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.

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 claimant who was involved in an MVA. He alleges one of his filling fell out during the accident. I certainly have no way of proving otherwise as he has not been to a dentist in many years. I have confirmed with dental evaluation that an old filling is missing, but of course, the dentist says now it may result in possible root canal, which is a lot more expensive.

Question: Is the loss of a filling an injury under TX law such that it has damage or harm to the physical structure of the body? I see this almost like situations where prescription glasses are damaged in an accident and is not covered. There is not any noted damage to the tooth just the filling being gone.

A. If the damage was solely to the filling and not any physical part of the clmt’s mouth or teeth, then based on my analysis the carrier would not be liable for replacing the filling. If, however, there was an injury to the mouth or teeth that required some change in the filling from what it previously was, then the carrier would be liable for that medical expense.