By Hochberg                                           H.B. No. 2612
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the payment and funding of workers' compensation
 1-3     benefits for certain claimants who work part-time or have multiple
 1-4     employment.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1. Section 408.042, Labor Code, is amended to read as
 1-7     follows:
 1-8           Sec. 408.042.  AVERAGE WEEKLY WAGE FOR PART-TIME EMPLOYEE OR
 1-9     EMPLOYEE WITH MULTIPLE EMPLOYMENT. (a)  The average weekly wage of
1-10     a part-time employee who limits the employee's work to less than
1-11     [full-time hours or] a full-time workweek as a regular course of
1-12     that employee's conduct is computed as provided in Section 408.041.
1-13           (b)  For part-time employees not covered by Subsection (a) or
1-14     employees with multiple employment who have established eligibility
1-15     for temporary income benefits for less than 13 weeks, the average
1-16     weekly wage:
1-17                 (1)  for determining temporary income benefits is
1-18     computed as provided by Section 408.041; and
1-19                 (2)  for determining impairment income benefits,
1-20     supplemental income benefits, lifetime income benefits, and death
1-21     benefits is computed as follows:
1-22                       (A)  if the employee has worked for the employer
 2-1     for at least the 13 weeks immediately preceding the date of the
 2-2     injury, the average weekly wage is computed by dividing the sum of
 2-3     the wages paid in the 13 consecutive weeks immediately preceding
 2-4     the date of the injury by 13 and adjusting that amount to the
 2-5     weekly wage level the employee would have attained by working a
 2-6     full-time workweek at the same rate of pay; or
 2-7                       (B)  if the employee has worked for the employer
 2-8     for less than 13 weeks immediately preceding the date of the
 2-9     injury, the average weekly wage is equal to:
2-10                             (i)  the weekly wage that the employer pays
2-11     a similar employee for similar services based on a [in] full-time
2-12     workweek [employment]; or
2-13                             (ii)  if a similar employee does not exist,
2-14     the usual wage paid in that vicinity for the same or similar
2-15     services based on a [provided for compensation in] full-time
2-16     workweek [employment].
2-17           (c)  For employees with multiple employment who have
2-18     established eligibility for temporary income benefits for 13 weeks
2-19     or more, the average weekly wage for determining temporary income
2-20     benefits for the 13th and subsequent weeks, impairment income
2-21     benefits, supplemental income benefits, lifetime income benefits,
2-22     and death benefits is computed as follows:
2-23                 (1)  The average weekly wage for an employee with
2-24     multiple employment is equal to the sum of the average weekly wages
2-25     computed in (2) and (3) of this subsection.
2-26                 (2)  For each of the employers for whom the employee
 3-1     has worked for at least the 13 weeks immediately preceding the date
 3-2     of injury, the average weekly wage is equal to the sum of the wages
 3-3     paid by that employer to the employee in the 13 weeks immediately
 3-4     preceding the injury by 13.
 3-5                 (3)  For each of the employers for whom the employee
 3-6     has worked for less than the 13 weeks immediately preceding the
 3-7     date of the injury, the average weekly wage is equal to:
 3-8                       (A)  the weekly wage that employer pays similar
 3-9     employees for similar services; or
3-10                       (B)  if a similar employee does not exist, the
3-11     usual weekly wage paid in that vicinity for the same or similar
3-12     services.
3-13                 (4)  The average weekly wage of an employee with
3-14     multiple employment who limits the employee's work to less than a
3-15     full-time workweek, but does not do so as a regular course of that
3-16     employee's conduct, is adjusted to the weekly wage level the
3-17     employee would have attained by working a full-time workweek at the
3-18     employee's average rate of pay.
3-19           (d)  For an employee with multiple employment, only the
3-20     employee's wages that are reportable for federal income tax
3-21     purposes may be considered.
3-22           (e)  If the commission determines that computing the average
3-23     weekly wage for an employee as provided by Subsection (b) or (c),
3-24     as applicable, is impractical or unreasonable, the commission shall
3-25     set the average weekly wage in a manner that more fairly reflects
3-26     the employee's average weekly wage and that is fair and just to
 4-1     both parties or is in the manner agreed to by the parties.  The
 4-2     commission by rule may define methods to determine a fair and just
 4-3     average weekly wage consistent with this section.
 4-4           (f)  An insurance carrier is entitled to apply for and to
 4-5     receive reimbursement at least annually from the subsequent injury
 4-6     fund for the amount of income benefits paid to a worker under this
 4-7     section that are based on nonsubscriber employment.  The commission
 4-8     may adopt rules that govern the documentation, application process,
 4-9     and other administrative requirements necessary to implement this
4-10     subsection.
4-11           (g)  In this section:
4-12                 (1)  "Employee with multiple employment" means an
4-13     employee who has more than one employer.
4-14                 (2)  "Full-time workweek" means a 40 hour workweek.
4-15                 (3)  "Part-time [, "part-time] employee" means an
4-16     employee who, at the time of the injury, was working less than a
4-17     [the full-time hours or] full-time workweek for the employer for
4-18     whom the employee was working when the injury occurred [of similar
4-19     employees in the same employment, whether for the same or a
4-20     different employer].
4-21                 (4)  "Wages earned from non-subscriber employment"
4-22     means wages earned by an employee from an employer who was not
4-23     covered by workers' compensation insurance as provided by
4-24     Subchapter C, Chapter 406, or Chapter 407 during the period
4-25     described in Subsections (b) or (c).
4-26           SECTION 2.  Section 403.006(b), Labor Code, is amended to
 5-1     read as follows:
 5-2           (b)  The subsequent injury fund is liable for:
 5-3                 (1)  the payment of compensation as provided by Section
 5-4     408.162;
 5-5                 (2)  reimbursement of insurance carrier claims of
 5-6     overpayment of benefits based on interlocutory orders of the
 5-7     commission as provided by this subtitle, consistent with the
 5-8     priorities established by the commission; and
 5-9                 (3)  reimbursement of insurance carrier claims as
5-10     provided by Section 408.042 of this subtitle, consistent with the
5-11     priorities established by the commission.
5-12           SECTION 3.  Section 403.007, Labor Code, is amended by adding
5-13     Subsection (f) to read as follows:
5-14           (f)  The commission's actuary or financial advisor shall
5-15     report biannually to the Research and Oversight Council on Workers'
5-16     Compensation on the financial condition and projected assets and
5-17     liabilities of the subsequent injury fund.  The commission shall
5-18     make the reports available to members of the legislature and the
5-19     public.
5-20           SECTION 4.  (a)  This Act takes effect September 1, 2001.
5-21           (b)  The change in law made by this Act to Section 408.042,
5-22     Labor Code, applies only to an injury that occurs on or after the
5-23     effective date of this Act.  An injury that occurs before the
5-24     effective date of this Act is governed by the law in effect on the
5-25     date the injury occurred, and the former law is continued in effect
5-26     for that purpose.