On January 27, 2016 Governor Rauner delivered his State of the State Address. The address makes reference to both pension reform and implementing recommended changes in the local government reduction and unfunded mandate report.
On December 29, 2015 the First District Appellate Court issued its Rule 23 Order in Delorto v. Board of Trustees of the Worth Firefighters’ Pension Fund, et al. In 2009 the plaintiff, a firefighter, applied for a line of duty disability pension based on a back injury that occurred on duty in 2008 while lifting a patient onto a stretcher. The Pension Board denied the plaintiff’s application for a line of duty disability pension. The circuit court reversed the Pension Board’s decision. The appellate court affirmed the circuit court’s decision.
While lifting the patient, the plaintiff felt pain in his back. The plaintiff finished his shift and then sought treatment from his primary care physician, an orthopedic specialist, and a pain specialist. In 2009, a worker’s compensation physician found that the plaintiff was fit for duty. The plaintiff attempted to return to work. The fire chief told the plaintiff that he could not return to work until plaintiff’s personal physician released plaintiff. The plaintiff’s othopedic surgeon would not release the plaintiff to perform firefighting duties.
The plaintiff testified during his disability hearing that he was not sure whether he could or could not perform firefighting duties. For purposes of his disability application, the plaintiff underwent three independent medical examinations (“IME”). Dr. Spencer examined the plaintiff for “five minutes” and opined that the plaintiff was not disabled and that his injury did not result from the performance of an act of duty. Dr. Spencer testified during the disability hearing. Dr. Gleason recommended that the plaintiff undergo an FCE. Dr. Samo opined that the plaintiff was disabled. Dr. Samo testified that the act of duty did not cause the plaintiff’s back condition, but that the act of duty did cause the condition to become symptomatic. After the testimony, the Pension Board sent the plaintiff to an FCE. The FCE concluded the plaintiff could perform at the “medium to very heavy” physical demand level. The IME providers then reviewed the FCE results. Dr. Spencer opined that the plaintiff was not disabled. Dr. Gleason and Dr. Samo opined that the plaintiff was disabled. Dr. Samo opined that the plaintiff had not reached maximum medical improvement. The Pension Board voted 4-1 to deny the disability application based on a finding that the plaintiff was not disabled.
The appellate court noted that the Pension Board’s decision did not contain credibility findings or analyze the applicability of the facts to the Pension Code. The appellate court held that “without the Board’s reasoning” it could only presume that the Pension Board relied solely on Dr. Spencer’s report and testimony. The appellate court noted again that Dr. Spencer only spent 5 minutes with the plaintiff. The appellate court noted that Dr. Spencer testified that firefighting duties did not cause the plaintiff’s back condition, but that firefighting duties may have caused the plaintiff’s symptoms. Ultimately, the appellate court held that the Pension Board’s reliance on Dr. Spencer’s sole opinion was against the manifest weight of the evidence in light of the overwhelming evidence to the contrary.
On December 23, 2015 the Second District Appellate Court issued its Opinion in Swoboda v. The Board of Trustees of the Village of Sugar Grove Police Pension Fund, et al. The plaintiff, a police officer, applied for a line of duty disability pension after injuring his shoulder while performing a bench press during a police department fitness test. The Pension Board denied the plaintiff’s application and instead awarded a not on duty disability pension. The trial court and the appellate court affirmed the Pension Board’s decision.
The appellate court interpreted the “act of duty” provision in 40 ILCS 5/5-113 to set forth a two part test: First, the act must inherently involve special risk not ordinarily assumed by a citizen in the ordinary walks of life; and second, the act must be imposed by statute, ordinance, or police regulation. The appellate court found that the bench-press test did not involve a special risk not ordinarily assumed by a citizen in the ordinary walks of life.
The appellate court interpreted the phrase “ordinarily assumed by citizens in the ordinary walks of life.” “Citizens” means “ordinary citizens from across the social spectrum and from various occupations.” “If a particular risk is one that is ordinarily assumed by such “citizens” it is not a “special risk.” The appellate court noted that citizens in ordinary walks of life engage in weight lifting and “whether they do so occupationally or recreationally is of no moment.” “Whether a risk encountered in life is occupational or nonoccupational has little bearing on whether it approximates the types of dangers for which an officer should receive an increased benefit.” The appellate court noted that line of duty disabilities are generally awarded to officers “…engaged in activities involving the protection of public safety.” However, the appellate court did not limit line of duty disabilities solely to disabling injuries that occurred protecting public safety.
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The Governor’s task force on local government consolidation and unfunded mandates issues its final report on December 15, 2015. The report recommends consolidating Article 3 and Article 4 pension funds into a “single pension investment authority” or possibly one authority for police and one authority for fire. Pages 360-361 of the report outlines the task force’s recommendations.