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Texas Mutual Insurance Co. v. Cruz

The legislature left it to the Texas Workers' Compensation Commission to provide rules relating to what payments should be included in wages. Rule 126.1 gives examples of wages, and Rule 128.1 provides specific exclusions that are not to be included as wages. These rules are in harmony with the objectives of the Workers' Compensation Act's definition of wages as remuneration for personal services. Eastland Court of Appeals, No. 11-08-00118-CV, 12-18-2009

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OPINION

This case involves the calculation under Section 408.041 of the Texas Workers’ Compensation Act of a decedent’s average weekly wage for the thirteen weeks prior to his death.*fn1 TEX. LAB. CODE ANN. § 408.041(a) (Vernon 2006). The decedent, a welder, worked as an independent contractor and contracted with the employer to obtain workers’ compensation insurance. The contract provided that he would bill the company at the rate of “$19 per hour for equipment rental and supplies” and “$6.50 per hour for labor.”

Based on the contract and Rule 128.1 of the Workers’ Compensation Rules, both the hearing officer and the appeals panel determined that his average weekly wage was $354. The widow filed suit in district court challenging the appeals panel’s decision and argued that the average weekly wage should include the profit her husband made from the use of his equipment.*fn2 Her expert calculated the decedent’s hourly wage by estimating the decedent’s percentage of profit over three years and multiplying the average percentage of profit by $25.50 (the $19.00 plus $6.50). The jury adopted the expert’s calculation, and the trial court entered judgment that the average weekly wage was $581. We reverse and render judgment that the average weekly wage was $354. We reverse the trial court’s award of attorney’s fees and expenses and remand to the trial court for a determination of the appropriate attorney’s fees and expenses.

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