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