201712.06
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Illinois Average Weekly Wage: You Don’t Owe What You Don’t Know

The Illinois Appellate Court recently affirmed a Commission Decision in favor of respondent on the issue of whether a claimant’s concurrent wages as a pastor should be included as part of his average weekly wage calculations, in Bagwell v. Illinois Workers’ Comp. Comm’n (Nestle USA, Inc. ), 2017 IL App (4th) 160407WC, 84 N.E.3d 1149, 1151.

On June 2, 2008, the claimant injured his low back at work while lifting a box of taffy off of the ground. He was diagnosed with an L4-L5 disc herniation that was confirmed by an MRI.  On September 2, 2008, the claimant underwent surgery for same. Thereafter, the claimant continued to complain of low back and leg pain, potentially related to his L5 nerve root.  The petitioner was awarded benefits but at issue in this case was what the appropriate average weekly wage for the claimant should be.  Specifically, the respondent disputed that his wages from being a pastor should be included in his average weekly wage.

The claimant served as the pastor of a Mt. Zion Missionary Baptist Church while he was working for the Respondent. He testified that he had been Mt. Zion’s pastor for 16 years.  He was serving as Mt. Zion’s pastor during the occurrence of the work accidents involved in this case, and he was still operating as a pastor at the time of trial.

The employer here was not disputing that they were not aware that the claimant actually operated as a pastor, however, they did not realize that he was actually paid for performing these services, and did not consider to be concurrent employment.  The key evidence on the issue actually came from the petitioner’s own testimony.

“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.”

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.”

Id. ¶ 11

The Commission, now affirmed by the Appellate Court, found this to be substantial enough to find that the claimant’s wages from being a pastor should not be included in his average weekly wage for the purposes of benefit rates on the case.  The claimant argued that the employer should have known that he was being paid for being a pastor, but the Appellate Court disagreed, finding that, “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.”  Id.  ¶ 29

The Appellate Court went on to explain that it was not sufficient that the respondent merely knew that the claimant was performing the services of a pastor, but that the word “employment” necessarily requires that a respondent be aware that there was payment or wages for a particular activity.

Prevailing on an average weekly wage dispute can be complex, but keep in mind that in order for concurrent employment to be included for an average weekly wage, the respondent has be aware of not only what a claimant is doing but also has to have knowledge that the claimant is actually being paid for any other work done outside of employment with the respondent.  Be sure to stay tuned to the I&F blog for regular updates on the changes and clarifications in the law affecting average weekly wage issues throughout the Midwest!

Thanks to attorney Michael Bantz for the summary of this case.  Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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