McCUMBER v. BOARD OF TRUSTEES OF THE OSWEGO FPD FIREFIGHTERS PENSION FUND

On January 15, 2019 the Second District Appellate Court heard oral arguments in McCumber v. Board of Trustees of the Oswego Fire Protection District Firefighters’ Pension Fund.  The plaintiff, a firefighter, applied for a line of duty disability pension based on an anxiety disorder.  The pension board denied the plaintiff’s application for a line of duty disability pension.  The plaintiff did not have 7 years of creditable service so he did not apply for a not in duty disability pension in the alternative.

The trial court affirmed the pension board’s decision.  The plaintiff appealed.  The plaintiff claims the evidence in the record supports a finding that plaintiff’s participation in training exercises in a burn tower was a causative factor in triggering the plaintiff’s disabling anxiety disorder.  The pension board claims the evidence supports a finding that plaintiff’s disability resulted solely from a pre-existing condition and that an act of duty did not cause or contribute to the plaintiff’s disability.

PGM will post the Appellate Court’s decision once issued.

SIWINSKI v. FIREMAN’S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO

On January 8, 2019 the First District Appellate Court held oral arguments in Siwinski v. Fireman’s Annuity and Benefit Fund of the City of Chicago, et al.

The plaintiff was a firefighter paramedic.  The plaintiff applied for a line of duty disability pension based on PTSD.  The pension board denied the plaintiff’s application.  The trial court affirmed the pension board’s decision.  The plaintiff appealed.  The issue is whether the pension board’s decision is against the manifest weight of the evidence.

FRISBY v. BOLINGBROOK FIREFIGHTERS’ PENSION BOARD

On December 31, 2018 the Second District Appellate Court issued its Opinion in Frisby v. Bolingbrook Firefighters’ Pension Board.  The appellate court reversed the circuit court and affirmed the Pension Board’s decision to deny the plaintiff’s application for a “line of duty” disability pension and instead grant the plaintiff a “not in duty” disability pension.

The plaintiff, a firefighter, fell in the fire station’s parking lot 20 minutes before her shift started and injured her arm.  The plaintiff applied for a line of duty disability pension, and in the alternative, a not in duty disability pension.  The Pension Board granted the plaintiff’s application for a not in duty disability pension and denied the plaintiff’s application for a line of duty disability pension.  The Pension Board found that the plaintiff’s disabling injury was not incurred in and did not result from the performance of an “act of duty” or the cumulative effects of acts of duty.  The trial court reversed the Pension Board’s decision and held that the plaintiff was performing an act of duty at the time she fell in the parking lot before her shift started.

In reversing the trial court’s order, the appellate court held that the clearly erroneous standard of review applied to the pension board’s decision.  The appellate court held that the plaintiff was not performing an act imposed by rule or regulation of the fire department when she fell before her shift started.  The appellate court held that to accept the plaintiff’s interpretation of the phrase act of duty would extend the concepts of “act of duty” and “on duty” beyond their intended scope and would create an unworkable standard.

Attorney Jeff Goodloe represented the Pension Board in this matter.

JOHNSON v. MUNICIPAL EMPLOYEES’, OFFICERS’, & OFFICIALS’ ANNUITY AND BENEFIT FUND

On December 26, 2018 the First District Appellate Court issued its Opinion in Johnson v. Municipal Employees’, Officers’, & Officials’ Annuity and Benefit Fund of Chicago, et al.  This case involves a plaintiff’s attorney’s petition for fees after prevailing in Jones v. MEABF in which the Illinois Supreme Court found that certain legislation violated article 13 section 5 of the Illinois constitution (“the pension protection clause”).  The trial court denied the petition for attorney’s fees and the appellate court affirmed.

The plaintiff’s attorney petitioned for fees pursuant to the Illinois Civil Rights Act (“the Act”) and under a “common fund theory” as part of a proposed class action.  Section 5(a) of the Act prohibits discrimination based on a person’s race, color, national origin, or gender and section 5(b) of the Act authorizes a lawsuit against the offending unit of government.  Section 5(c) of the Act authorizes attorney’s fees to a prevailing party in a lawsuit brought (1) pursuant to subsection (b) of the Act or (2) to enforce a right arising under the Illinois Constitution.  The trial court and the appellate court denied the fee petition because the issues raised in the lawsuit did not relate to the Act.  Rather section 5(c) of the Act only authorizes attorney’s fees to a prevailing party on a discrimination claim against a governmental body involving one of the identified suspect classes.  The courts rejected an expansive reading of section 5(c) that would allow for an award of attorney’s fees based on any claim or right arising under the Illinois Constitution.

The appellate court also noted that the Pension Code’s provisions exempting pensions from garnishment or attachment did not contain a statutory exemption for attorney’s fees.  Therefore, the Pension Code barred garnishing plan participant’s benefits for the purpose of paying attorney’s fees under the Act or the common fund doctrine.

The appellate court also rejected the plaintiff’s attorney’s attempt to create a common fund of money from which fees could be paid.  The common fund doctrine “touches the power of equity in doing justice between a party and the beneficiaries of litigation.”  The appellate court held the litigation did not create a common fund of money and that the petition sought to take money directly from member pension checks in order to pay attorney’s fees.

Finally, the appellate court held that recovery of attorney’s fees under both the Act and the common fund doctrine would not be reasonable.

Click HERE to listen to the Oral Argument in this appeal.

ASHMORE v. BLOOMINGTON POLICE PENSION BOARD

On December 11, 2018 the Fourth District Appellate Court issued its Opinion in Ashmore v. Board of Trustees of the Bloomington Police Pension Fund.  The plaintiff, a police officer, applied for a line of duty disability pension, or in the alternative, a not on duty disability pension.  The Pension Board concluded the plaintiff was not disabled and denied both applications.  Because the Pension Board found the plaintiff was not disabled, it did not address the “act of duty” issue.  The trial court affirmed the Pension Board’s decision.  The plaintiff’s appealed.  The appellate court reversed and held the plaintiff was entitled to a line of duty disability pension.

The plaintiff injured his arm while on duty when he fell while pushing a vehicle that was stuck in the snow.  Pursuant to section 3-115 of the Pension Code, the Pension Board selected three doctors to examine the plaintiff.  Two doctors concluded the plaintiff was disabled and that the disability resulted from the fall on duty.  One doctor concluded the plaintiff was not disabled but that plaintiff still had chronic pain.  The dissenting doctor did note that the fall caused plaintiff’s injury.  The plaintiff’s treating physician concluded plaintiff was disabled.  In denying the plaintiff’s disability pension application, the pension board relied on the dissenting doctor and adverse credibility determinations.

The appellate court held the Pension Board erred in relying on the dissenting doctor’s report.  The appellate court noted the dissenting doctor acknowledged the plaintiff’s chronic pain and five pound weight lifting restriction in light of plaintiff’s job requirements.  The appellate court, citing the Supreme Court’s holding in Wade v. North Chicago Police Pension Board, held the dissenting doctor failed to consider relevant and material evidence that was key under the circumstances of the case.  The dissenting doctor mistakenly believed the plaintiff’s job was administrative in nature and the appellate court held that finding was “objectively unreasonable.”  Therefore, the Pension Board erred when it relied on the dissenting doctor’s opinion to the exclusion of the other opinions.

The appellate court also rejected the Pension Board’s adverse credibility determination and noted that “minor inconsistencies…that are on collateral issues and are essentially irrelevant to the underlying issue of whether plaintiff is disabled.”  The appellate court held that even if evidence supported the Pension Board’s credibility determinations, the Pension Board’s decision was still against the manifest weight of the evidence because the testimony the Pension Board found “…problematic had minimal or no materiality regarding the question of whether plaintiff was disabled.”

Finally, the appellate court cited its original jurisdiction under Article VI, section 6 of the Constitution and held that plaintiff was performing an “act of duty” at the time he fell and suffered his disabling injury.  The appellate court cited Mingus v. Peoria Police Pension Board in support of its conclusion.

Click HERE to listen to the appellate court oral arguments.

FRISBY v. BOLINGBROOK FIREFIGHTERS’ PENSION BOARD

On November 30, 2018 the Second District Appellate Court heard Oral Arguments in Frisby v. Board of Trustees of the Bolingbrook Firefighters’ Pension Fund.  The plaintiff, a firefighter, fell in the fire station’s parking lot 20 minutes before her shift started and injured her arm.  The plaintiff applied for a line of duty disability pension, and in the alternative, a not in duty disability pension.  The Pension Board granted the plaintiff’s application for a not in duty disability pension and denied the plaintiff’s application for a line of duty disability pension.  The Pension Board found that the plaintiff’s disabling injury was not incurred in and did not result from the performance of an “act of duty” or the cumulative effects of acts of duty.  The trial court reversed the Pension Board’s decision and held that the plaintiff was performing an act of duty at the time she fell in the parking lot before her shift started.  The Village subsequently filed a motion to intervene and the trial court granted the motion. The Pension Board and the Village appealed the trial court’s decision.

PGM Attorney Jeff Goodloe represents the Pension Board in this matter.

KROPP v. KILDEER POLICE PENSION BOARD

On December 19, 2018 the Second District Appellate Court issued its Rule 23 Order in the matter of Kropp v. Board of Trustees of the Kildeer Police Pension Fund.  The appellate court affirmed the Pension Board’s decision denying the plaintiff’s application for a line of duty, or in the alternative, a not on duty disability pension.

The plaintiff applied for a disability pension based on a cervical spine injury after he was struck in the face while arresting a combative subject.  The Pension Board selected three doctors to examine the plaintiff.  Two doctors concluded the plaintiff was not disabled.  One doctor concluded the plaintiff was disabled, but that it was not caused by an act of duty.  After the plaintiff applied for a disability pension, the Village terminated the plaintiff’s employment at about the same time the plaintiff started receiving the Pension Board’s doctors’ reports.  After he was terminated, the plaintiff sought to amend his disability application to add new claims based on psychiatric issues, orthopedic issues, and hearing loss.  The Pension Board denied the plaintiff’s motion to amend and ultimately denied the plaintiff’s application for a disability pension.  The trial court and the appellate court affirmed.

The appellate court held that the Pension Board did not err when it denied the plaintiff’s motion to amend.  Specifically the appellate court held that the relation back doctrine under the code of civil procedure did not apply and that the plaintiff could not amend his disability application because he was not a “police officer” under the Pension Code at the time he sought to amend his disability pension.  The appellate court also held that the Pension Board did not violate the plaintiff’s due process rights in the way it handled evidence during the hearing and that plaintiff waived his due process arguments by failing to raise them during the hearing.  Finally, the appellate court held the Pension Board’s decision that plaintiff was not disabled was not against the manifest weight of the evidence.

On December 11, 2018 the appellate court heard Oral Arguments on the appeal.

PGM attorney Jeff Goodloe represented the Pension Board in this matter.

Harvey Firefighters’ Pension Board v. City of Harvey

On August 2, 2017 the First District Appellate Court issued its Opinion in Board of Trustees of the City of Harvey Firefighters’ Pension Fund v. City of Harvey.  The case represents the first time that an Illinois court has found a pension fund to be on the verge of default so that the pension board, and a court, could take action to enforce the Pension Code’s funding statutes.  Additionally, the case represents the first time that an Illinois court has found that the Pension Code’s funding statutes provide for an annual statutory right of enforcement.  The following article provides a case summary, a link to the Opinion, and a link to the oral argument.  PGM attorney Jeff Goodloe represented the Pension Board in the circuit court and appellate court.  The City has filed a petition for leave to appeal with the Illinois Supreme Court.

Harvey Firefighters’ Pension Board v. City of Harvey

 

PUBLIC ACT 100-544

On November 9, 2017 the Illinois Senate voted to override the Governor’s veto of HB-688. Public Act 100-544 amends Articles 3, 4, and 6 of the Illinois Pension Code as follows:

  1. The Act creates section 3-110.12 and opens a 6 month window that allows an active member of an Article 4 firefighters’ pension fund to transfer up to 6 years of creditable service accumulated in an Article 3 police pension fund administered by the same unit of local government if the active member was not subject to disciplinary action when he or she terminated employment with the police department.  In order to take advantage of this transfer, the firefighter must make application within the 6 month window.
  2. Upon application, the Article 3 fund must transfer the following amounts to the Article 4 fund:  (1) the firefighters’ accumulated employee contributions, (2) an amount representing employer contributions that is equal to the amount calculated in number 1, and (3) any interest paid by the applicant in order to reinstate creditable service.  If the firefighter previously took a refund of his or her Article 3 contributions, the firefighter can reinstate creditable service with the Article 3 fund by repaying his or her refund plus interest at 6% per year compounded annually from the date of refund to the date of payment.
  3. Once these amounts are transferred, this time will count as creditable service for the firefighter pursuant to 40 ILCS 5/4-108(c)(8).
  4. Additionally, an active Chicago firefighter can now transfer up to 10 years of creditable service accumulated in an Article 4 pension fund.  The Chicago firefighter has a 6 month window to apply for the transfer.   The Article 4 fund is required to transfer the amounts as listed in number 2 above.
  5. Once these amounts are transferred, this time will count as creditable service for the Chicago firefighter pursuant 40 ILCS 5/6-227.  There may also be a true cost component that a Chicago firefighter must pay the Chicago Fireman’s Annuity and Benefit Fund.

ORRICO v. OAK LAWN FIREFIGHTERS’ PENSION BOARD

On June 28, 2017 the First District Appellate Court issued its Rule 23 Order in Orrico v. Board of Trustees of the Oak Lawn Firefighters’ Pension Fund.  The plaintiff was a fire lieutenant for the village of Oak Lawn.  A car struck the plaintiff and the plaintiff received a line of duty disability pension.  When the plaintiff was approximately 60 years old, he accepted a job as the assistant fire chief for a fire department in Texas.  The plaintiff signed certain employment documents affirming that he could perform certain physical tasks associated with fire suppression and fire rescue activities.  The plaintiff signed certain employment documents indicating that he would be able to receive a Texas firefighter certificate.  The plaintiff was assigned turnout gear and a SCBA.  Although it was not the plaintiff’s primary function to perform fire rescue or fire suppression activities as the assistant chief, the Texas fire chief testified that the plaintiff could have found himself inside a burning building and directing other firefighters.  Pursuant to section 4-112 of the pension code, the pension board held a hearing to determine whether the plaintiff had recovered from his disability.  Because the plaintiff was over 50 years old, the pension board did not have the authority to send the plaintiff for a medical examination.  See Hoffman v. Orland FPD Firefighters’ Pension Board.  The pension board, in a split vote, determined the plaintiff had recovered from his disability despite no medical evidence to support the conclusion.  The trial court reversed the pension board’s decision and the appellate court affirmed the trial court.

The appellate court ultimately determined that the pension board did not have “satisfactory proof” for purposes of section 4-112 that the plaintiff had “recovered from his disability.” The appellate court noted that the employment documents contained boilerplate language that did not accurately define the job duties for the plaintiff and that the record did not support the pension board’s conclusion that the plaintiff would be called upon, as the assistant fire chief, to perform fire rescue and fire suppression activities.  Interestingly, in dicta, the appellate court agreed with the pension board that section 4-112 did not require medical evidence to establish “satisfactory proof” of recovery from disability.  The appellate court also agreed with the pension board’s refusal to re-open proofs to allow the plaintiff to introduce his own hearsay medical examination report.

PGM attorney Jeff Goodloe represented the pension board before the trial court and the appellate court.