Texas Appeals Panel Decision 100497 – Average Weekly Wage/Concurrent Employment

Texas Appeals Panel Decision 100497 – Average Weekly Wage/Concurrent Employment

   By Stuart D. Colburn, Shareholder, Downs Stanford

The average weekly wage (AWW) for the claimed employer was $186.62.  The claimant’s alleged concurrent employment AWW was $406.15 for a total AWW of $592.77.  The claimant’s concurrent employment was working for several entities as an umpire from February to November.  The claimant presented little documentary evidence establishing his concurrent employment.

Claimant presented an IRS form 1099 indicating $875.00 for the year from one of his concurrent employers with no evidence if any, of what portion, was paid during the 13 weeks prior to the compensable injury.  He presented letters from “schedulers” of an estimate and average amount of what the claimant should have earned but no evidence of how many games he actually umpired or what amount he was paid.

The Appeals Panel stated it is the claimant’s burden of proof and responsibility to obtain the wage information from non-claimed employers consistent with Rule 122.5.  The Appeals Panel stated, “There is not a provision in Section 408.042 or 128.1(n) and 122.5 to accept estimates, guesses, and averages.”

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