By Hochberg                                           H.B. No. 2613
         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 by Section 408.041.
1-13           (b)  For part-time employees not covered by Subsection (a),
1-14     the average weekly wage:
1-15                 (1)  for determining temporary income benefits is
1-16     computed as provided by Section 408.041; and
1-17                 (2)  for determining impairment income benefits,
1-18     supplemental income benefits, lifetime income benefits, and death
1-19     benefits is computed as follows:
1-20                       (A)  if the employee has worked for the employer
1-21     for at least the 13 weeks immediately preceding the date of the
1-22     injury, the average weekly wage is computed by dividing the sum of
 2-1     the wages paid in the 13 consecutive weeks immediately preceding
 2-2     the date of the injury by 13 and adjusting that amount to the
 2-3     weekly wage level the employee would have attained by working a
 2-4     full-time workweek at the same rate of pay; or
 2-5                       (B)  if the employee has worked for the employer
 2-6     for less than 13 weeks immediately preceding the date of the
 2-7     injury, the average weekly wage is equal to:
 2-8                             (i)  the weekly wage that the employer pays
 2-9     a similar employee for similar services based on a [in] full-time
2-10     workweek [employment]; or
2-11                             (ii)  if a similar employee does not exist,
2-12     the usual wage paid in that vicinity for the same or similar
2-13     services based on a [provided for compensation in] full-time
2-14     workweek [employment].
2-15           (c)  For employees with multiple employment, the average
2-16     weekly wage for determining temporary income benefits, impairment
2-17     income benefits, supplemental income benefits, lifetime income
2-18     benefits, and death benefits is computed as follows:
2-19                 (1)  The average weekly wage for an employee with
2-20     multiple employment is equal to the sum of the average weekly wages
2-21     computed in (2) and (3) of this subsection.
2-22                 (2)  For each of the employers for whom the employee
2-23     has worked for at least the 13 weeks immediately preceding the date
2-24     of injury, the average weekly wage is equal to the sum of the wages
2-25     paid by that employer to the employee in the 13 weeks immediately
2-26     preceding the injury by 13.
 3-1                 (3)  For each of the employers for whom the employee
 3-2     has worked for less than the 13 weeks immediately preceding the
 3-3     date of the injury, the average weekly wage is equal to:
 3-4                       (A)  the weekly wage that employer pays similar
 3-5     employees for similar services; or
 3-6                       (B)  if a similar employee does not exist, the
 3-7     usual weekly wage paid in that vicinity for the same or similar
 3-8     services.
 3-9                 (4)  The average weekly wage of an employee with
3-10     multiple employment who limits the employee's work to less than a
3-11     full-time workweek, but does not do so as a regular course of that
3-12     employee's conduct, is adjusted to the weekly wage level the
3-13     employee would have attained by working a full-time workweek at the
3-14     employee's average rate of pay.
3-15           (d)  For an employee with multiple employment, only the
3-16     employee's wages that are reportable for federal income tax
3-17     purposes may be considered.
3-18           (e)  If the commission determines that computing the average
3-19     weekly wage for an employee as provided by Subsection (c), as
3-20     applicable, is impractical or unreasonable, the commission shall
3-21     set the average weekly wage in a manner that more fairly reflects
3-22     the employee's average weekly wage and that is fair and just to
3-23     both parties or is in the manner agreed to by the parties.  The
3-24     commission by rule may define methods to determine a fair and just
3-25     average weekly wage consistent with this section.
3-26           (f)  An insurance carrier is entitled to apply for and to
 4-1     receive reimbursement at least annually from the subsequent injury
 4-2     fund for the amount of income benefits paid to a worker under this
 4-3     section that are based on nonsubscriber employment.  The commission
 4-4     may adopt rules that govern the documentation, application process,
 4-5     and other administrative requirements necessary to implement this
 4-6     subsection.
 4-7           (g)  In this section:
 4-8                 (1)  "Employee with multiple employment" means an
 4-9     employee who has more than one employer.
4-10                 (2)  "Full-time workweek" means a 40 hour workweek.
4-11                 (3)  "Part-time[, "part-time] employee" means an
4-12     employee who, at the time of the injury, was working less than a
4-13     [the full-time hours or] full-time workweek for the employer for
4-14     whom the employee was working when the injury occurred [of similar
4-15     employees in the same employment, whether for the same or a
4-16     different employer].
4-17                 (4)  "Wages earned from non-subscriber employment"
4-18     means wages earned by an employee form an employer who was not
4-19     covered by workers' compensation insurance as provided by
4-20     Subchapter C, Chapter 406, or Chapter 407 during the period
4-21     described in Subsection (c).
4-22           SECTION 2.  Section 403.006(b), Labor Code, is amended to
4-23     read as follows:
4-24           (b)  The subsequent injury fund is liable for:
4-25                 (1)  the payment of compensation as provided by Section
4-26     408.162;
 5-1                 (2)  reimbursement of insurance carrier claims of
 5-2     overpayment of benefits based on interlocutory orders of the
 5-3     commission as provided by this subtitle, consistent with the
 5-4     priorities established by the commission; and
 5-5                 (3)  reimbursement of insurance carrier claims as
 5-6     provided by Section 408.042 of this subtitle, consistent with the
 5-7     priorities established by the commission.
 5-8           SECTION 3.  Section 403.007, Labor Code, is amended by adding
 5-9     Subsections (e) and (f) to read as follows:
5-10           (e)  If the commission determines that the funding under
5-11     Subsection (a) is not adequate to meet the expected obligations of
5-12     the subsequent injury fund established under Section 403.006, the
5-13     fund shall be supplemented by the collection of a maintenance tax
5-14     paid by insurance carriers, other than a governmental entity, as
5-15     provided by Sections 403.002 and 403.003.  The rate of assessment
5-16     must be adequate to provide 120 percent of the projected unfunded
5-17     liabilities of the fund for the next biennium as certified by an
5-18     independent actuary or financial advisor.
5-19           (f)  The commission's actuary or financial advisor shall
5-20     report biannually to the Research and Oversight Council on Workers'
5-21     Compensation on the financial condition and projected assets and
5-22     liabilities of the subsequent injury fund.  The commission shall
5-23     make the reports available to members of the legislature and the
5-24     public.
5-25           SECTION 4.  (a)  This Act takes effect September 1, 2001.
5-26           (b)  The change in law made by this Act to Section 408.042,
 6-1     Labor Code, applies only to an injury that occurs on or after the
 6-2     effective date of this Act.  An injury that occurs before the
 6-3     effective date of this Act is governed by the law in effect on the
 6-4     date the injury occurred, and the former law is continued in effect
 6-5     for that purpose.