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You are here: Home . wc . news . advisories . ad97-05

Advisory 97-05

CLARIFICATION OF ADVISORY 96-16

Rule 128.2(a) requires carriers to "presume that the employer's last payment to the employee for personal services based on a full week's work (partial work week shall be prorated for a full week) accurately reflects the employee's wage until:

(1) the employer files the wage statement required by subsection (b) of this section; or

(2) the correct wage is determined by other evidence, if the employer does not file the wage statement."

Among the items required in a TWCC-3 by Rule 128.2(b) are:

(1) the employee's name, address, and social security number;

(2) the dates of employee's employment with the employer;

(3) the date of injury;

(4) the employee's wage, as defined in §128.1 of this title (relating to Average Weekly Wage: General Provisions), paid to the employee for the previous 13 weeks before the date of injury. If the employee was not employed for 13 continuous weeks before the date of injury, the employer shall identify a similar employee performing similar services, as those terms are defined in §128.3 of this title (relating to Average Weekly Wage Calculation For Full-Time Employees, and For Temporary Income Benefits For All Employees), and list the wages of that similar employee for the 13 weeks prior to the date of the injury;

(5) the employer's name, address, and federal tax identification number;

(6) a certification that the wage listed includes the fair market value of non-pecuniary remuneration not provided after the date of injury, and that the statement is complete, accurate, and complies with this rule; and

(7) an identification of the employee's status as full-time, part time or seasonal worker, including the number of hours worked during the previous 13 weeks, and whether the employee was also a student, apprentice or trainee.

Some insurance carriers have indicated that they do not know what to do when an employer files a wage statement (TWCC-3) that is incomplete or invalid (such as one lacking a completed fringe benefits section); specifically, should the carrier continue to use the last paycheck amount?

If the carrier receives a TWCC-3 that does not contain the above listed items as specified by the instructions on the form, the employer has not filed a wage statement as required by the rule. In this situation the carrier should:

  • consider the information on the incomplete TWCC-3 to be "other evidence" as referenced in Rule 128.2(a)(2);
  • use this evidence to determine the average weekly wage (AWW) and use that AWW to pay benefits (including any deficits owed) until a complete TWCC-3 is obtained;
  • continue to try to obtain a complete TWCC-3 from the employer; and
  • once a completed TWCC-3 is obtained, adjust the average weekly wage and pay any deficit payment owed per that filing .

This Advisory should be considered an addendum to Advisory 96-16. This Advisory does not relieve the employer of the requirement to provide accurate and complete information as required by Rule 128.2, nor does it relieve the carrier of the obligation of considering new information when received.

Signed this 5th day of September, 1997

Todd K. Brown, Executive Director

Distribution: TWCC Staff
Public Information List
Austin Carrier Representatives



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