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Advisory 93-09

Instructions for Adjustment to Average Weekly Wage for Seasonal Employees During the Temporary Income Benefit Period

In compliance with the Agreement, Cause No. 92-07844, 147 th District Court of Travis County, Texas, Frontier Insurance Company v. TWCC, the following instructions are being provided to all Commission Field Offices. It is also being provided to all designated carrier representatives for distribution to appropriate claims handling staff.

Insurance Carrier Responsibilities

When a bona fide dispute exists about the wages a seasonal employee could reasonably be expected to earn the period when temporary income benefits (TIBs) are paid, an insurance carrier must comply with the following procedure before any adjustments is made in a seasonal employee's average weekly wage (AWW) or temporary income benefits.

1) The insurance carrier shall notify the employee and the Commission in writing of its intention to request Commission approval to adjust AWW or TIBs under Article 8308-4.10(d) and Rule 128.5(c). The request shall be provided in both English and Spanish and contain the following information:

a) Statement that the carrier intends to request Commission approval to decrease or increase the weekly temporary income benefits payment because of a seasonal change in the employee's wages; and

b) Proposed effective date of the decrease or increase; and

c) Statement that the employee should submit to the carrier available wage information for the period specified (may include, but not limited to, Texas Employment Commission wage records, W-2 forms, bank statements, affidavits from employers, or payroll check stubs) within two weeks from the date of the notice; and

d) Statement that the employee's failure to submit information on previous years' wages may result in temporary income benefits being decreased on wage information from the Texas Employment Commission; and

e) Statement that the employee has the right to request a Benefit Review Conference to resolve any dispute about the seasonal adjustment; and

f) Name, address and telephone number of the handling adjuster to contact if the employee has information to submit or questions to ask; and

g) The Commission's toll-free number (1-800-252-7031) in the event the employee has further questions or needs assistance.

h) An interim form, TWCC-54, Notice to Employee: Intention to Request Commission Permission to Adjust Benefits is available for this purpose at all Field Offices.

2) If the employee fails to provide the requested wage information to the carrier within two (2) weeks from the date of the notice, the carrier may request the Commission to obtain, on behalf of the carrier, the wage history of the seasonal employee for the most recent five (5) quarters available from the Texas Employment Commission (TEC). All requests for seasonal employee wage information from TEC's records must be sent to Employee/Employer Services, Workers' Compensation Information Services Center, MS-602, Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491. The carrier shall pay a fee of $15.00 assessed by the Commission for this purpose. The request for TEC wage information shall be made on Form EES-1 (copy attached) and must be accompanied by the fee or no action will be taken. If Form EES-1 is received in a Field Office, it will be forwarded to Employee/Employer Services, Workers' Compensation Information Services Center, MS-602, Central Office of the Commission. When a seasonal change in AWW is not an issue, the Commission is not required to accept requests for TEC data from carriers.

3) Upon receipt of the TEC wage history, the insurance carrier may request from a disability determination officer assigned to handle official actions an approval to adjust the employee's AWW for the period specified. An interim form, TWCC-55, Request to Adjust Average Weekly Wage for Seasonal Employee is available for this purpose at all Field Offices. A copy of this notice must be provided to the employee at the time it is submitted to the Commission. (The approval portion of this form must state that the employee can request a Benefit Review Conference if the employee is not in agreement with the proposed reduction).

Commission Responsibilities

Upon receipt of Form EES-1 with the correct fee, the Commission's Employee/Employer Services will be responsible for contacting TEC for the requested wage information and in turn providing it in writing to the carrier's designated Austin representative.

An insurance carrier will file a Request to Adjust Average Weekly Wage for Seasonal Employee. The requirements of Rule 128.5 must be met. If the carrier does not submit evidence of wages to support its request for an adjustment, the request will be denied. When a complete TWCC-55 is received, the disability determination officer shall attempt to contact the employee to explain the carrier's request and to determine whether the employee is in agreement with the reduction of the AWW and TIBs. If at the end of two (2) weeks, the employee does not request a Benefit Review Conference, the disability determination officer shall approve the request for reduction based on the wage information available.

If the employee disputes the insurance carrier's request and asks for a Benefit Review Conference, the dispute shall be set for an expedited Benefit Review Conference. The benefit review officer shall allow the employee to furnish additional wage information at the conference. At the conclusion of the conference, the benefit review officer shall either approve the carrier's request to reduce or issue an interlocutory order for the carrier to continue paying at the unreduced rate, pending a final determination of the issue at a contested case hearing.

Signed this 20 th day of May, 1993.

Todd K. Brown
Executive Director

Attachment:

Form EES-1 (05/93) TWCC-54 TWCC-55

Distribution:

Austin Carrier Representatives
TWCC Staff
Public Information List



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