On September 24, 2015 the Second District Appellate Court issued its Rule 23 Order in Krott v. Board of Trustees of the Carol Stream Firefighters’ Pension Fund. The Pension Board denied the plaintiff’s application for either a line of duty or an occupational disease disability pension and awarded the plaintiff a not in duty disability pension. The trial court and the appellate court affirmed the Pension Board’s decision.
The plaintiff was a firefighter for approximately 17 years. She applied for a disability pension after she developed chest pains during a training exercise. She was diagnosed with coronary artery disease (“CAD”). The Pension Board selected three physicians to examine the plaintiff. All three physicians concluded the plaintiff was disabled, but only one physician concluded that the plaintiff’s disability resulted from her service as a firefighter.
The plaintiff had a family history of CAD, stopped smoking (after 10 years) in 1988, and had high cholesterol. Dr. Moisan could not exclude firefighting service as a contributing factor. Dr. McDonough and Dr. Nguyen attributed the plaintiff’s disabling CAD to her high cholesterol and other clinical risk factors, and not to firefighting duties. During his deposition, Dr. McDonough testified that long term exposure to particulates might accelerate the development of CAD but that it was not known whether endothelial dysfunction caused by diesel fume inhalation contributed to CAD. Dr. McDonough and Dr. Nguyen did testify that the fire service was probably a causal factor, though not the primary cause, in the development the plaintiff’s disabling CAD. The plaintiff argued that all the doctors concluded the plaintiff’s various duties and exposures as a firefighter were, in part, contributing causes in the development and progression of her CAD.
The appellate court noted that Dr. Moisan only opined that he could not “exclude” occupational factors as a “contributor” to the progression of the plaintiff’s CAD. The appellate court concluded that Dr. Nguyen’s testimony was essentially that if occupational stress was a causative factor, it was not the sole cause of the plaintiff’s disability. The appellate court noted that there was “scant” evidence to support Dr. McDonough’s testimony that the fire service was a causative factor contributing to the plaintiff’s disability. Rather, the appellate court concluded that Dr. McDonough’s testimony and report “as a whole” is more consistent with the Pension Board’s conclusion. The appellate court noted that it cannot reweigh the evidence or assign credibility to witnesses and it affirmed the Pension Board’s decision.
On October 8, 2015 the Fifth District Appellate Court issued its Rule 23 Order in Dale v. Board of Trustees of the Benton Firefighters’ Pension Fund. The plaintiff, a retired firefighter, filed a petition with the Pension Board seeking recalculation of his pension benefit and recoupment of underpayments. The Pension Board found that it lacked jurisdiction and denied the request. The trial court and the appellate court affirmed the Pension Board’s decision.
In 2003 the Pension Board awarded the plaintiff a disability pension. The Pension Board’s meeting minutes reflect that the Pension Board awarded the disability pension and the plaintiff would show up at the City Hall to pick up his monthly pension check. In 2010 the plaintiff concluded that Pension Board miscalculated his pension and that he was being underpaid. Following a hearing on jurisdiction, the Pension Board concluded that it lacked jurisdiction to adjudicate the matter because the 35-day administrative review law time period had expired. Additionally, the Pension Board argued that it did not have statutory authority to correct an underpayment. The appellate court concluded that the Pension Board’s decision to award the pension in 2003 constituted an “administrative decision” under the administrative review law. Additionally, the plaintiff received notice of the decision because he picked up his check at the City Hall. Therefore, his receipt of the check triggered the 35-day administrative review law time period.
Citing the Illinois Administrative Procedure Act (“APA”)–which is different from the Administrative Review Law–the plaintiff then claimed that the Pension Board’s decision was void because it was not in “writing.” Other courts have rejected that the APA applies to Pension Board decisions. However, the appellate court did not address that issue but rather concluded that the APA allows decisions to be in writing or stated in the record. In this case, the Pension Board’s decision was stated in the record. The appellate court also held that the failure to include language in a writing that the Pension Board’s decision was “final” and “subject to the administrative review law” was a technical fault and did not void the Pension Board’s decision. The court’s analysis is unusual because prior courts have consistently rejected arguments that the APA governs pension board decisions.
Finally, the appellate court rejected the plaintiff’s argument that the inclusion of recalculation language in Article 3, but not Article 4, of the Pension Code constitutes an equal protection violation. However, the court rejected the argument and noted that the Article 3 language only addressed overpayments. Since this case involved an underpayment, the plaintiff’s argument was specious.
On October 16, 2015 the Second District Appellate Court issued its Rule 23 Order in Almeida v. Board of Trustees of the Elgin Police Pension Fund, et al. The plaintiff originally applied for a line of duty, or in the alternative, a not on duty mental disability pension due to post traumatic stress disorder (“PTSD”). The Pension Board denied both applications and the trial court affirmed. In 2011, the appellate court reversed and ordered the Pension Board to grant the plaintiff a not on duty disability pension.
Pursuant to sections 3-115 and 3-116 of the Illinois Pension Code, the Pension Board had the plaintiff examined each year to determine whether he had recovered from his disability. One of the examining physicians concluded the plaintiff was exaggerating his mental symptoms and certified the plaintiff “not disabled.” The plaintiff objected to this opinion because this physician had concluded the applicant was not disabled in the original pension hearing. Two of the plaintiff’s treating physicians opined that the plaintiff remained disabled due to an anxiety disorder. The examining physician reviewed the plaintiff’s physicians’ letters and concluded that they did not alter the examining physician’s opinion. Based on the plaintiff’s objection, the Pension Board selected a second examining physician. The second physician opined the plaintiff suffered from generalized anxiety disorder and ADHD, but not major depression. The second physician concluded the plaintiff was not disabled and could perform full and unrestricted police duty.
The Pension Board voted to terminate the plaintiff’s disability pension based on a finding that the plaintiff had recovered from his disability. The trial court reversed the Pension Board’s decision. The appellate court reversed the trial court and affirmed the Pension Board’s decision. The appellate court held that the record contained sufficient evidence to support the Pension Board’s finding that the plaintiff had recovered from his disability. Although two physicians concluded the plaintiff remained disabled, two physicians concluded the plaintiff had recovered from his disability. The record demonstrated that the Pension Board’s physicians did not ignore relevant evidence. Finally, the appellate court noted that the Pension Board’s physicians did not find that the plaintiff was never disabled, but rather that the plaintiff had recovered from his disability. Therefore, the Pension Board’s decision was not against the manifest weight of the evidence.
Better Government Association – Next Up: Illinois Municipal Bankruptcy?
Chicago Tribune – Comptroller: Springfield Stalemate Puts Pension Payments On Hold
The Illinois State Comptroller stated that the budget impasse may cause the State to skip its $560 million November pension payment to the State’s retirement systems.
On October 1, 2015 the Illinois Department of Insurance issued its 2015 Biennial Report concerning the State’s pension funds. The DOI’s biennial report contains three recommendations (see page 20 of the report).
First, the DOI recommends the consolidation of Article 3 and Article 4 investment assets. Second, the DOI recommends that the 3-year audit cycle be changed to a “periodic examination cycle based on a risk-review framework. Third, the DOI recommends amendments and updates to the Administrative Code to reflect changes in the law and to clarify the DOI’s position. The DOI specifically referenced “…the definition of salary for pension purposes.”