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.
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.
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.
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
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:
- 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.
- 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.
- Once these amounts are transferred, this time will count as creditable service for the firefighter pursuant to 40 ILCS 5/4-108(c)(8).
- 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.
- 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.
On August 21, 2017 the First District Appellate Court issued its Rule 23 Order in Aquino v. Board of Trustees of the Northlake Police Pension Fund. In Aquino, a vehicle side-swiped the plaintiff police officer during a traffic encounter. The plaintiff ultimately filed an application for a line of duty disability pension and claimed to be disabled due to complex regional pain syndrome. Two of the pension board’s IMEs concluded that the plaintiff was disabled. The third pension board IME concluded that the plaintiff was not disabled but that she was mentally unfit to be a police officer. The plaintiff testified that she was not mentally unfit to be a police officer. The city’s workers’ compensation IME concluded the plaintiff did not have complex regional pain syndrome. The pension board denied the plaintiff’s application based on a finding that she did not have complex regional pain syndrome and that she was not disabled. The trial court and the appellate court affirmed the pension board’s decision. The appellate court held that the record contained competent evidence to support the pension board’s decision and therefore the decision was not against the manifest weight of the evidence.
PGM attorney Jeff Goodloe represented the pension board in the trial court and the appellate court.
On August 24, 2017 Public Act 100-281 became law. The law amends Article 3 of the Pension Code. The law provides the following:
- On or after January 1, 2019 a police chief cannot elect to go into the IMRF unless he or she was already a participating member in the IMRF
- Each municipality with an Article 3 pension fund is required to create a defined contribution plan for its police officers
- A police officer with 10 or more years of creditable service who enters service as a police officer with a different municipality has the option of entering the defined contribution plan rather than the defined benefit plan
- A person who first becomes a member on or after January 1, 2019 who is receiving pension payments and re-enters active service as a police officer with any other Article 3 municipality can continue to receive his or her pension but is required to go into the defined contribution plan as opposed to the defined benefit plan.
There is already a substantial amount of debate regarding the meaning of #4 and the phrase “first becomes a member.”
On August 25, 2017 Public Act 100-0334 became law. Among other pension provisions, the law amends section 3-147 and 4-138 of the Pension Code. The law provides that a surviving spouse is not entitled to pension benefits if he or she is convicted of a felony related to, arising out of, or connected with the service of the police officer or firefighter from whom the benefit results. However, the law does not apply to any contract or vested right acquired by a survivor prior to the effective date of the statute.
On July 18, 2017 the Fourth District Appellate Court heard oral arguments in Marinelli v. Board of Trustees of the Springfield Police Pension Fund. The police officer plaintiff was disabled due to thoracic outlet syndrome that caused numbness and tingling in his hand. The Pension Board awarded a “not on duty” disability pension but denied the application for a “line of duty” disability pension. The trial court affirmed. The plaintiff argued that the evidence demonstrated that the police officer’s acts of writing reports in his squad car in some way caused or contributed to the development of thoracic outlet syndrome. Additionally, the plaintiff argued that writing reports in a squad car constituted an “act of duty” within the meaning of the pension code.
On June 13, 2016 the Fifth District Appellate Court heard oral arguments in Martin v. Board of Trustees of the Shiloh Police Pension Fund. The issue in the case is whether the pension board erred when it determined that the plaintiff’s disabling injury was not incurred in or did not result from the performance of an act of duty. The trial court reversed the pension board’s decision. The plaintiff was in a police vehicle and injured in a car accident after having lunch. The plaintiff was returning from a state’s attorney’s office to the police department. PGM will post the court’s decision once it is issued.