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Bagwell v. Illinois Workers' Compensation Commission

Court of Appeals of Illinois, Fourth District, Workers' Compensation Commission Division

September 8, 2017

DARRELL BAGWELL, Appellant,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., Nestle USA, Inc., Appellees.

         Appeal from the Circuit Court of the Eleventh Judicial Circuit McLean County, Illinois Circuit No. 15-MR-401 Honorable Paul G. Lawrence, Judge, Presiding.

          HOLDRIDGE PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Hoffman, Hudson, Harris, and Moore concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE PRESIDING JUSTICE.

         ¶ 1 The claimant, Darrell Bagwell, filed applications for adjustment of claims under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for injuries he sustained on June 2, 2008, and March 23, 2009, while performing his job duties for Nestle USA, Inc. (employer). The claims were consolidated for arbitration. Following a hearing, the arbitrator found that the claimant had sustained work-related accidents on June 2, 2008, and March 23, 2009, and that the claimant's current conditions of ill-being were causally related to those work accidents. The arbitrator awarded the claimant temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and medical expenses, but declined the claimant's claims for penalties and attorney fees.

         ¶ 2 The arbitrator also awarded the claimant wage differential benefits under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2008)), but rejected the claimant's argument as to how such benefits should be calculated. While he was working for the employer, the claimant also served as the pastor of a church. At the time of the claimant's work accidents, the employer was aware that the claimant served as a pastor. Relying upon section 10 of the Act (820 ILCS 305/10 (West 2008)), the claimant argued that his salary as a pastor should be included in calculating his average weekly wage for purposes of determining his entitlement to wage differential benefits. The arbitrator rejected this argument. The arbitrator found that, although it was undisputed that the employer was aware that the claimant served as a pastor, the claimant had failed to prove that the employer knew he was being compensated for that position at the time of the accidents. Accordingly, for purposes of wage differential benefits, the arbitrator calculated the claimant's average weekly wage based solely upon what the claimant would have earned from his employment with the employer, without including his earnings as a pastor.

         ¶ 3 The claimant appealed the arbitrator's decision to the Commission. The Commission vacated the arbitrator's award of medical expenses but otherwise affirmed and adopted the arbitrator's decision. Regarding the arbitrator's average weekly wage calculation pursuant to section 10 of the Act, the Commission found that the arbitrator had "properly excluded concurrent employment income from the *** calculation "because while certain employees of the employer did know of [the claimant's] religious activities, there was no credible proof that the employer knew during the relevant pre-accident period that the claimant's activities actually constituted gainful employment, rather than volunteering or similar community activities."

         ¶ 4 The claimant then sought judicial review of the Commission's decision before the circuit court of McLean County, which affirmed the Commission's decision.

         ¶ 5 This appeal followed.

         ¶ 6 BACKGROUND

         ¶ 7 The claimant worked in the employer's candy factory for 27 years. On June 2, 2008, the claimant injured his back at work while lifting a box of taffy from the floor. An MRI revealed a disc herniation at L4-L5. On September 2, 2008, the claimant had surgery to repair the disc. Thereafter, the claimant continued to experience low back pain and back and leg pain associated with the L5 nerve root.

         ¶ 8 On March 23, 20009, shortly after the claimant returned to work, he reinjured his lower back while lifting and pushing heavy trays of candy down an assembly line. He was diagnosed with a recurrent herniation at L4-L5 and underwent another back surgery on April 15, 2009. His symptoms continued to worsen after the second surgery. In February of 2010, Dr. Keith Kattner, the claimant's neurosurgeon, diagnosed Battered Nerve Syndrome and recurrent disc herniation and opined that the claimant was limited to a sedentary lifestyle and was no longer employable in his prior factory position. Dr. Kattner also opined that the claimant's 2008 work accident was causally related to his current conditions of ill-being and his need for low back surgery.

         ¶ 9 While he was working for the employer, the claimant also served as the pastor of the Mt. Zion Missionary Baptist Church in Galesburg, Illinois (Mt. Zion). During the arbitration hearing, the claimant testified that he had been Mt. Zion's pastor for 16 years. He was serving as Mt. Zion's pastor at the time of the work accidents at issue, and he was still working in that capacity at the time of arbitration. Mt. Zion had 100 to 150 congregants. The claimant worked in the church on Sundays from 9:45 a.m. to 2:00p.m., and he conducted Bible study at the church on Wednesday evenings from 7:00 p.m. to 8:00 p.m. The church paid the claimant $600 per week as a housing allowance.

         ¶ 10 The claimant testified that the employer was aware that he was a pastor while he was working for the employer. He noted that Andy Darling, a plant manager for the employer, came to Mt. Zion to hear the claimant preach, and that other members of management knew he was a minister (including Jerry Holly, who was a pastor himself). Moreover, several other members of the employer's management had attended weddings or funerals that the claimant had officiated, including Chris Wattland, the employer's Human Resources Manager, and two of the employer's former company nurses. The claimant further testified that he officiated a wedding at the plant on one occasion in 2005 or 2006 and that, on several occasions, the employer had asked the claimant to say the Thanksgiving prayer or to pray for individuals who "were in a catastrophe." In addition, prior to his first work accident, the claimant had filed a religious discrimination charge against the employer with the Illinois Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission (EEOC), which put the employer on notice that the claimant worked as a minister at a church where he performed services twice per week.[1]

         ¶ 11 However, the claimant testified that the employer was not aware that Mt. Zion paid the claimant for his services as pastor. When asked by his attorney whether his supervisors and employers at [the employer] knew that ...


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