PJC General Negligence 2024

W ORKERS ’ C OMPENSATION —A VERAGE W EEKLY W AGE

PJC 22.3

PJC 22.3

Average Weekly Wage—Definition

“Average weekly wage” means the sum of the wages paid in the thirteen consecutive weeks immediately preceding an injury divided by thirteen. If an employee has worked for thirteen weeks or more prior to the date of injury, or if the wage at the time of injury has not been fixed or cannot be determined, the wages paid to the employee for thirteen weeks immediately preceding the injury are added together and divided by thirteen to produce the average weekly wage. If an employee has worked for less than thirteen weeks prior to the date of injury, the wages paid to that employee are not considered. Instead the wages used for the average weekly wage calculation are those paid by the employer to a similar employee who performs similar services, but who earned wages for at least thirteen weeks. If there is no similar employee at the employer’s business, the average weekly wage is based on the wages paid to a similar employee who performed similar services in the same vicinity, for at least thirteen weeks. When a similar employee is identified, the wages paid to that person for the thirteen weeks immediately preceding the injury are added together and divided by thirteen. The quotient is the average weekly wage. If it would be improper to use the wages of the employee or the wages of a similar employee due to the irregularity of the employment or because the employee has lost time from work, without remuneration, during the thirteen weeks immediately preceding the injury due to illness, weather, or other cause beyond the control of the employee, the employee’s average weekly wage may be determined by any method that is fair, just, and reasonable to all parties. COMMENT When to use. PJC 22.3 should be used with PJC 22.1 when a party appeals a decision of the Division of Workers’ Compensation of the Texas Department of Insur ance (DWC) involving an average weekly wage dispute. This definition of average weekly wage applies to cases in which the claimant earned wages during the thirteen weeks immediately preceding the compensable injury; or when there is evidence of a similar employee who earned wages during the thirteen weeks immediately preceding the compensable injury; or when there is evi dence to support a just and fair determination of the average weekly wage. Any of the specified items in the definition that are not raised by the evidence should be omitted. Source of definition. PJC 22.3 is based on Tex. Lab. Code § 408.041 and 28 Tex. Admin. Code § 128.3(d)–(g).

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