Court Finds Injured College Student Entitled to AWW Step-up

The El Paso Court of Appeals has reversed
the judgment of a trial court and concluded that the claimant’s average weekly
wage should be calculated using the “student worker adjustment” provisions of
in § 408.044. The court also found, however, that the benefits payable to the
employee should be capped under a special provision applicable to part time
employees of the University of Texas System.

In Ferrell
v. University of Texas System, No. 08-17-00065-CV (El Paso, May
17, 2019) the claimant and the University had appealed a Division decision
involving a severe eye injury sustained by a student who was employed by the
university as an undergraduate teaching assistant. Ferrell sustained chemical
burns of the cornea and conjunctival sac of his right eye and a superficial
injury to the cornea of his left eye when a flask of acid exploded near his
face while he was cleaning a UTEP lab. Ferrell lost use of an eye. He was later
diagnosed with post-traumatic stress disorder.

UTEP did not contest the legitimacy,
nature, extent, cause, or compensability of Ferrell’s injuries. But the parties
disagreed regarding the proper AWW on the claim as well as over whether
Ferrell’s benefits were subject to a cap based on 60% of the AWW.

The student worker adjustment provision in Tex. Lab. Code § 408.044 states:

(a) For computing impairment income benefits, supplemental income benefits, lifetime income benefits, or death benefits, the average weekly wage of an employee shall be adjusted to reflect the level of expected wages during the period that the benefits are payable if:

(1) the employee is a minor, apprentice, trainee, or student at the time of the injury;

(2) the employee’s employment or earnings at the time of the injury are limited primarily because of apprenticeship, continuing formal training, or education intended to enhance the employee’s future wages; and

(3) the employee’s wages would reasonably be expected to change because of a change of employment during that period.

TEXAS LAB. CODE § 503.021, which deals with part-time employees in the UT System, states:

A benefit under this section for an employee who is employed on less than a full workday basis may not exceed 60 percent of the employee’s average weekly wage as computed under Section 408.042.

The claimant argued that he was entitled
to the AWW increase but not subject to the benefit cap. The self-insured
university argued that the AWW increase did not apply, but the benefit cap did
apply. The court of appeals concluded that both provisions applied to the
claim.

We agree with Farrell that he qualifies for a student adjustment under Section 408.044, and we dispatch UTEP’s factual challenges on that basis quickly. UTEP does not dispute that Ferrell was a student, meaning that prong one is established. See Section 408.044(a)(1). Ferrell also offered evidence showing that UTEP itself limited his ability to pursue outside work while employed as a teaching assistant, as required by Subsection (a)(2). Specifically, UTEP policy stated: “A full time student who has a TA cannot hold an additional job at the same time. If you take another job on the side, you are risking your teaching assistantship.” [Emphasis in orig.]. UTEP in its brief does not point to any contravening evidence on the issue of Ferrell’s ability to work being limited due to education purposes, and since the policy represents more than a scintilla of evidence, we hold that Ferrell met his burden on the second prong. Finally, with respect to the third prong of Section 408.044 located in Subsection (a)(3), UTEP maintains that Ferrell provided no evidence showing his wages were expected to go up in the future. But the record shows that prior to his injury Ferrell was conditionally accepted into a PhD program in chemistry and that PhD teaching assistants earned higher wages that undergraduate teaching assistants. UTEP’s no-evidence contention here is without merit.

The court next concluded that the 60%
benefit cap applied to the claim.

While the 60 percent cap on part-time employee recovery for employees of the UT System may be static under Section 503.021, the average weekly wage amount to which the 60 percent cap applies is variable per Section 408.041 and 408.042. UTEP may be correct that the 60 percent cap applies to all part-time workers, including student workers. But UTEP is incorrect in asserting that the 60 percent cap also freezes the average weekly wage amount in time at the point of injury. That stretches the language of Section 503.021 cap too far. Per the terms of Section 503.021, the average weekly wage amount is set by Sections 408.041 and 408.042, but those calculation methods also by their own terms allow for the Division to adjust the average weekly wage upward for student workers under the circumstances in Section 408.044. And by Section 408.044’s own terms, the student worker adjustment is required. None of these statutes are in conflict. By reading the 60 percent cap as being static and the average weekly wage as being variable and subject to Section 408.044’s adjustment provisions, we can give effect to both statutory sections without nullifying either. Section 503.021 caps recovery at 60 percent of whatever the average weekly wage is once any student worker adjustments are taken into account.

The court reversed the trial court’s
judgment and remanded the case for further proceedings consistent with the
opinion.