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                                     Appellate Court                           Date: 2017.10.16
                                                                               09:16:16 -05'00'




        Bagwell v. Illinois Workers’ Compensation Comm’n, 2017 IL App (4th) 160407WC



Appellate Court          DARRELL BAGWELL, Appellant, v. THE ILLINOIS WORKERS’
Caption                  COMPENSATION COMMISSION et al. (Nestle USA, Inc.,
                         Appellee).


District & No.           Fourth District, Workers’ Compensation Commission Division
                         Docket Nos. 4-16-0407WC, 4-16-0408WC cons.



Filed                    September 8, 2017



Decision Under           Appeal from the Circuit Court of McLean County, No. 15-MR-401;
Review                   the Hon. Paul G. Lawrence, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Steven R. Williams, of Williams & Swee, Ltd., of Bloomington, for
Appeal                   appellant.

                         Shawn R. Biery, of Keefe, Campbell, Biery & Associates, of Chicago,
                         for appellee.



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

¶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 Illinois Workers’ Compensation
     Commission (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.


                                                -2-
¶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 him with 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 lower 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 2:00 p.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 he was being paid for his job as a minister, the claimant
       responded:
                   “No, they didn’t know I was being paid, because my religious position had
               nothing to do with [the employer]. After I put in my eight hours at [the employer] that
               was all I owed to them. I didn’t owe them what else I was doing in my life. So, no,
               they didn’t know how much money I was making.”

           1
            The claimant filed the IDHR and EEOC complaints after the employer had denied his request for a
       religious accommodation. The claimant had asked the employer to accommodate his religious beliefs
       by allowing him to withdraw his bid for the Laffy Taffy cook position and return to a first-shift position
       so that he would be free to teach Bible study at his church on Wednesday evenings. The parties
       ultimately settled the claim.

                                                       -3-
       The claimant confirmed this testimony on cross-examination during the following colloquy
       with the employer’s counsel:
                    “Q. In response to a question from your attorney today, you indicated that [the
                employer] wouldn’t have known what you were paid through the ministry because it
                was none of their business essentially or it was personal?
                    A. Yes, sir, because that was a side job, that wasn’t [the employer’s] concern,
                what I made.
                    Q. Okay. I just wanted to make sure I heard that correctly.
                    A. Yes, yes, sir.”
¶ 12       Dennis Gustafson, a certified vocational rehabilitation counselor, testified on the
       claimant’s behalf by way of evidence deposition. Gustafson testified that the claimant had
       performed heavy, unskilled work for the employer and that, due to his current medical
       condition, the claimant was no longer able to perform such work. He noted that the claimant
       had some basic capabilities that would enable him to perform clerical work at an entry level.
       However, Gustafson opined that the claimant did not have any transferrable skills to
       sedentary work. Gustafson further opined that the claimant’s likelihood of securing clerical
       work within his work restrictions was “poor” because (1) the claimant would need to sit or
       stand for long periods in a clerical job, which was difficult for him, (2) the claimant had no
       prior clerical work experience, (3) an employer would be more likely to hire someone 25
       years old or younger who is starting out his or her career rather than a 57-year-old who has
       medical problems, and (4) there is a lot of competition for clerical jobs. Gustafson testified
       that, if the claimant were to secure employment, Gustafson estimated that the claimant’s
       compensation would be between $9 and $10 per hour.
¶ 13       Daniel Minnich, a certified vocational rehabilitation counselor, testified on the
       employer’s behalf by way of an evidence deposition. Minnich opined that the claimant was
       limited to sedentary work. As a result, Minnich concluded that the claimant was unable to
       perform many of the jobs he had previously held with the employer, and he was unable to
       perform the duties of a full-time clergy member (which required a higher level of physical
       exertion). Minnich estimated that entry-level positions for religious education would pay
       $9.49 per hour.
¶ 14       The parties each introduced a wage statement prepared by the employer, which indicated
       that, at the time of the June 2, 2008, work accident, the claimant’s average weekly wage from
       the employer was $636.94. The parties stipulated that, pursuant to the collective bargaining
       agreement executed by the employer and the claimant’s union, if the claimant were still
       working for the employer in the same position at the time of arbitration, his average weekly
       wage from the employer would have been $815.20.
¶ 15       The claimant also introduced a salary statement from Mt. Zion, which indicated that Mt.
       Zion had paid the claimant $600 per week from January 2010 through October 2013. Kim
       Mitchell, Mt. Zion’s financial secretary, authenticated this document and testified that Mt.
       Zion had been paying the claimant $600 per week from June 2007 through the time of
       arbitration. The claimant also testified that he was earning $600 per week from Mt. Zion and
       that he had been earning that same amount since the year before his work accident.
¶ 16       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


                                                  -4-
       causally related to those work accidents. The arbitrator awarded the claimant TTD benefits,
       TPD benefits, and medical expenses but declined the claimant’s claims for penalties and
       attorney fees.
¶ 17       The arbitrator also awarded the claimant wage differential benefits under section 8(d)(1)
       of the Act. The arbitrator acknowledged that, “[w]hen a claimant is currently employed, all
       earnings must be considered when calculating [the claimant’s] wages pursuant to section 10
       of the Act.” However, the arbitrator noted that wages the claimant earned from a second
       employer are included in this calculation only if such wages were “known by the first
       employer at the time of the accident.” The arbitrator found that, in this case, the employer
       was aware at the time of the work accidents that the claimant was a pastor. However, after
       reviewing the relevant evidence, the arbitrator found that “there [did] not appear to be
       adequate proof that the [employer] was aware [that the claimant] was being compensated for
       a second job” at the time of the work accidents. In support of this conclusion, the arbitrator
       noted that the documentary evidence submitted by the claimant (including the claimant’s
       written request for a religious accommodation and the discrimination charge he filed against
       the employer) did not indicate that the claimant was “seeking time off for a paying job.”
       Moreover, the arbitrator noted that the claimant himself had testified that the wages he
       earned as a pastor were “none of [the employer’s] business.” Further, the arbitrator observed
       that, although the employer had subpoenaed Mt. Zion’s tax and wage records, those records
       were never provided.2
¶ 18       For all these reasons, the arbitrator denied the claimant’s claim for concurrent wages, i.e.,
       she declined to include the wages the claimant had earned as a pastor in his average weekly
       wage for purposes of determining the claimant’s wage differential benefit. Based on the
       evidence presented by the parties (including the parties’ stipulation that the claimant would
       be earning $815.20 per week if he still worked for the employer and the fact that the claimant
       was currently earning $600 per week as a pastor), the arbitrator found that the claimant was
       entitled to a wage differential benefit “representing two-thirds of the $215.20 difference in
       his current position as a pastor and what he could be earning at [the employer], or $143.47
       per week, for the duration of his disability, commencing January 14, 2013.”
¶ 19       The claimant appealed the arbitrator’s decision to the Commission. The Commission
       vacated the arbitrator’s award for medical expenses but otherwise unanimously affirmed and
       adopted the arbitrator’s decision. The Commission found that the arbitrator had “properly
       excluded concurrent employment income from the Average Weekly Wage calculation” under
       section 10 of the Act “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.”
¶ 20       The claimant then sought judicial review of the Commission’s decision before the circuit
       court of McLean County, which affirmed the Commission’s decision.
¶ 21       This appeal followed.



           2
            The arbitrator noted that the claimant testified that he did not provide these records to the employer
       on the advice of another attorney who was not his workers’ compensation attorney.

                                                       -5-
¶ 22                                           ANALYSIS
¶ 23       On appeal, the claimant argues that the Commission’s determination of his average
       weekly wage was against the manifest weight of the evidence. Specifically, the claimant
       argues that the Commission erred by excluding his earnings as a pastor from the average
       weekly wage calculation for purposes of determining his wage differential benefit, in
       violation of section 10 of the Act.
¶ 24       The claimant has the burden of proving, by a preponderance of the evidence, the elements
       of his claim, including his average weekly wage. Sylvester v. Industrial Comm’n, 314 Ill.
       App. 3d 1100, 1103 (2000); Zanger v. Industrial Comm’n, 306 Ill. App. 3d 887, 890 (1999).
       The Commission’s determination of claimant’s average weekly wage is a question of fact
       that a reviewing court will not disturb unless it is contrary to the manifest weight of the
       evidence. Sylvester, 314 Ill. App. 3d at 1103. For a finding of fact to be contrary to the
       manifest weight of the evidence, an opposite conclusion must be clearly apparent. United
       Airlines, Inc. v. Illinois Workers’ Compensation Comm’n, 382 Ill. App. 3d 437, 440 (2008).
¶ 25       The basis for computing a claimant’s average weekly earnings is governed by section 10
       of the Act (820 ILCS 305/10 (West 2008)). Section 10 defines the employee’s average
       weekly wage as
               “the actual earnings of the employee in the employment in which he was working at
               the time of the injury during the period of 52 weeks ending with the last day of the
               employee’s last full pay period immediately preceding the date of injury, illness or
               disablement excluding overtime, and bonus divided by 52[.] *** When the employee
               is working concurrently with two or more employers and the respondent employer
               has knowledge of such employment prior to the injury, his wages from all such
               employers shall be considered as if earned from the employer liable for
               compensation.” (Emphasis added.) 820 ILCS 305/10 (West 2008).
¶ 26       The dispositive question in this case is whether the employer had knowledge of the
       claimant’s “employment” as a pastor prior to the work accidents at issue, thereby triggering
       section 10’s concurrent wage calculation requirement.
¶ 27       The Act does not define “employment.” According to Oxford’s online English
       Dictionary, “employment” means “[t]he state of having paid work,” or, “[a] person’s trade or
       profession.”       (Emphasis      added.)    English    Oxford       Living     Dictionaries,
       https://en.oxforddictionaries.com/ definition/employment (last visited Sept. 7, 2017). Other
       dictionaries define employment in a similar manner. See, e.g., Dictionary.com,
       http://www.dictionary.com/browse/employment (last visited Sept. 7, 2017) (defining
       “employment” as “an occupation by which a person earns a living; work; business”).
       Although the Act does not define “employment,” it implicitly adopts this understanding of
       employment as paid work in other, related definitions. For example, the Act defines an
       “employee” as “[e]very person in the service of another under any contract of hire.”
       (Emphasis added.) 820 ILCS 305/1(b)(2) (West 2008). To “hire” is to “engage the services of
       (a person or persons) for wages or other payment.” (Emphasis added.) Dictionary.com,
       www.dictionary.com/browse/hire (last visited Sept. 7, 2017); see also Merriam-Webster,
       https://www.merriam-webster.com/dictionary/hire (last visited Sept. 7, 2017) (defining
       “hire” as “payment for labor or personal services”). We therefore hold that the common,
       ordinary meaning of the term “employment” as used in section 10 of the Act encompasses
       the concept of payment for work or services rendered.

                                                 -6-
¶ 28       Accordingly, in this case, the wages the claimant earned as a pastor must be included as
       wages earned from the employer pursuant to section 10 only if the employer knew that the
       claimant received payment for his work as a pastor. 820 ILCS 305/10 (West 2008)). The
       Commission found that the clamant failed to prove that the employer had such knowledge.
       We cannot say that this finding was against the manifest weight of the evidence. Although
       the employer admitted that it knew the claimant served as a pastor during the relevant period,
       the claimant presented no evidence suggesting that the employer knew that he was
       compensated for that service. To the contrary, when asked during direct examination whether
       his supervisors and employers knew that he was being paid for his job as a minister, the
       claimant responded, “[n]o, they didn’t know I was being paid.” He confirmed this testimony
       on cross-examination, when he agreed that the employer would not have known what he was
       paid through the ministry because it was “none of their business” or it was “personal.” At a
       minimum, this testimony establishes that the claimant did not inform the employer that he
       was “employed” (i.e., paid) by Mt. Zion, that he had no reason to believe that the employer
       knew of such employment, and that, in fact, he believed that the employer had no such
       knowledge.
¶ 29       Despite having given this testimony before the arbitrator, the claimant argues on appeal
       that the employer “should have known” that he “worked for pay” as a pastor because (1) the
       employer knew that the claimant worked as a minister at a “fairly large” church where he
       performed services twice per week, (2) on several occasions, the employer asked the
       claimant to say prayers at the plant, (3) several of the employer’s managers had seen the
       claimant preach at the church or officiate at weddings and funerals, and (4) the claimant had
       previously filed a claim for religious discrimination against the employer. Contrary to the
       claimant’s argument, however, none of these facts establishes that the employer knew that
       the claimant was compensated for his services as a minister or pastor. When the claimant said
       prayers at the plant, he never asked for or received compensation for that service. Neither the
       claimant’s request for a religious accommodation nor his IDHR and EEOC complaints
       against the employer mentioned that the claimant received payment from Mt. Zion.
       Moreover, as noted above, the claimant admitted that he never told the employer that he was
       paid for performing religious services. It was therefore reasonable for the employer to
       assume that the claimant performed those services on a volunteer basis. The claimant offered
       no evidence to suggest otherwise. Accordingly, the Commission’s calculation of the
       claimant’s average weekly wage was not against the manifest weight of the evidence.
¶ 30       In the alternative, the claimant argues that it is irrelevant whether the employer knew that
       he was paid for his religious services because section 10 merely requires the employer to
       have knowledge of the claimant’s other “employment,” not the wages he earned from such
       employment. We do not find this argument persuasive. As noted above, the word
       “employment” means “paid work” or “work for hire.” Thus, the legislature clearly intended
       section 10’s concurrent wage requirements to apply only if the employer knew that the
       claimant had other paid work at the time of his work injury.
¶ 31       One final point bears mentioning. The parties dispute the standard of review that should
       govern our analysis of this issue. The claimant argues that we should review the
       Commission’s decision de novo because (1) the relevant facts are undisputed, (2) “there is no
       indication that the Commission drew any inferences or *** did anything other than apply the
       law to the undisputed facts”, and (3) the question presented in this case is purely one of

                                                  -7-
       statutory construction. See Flynn v. Industrial Comm’n, 211 Ill. 2d 546, 553 (2004); Greaney
       v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1016 (2005). The employer counters that the
       manifest weight of the evidence standard applies because the relevant facts are disputed. We
       agree with the employer. The central dispute in this appeal, i.e., whether the employer knew
       of the claimant’s paid employment as a pastor prior to the work accidents at issue, is a factual
       dispute. Moreover, although the remaining material facts are undisputed, the dispositive
       question is whether those facts support a reasonable inference that the employer had such
       knowledge. Because different reasonable inferences could be drawn from the undisputed
       facts, we review the Commission’s decision under the manifest weight of the evidence
       standard. Gilster Mary Lee Corp. v. Industrial Comm’n, 326 Ill. App. 3d 177, 182 (2001).
       However, even if we were to apply a de novo standard of review, the employer would still
       prevail.

¶ 32                                       CONCLUSION
¶ 33      For the foregoing reasons, we affirm the judgment of the circuit court of McLean County,
       which confirmed the Commission’s decision.

¶ 34      Affirmed.




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