X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Elite Trial Lawyers 2022 (ETL)

July 14, 2022
New York, NY

The National Law Journal Elite Trial Lawyers recognizes U.S.-based law firms performing exemplary work on behalf of plaintiffs.


Learn More

GlobeSt. ELITE Women of Influence 2022 (WOI)

July 25, 2022 - July 27, 2022
Park City, UT

GlobeSt. Women of Influence Conference celebrates the women who drive the commercial real estate industry forward.


Learn More

African Legal Awards (AFLA) 2022

September 02, 2022
Johannesburg

The African Legal Awards recognise exceptional achievement within Africa s legal community during a period of rapid change.


Learn More

Commercial Finance Associate (Flexible location)


Duane Morris LLP seeks two commercial finance associates to join its strong and growing 190+ lawyer Corporate Practice Group. The ideal cand...


Apply Now ›

Litigation Associate


A highly regarded Orlando litigation boutique is seeking a business litigation associate with a minimum of two years of experience. The cand...


Apply Now ›

Commercial Litigation Associate


Duane Morris LLP has an opening in its San Francisco office for a commercial litigation associate to join its team. The ideal candidate wil...


Apply Now ›

MAGGIANO, DIGIROLAMO & LIZZI, P.C.

07/04/2022
NJLJ Web

MAGGIANO, DIGIROLAMO & LIZZI, P.C., wiith a heavy heart, acknowledge the passing of Anthony J. Sciuto, JSC (Retired), and of counsel to the law firm.


View Announcement ›

RAYNES & LAWN

06/29/2022
TLI Web

Raynes & Lawn is proud to congratulate Harold I. Goodman on the prestigious honor of Lifetime


View Announcement ›

MCCORMICK & PRIORE, P.C.

06/23/2022
TLI Web

IN MEMORIUM: With a profound sense of sadness, McCormick & Priore announces that Harry A Short, Jr., a preeminent products liability defense lawyer in Philadelphia with a career that spanned over sixty-five (65) years, passed away on June 14, 2022.


View Announcement ›