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.