GQ Corner
Q. I received a DWC-3 wage statement from the Employer. Of the 13 pre-injury weeks, there were 8 weeks where he earned wages, and 5 weeks where he earned $0 each week. The Employer explained that Claimant was out on unpaid medical leave during those weeks, although work was available. Do I include or exclude those 5 weeks from the AWW calculation?
A. The AP has said you have to consider whether he earned $0 for each of those weeks due to a cause beyond his control. For example, in AP 941292 the Claimant was off work for six of the thirteen weeks preceding his compensable injury because of a prior old-law compensable injury. The ALJ computed AWW by excluding these weeks from the AWW calculation, (i.e. by taking the sum of the earnings for the seven weeks in which the Claimant did work and dividing by seven), and the AP affirmed that. In AP 950383 the Claimant lost time from work during weeks one through nine of the 13-week period because of a layoff. The Claimant would have been guaranteed 40 hours a week if he had not been in layoff status. The ALJ determined AWW by averaging the pay received during weeks 10 through 13. The AP affirmed and stated that under Section 408.041(c) a fair, just and reasonable method of determining AWW should be used when the Claimant lost time from work due to a cause beyond his control. The AP expanded the definition of cause beyond Claimant’s control to include a circumstance where, as here, an employee is placed on an involuntary layoff and consequently loses a guaranteed minimum number of hours per week.
Conversely, in AP 001778 the claimant testified at the CCH that prior to the injury he called in each week for job assignments and that in the five weeks where he was paid no wages, the employer did not have an assignment for him. However, records from the employer indicated that in four of the five weeks at issue, the claimant either did not call the employer to indicate that he was available to work or he called in late in the day or the week such that an assignment could not be made. The AP held that where the irregularity of the claimant’s employment during the 13 week period prior to the injury resulted from his own inaction as opposed to the nature of the work in general, the ALJ correctly determined the claimant’s average weekly wage based upon the claimant’s actual earnings during the 13 week period of time divided by the 13 total weeks he was employed by the insured.
One of the more recent reported AP decisions in this area is AP 030306, filed on March 19, 2003. In that case, the evidence reflected that it was anticipated Claimant would work 40 hours per week for his employer, a temporary agency. However, the claimant had actually only worked sporadically throughout his tenure with the employer, and had not worked 40 hours per week in any of the 13 weeks preceding the injury. Claimant argued that his AWW should be $220.00, which reflected the wages he would have earned in one week had he worked 40 hours per week. The ALJ applied the fair, just and reasonable standard under Section 408.041(c) and determined that the claimant’s AWW was $2.05, which reflected the wages actually earned by the claimant in the 13 weeks preceding the injury, divided by 13. The AP affirmed.
Thus, in your case the question is going to be whether Claimant was on unpaid medical leave during the 5 weeks with $0 wages due to circumstances beyond his control. If so, you would add those 8 weeks together and divide by 8. If not, you would add those 8 weeks together and divide by 13.
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