizes the wages of a similar employee who has performed similar services for at least 13 weeks. The “just and fair” method can only be used for employees who were employed during the 13-week period.
      • Part-Time Employees: According to 28 TAC §128.4(f), if a part-time employee’s work history is insufficient to calculate the AWW, the wages of a similar employee must be used. The “just and fair” method is not permitted in this context.
      • Seasonal Employees: Under 28 TAC §128.5, the rule incorporates §128.3(d) and (e), allowing for the use of a similar employee’s wages. However, the “just and fair” method is not permitted for Temporary Income Benefits (TIBs), although it can be used for calculating other income benefits.
      • Employees Who Are Minors, Apprentices, Trainees, or Students: Per 28 TAC §128.6, all of Rule 128.3(b), including the similar employee and “just and fair” methods, is incorporated for TIBs. For calculating other income benefits, adjustments must follow the methods outlined in subsections (d), (e), and (f).

In contrast, the use of similar employee wages is not authorized for:

• • • • School District Employees: Per 28 TAC §128.7, the AWW for school district employees is determined solely based on their actual wages, without reference to similar employees. The statute permits a very limited use of the “just and fair” method during non-TIBs benefits periods, but only if “the employee did not earn wages during the 12 months immediately preceding the date of the injury.” Notably, Section 408.0446 allows these wages for benefits other than TIBs to include income from any employer, not just the school district. See subsection (e)(2) of Rule 128.7.

Therefore, the use of similar employee wages is not authorized for school district employees.

Please reach out to the attorneys at FOL should you ever need assistance calculating AWW on a claim: gqs@fol.com.