WILCZAK v. VILLAGE OF LOMBARD

On December 5, 2016 the Second District Appellate Court issued its Opinion in Wilczak v. Village of Lombard (the appellate court withdrew the rule 23 order it had previously entered and published its decision as an opinion). The plaintiff, a firefighter, applied for health insurance benefits pursuant to PSEBA and argued that he suffered a catastrophic injury while responding to what he reasonably believed to be an emergency.  The village denied the plaintiff’s application for PSEBA benefits.  The trial court and the appellate court affirmed the village’s decision.

The plaintiff was on duty and dispatched to a disabled citizen’s address.  The plaintiff had been dispatched to that location on 10 separate occasions.  The plaintiff proceeded to the location in an ambulance with lights and sirens activated.  The plaintiff found the citizen on the floor and wedged between the bed and a wall.  The plaintiff injured his shoulder lifting the disabled citizen from the floor to a bed.  The village dispatch classified the call as a non life threatening invalid assist.  The citizen was not sick or injured but only needed assistance being moved from one place to another.  The pension board granted the plaintiff a line-of-duty disability pension but the village denied the application for PSEBA benefits.  The trial court held that although the plaintiff was responding to a 911 call, there was not imminent danger.

The reviewing courts agree, and the parties did not dispute, that the plaintiff was catastrophically injured under section 10(a) of PSEBA because the pension board had awarded him a line of duty disability pension.

However, both courts agree that the plaintiff did not satisfy section 10(b) of PSEBA because he was not responding to what he reasonably believed to be an emergency. Citing Gaffney, the appellate court held that an “emergency” under section 10(b) is “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”  An emergency “suggests the legislature’s intent to cover life-threatening or dangerous situations that arise from a firefighter’s employment.”

The plaintiff’s belief that he was responding to an “emergency” was not reasonable.  The citizen was not sick or injured.  The citizen only needed help getting moved to bed.  The fire department rule requiring the firefighter to respond to each call as though it is an emergency, does not establish that there was an emergency under section 10(b) of PSEBA.  Therefore, the firefighter’s subjective belief is not dispositive for purposes of PSEBA.  Rather, the objective facts encountered at the scene are dispositive for purposes of PSEBA.  Citing Bremer, the appellate court held, “whether an emergency exists depends on the circumstances of the moment; emergencies can arise and abate as the circumstances change.”

MITCHELL v. VILLAGE OF BARRINGTON

On November 23, 2016 the First District Appellate Court issued its Opinion in Mitchell v. Village of Barrington.  The plaintiff was employed as a paramedic for the village.  The plaintiff submitted a request for PSEBA benefits and the village denied the request.  The plaintiff submitted a second, more formal request for PSEBA benefits, and the village against denied the request.  The plaintiff sued.  The village filed a motion for summary judgment arguing that the plaintiff’s claim was barred by laches and the five year statute of limitations.  The village also argued that the plaintiff did not prove that she was catastrophically injured and that she was a firefighter covered by PSEBA.  The trial court granted the village’s motion.  The trial court also rejected the plaintiff’s equal protection claim because the village had a rational basis to deny the plaintiff’s PSEBA application. The plaintiff appealed.

The plaintiff was originally hired as paramedic.  Sometime later, the village sent a letter to all paramedics indicating that they could elect to become full-time sworn firefighter/paramedics.  However, if a paramedic declined the offer, the paramedic would be considered a civilian paramedic under the village pay plan and would remain in the IMRF.  The plaintiff declined the village’s offer and remained a civilian paramedic.

The appellate court held that the plaintiff was not a full-time firefighter or a full-time emergency medical technician who is a sworn member of the fire department.  The fact that the plaintiff occasionally performed duties similar to full-time firefighters did not make her a sworn full-time firefighter for purposes of PSEBA.  Additionally,the appellate court held that the plaintiff’s equal protection claim also failed because as a threshold matter she could not prove that as a civilian paramedic she was similarly situated to sworn firefighters. Even if the plaintiff could prove that she was similarly situated, her equal protection claim would fail because the village and legislature had a rational basis for treating civilian paramedics different from sworn firefighters.

SYKES v. BOARD OF TRUSTEES OF THE GRANITE CITY FIREFIGHTERS’ PENSION FUND

On November 8, 2016 the Fifth District Appellate Court heard oral argument in Sykes v. Board of Trustees of the Granite City Firefighters’ Pension Fund.

The pension board granted the plaintiff a not in duty disability pension but denied the plaintiff’s application for a line of duty disability pension.  The trial court reversed the pension board’s decision and the pension board appealed.

The plaintiff was sleeping at the firehouse and injured his back while getting out of bed. The plaintiff was not responding to an emergency call.  The issue in the case is whether the plaintiff’s disabling injury was incurred in or resulted from the performance of an act of duty or the cumulative effects of acts of duty.

PUBLIC ACT 99-0402 – OPEN MEETINGS ACT

Public Act 99-0402 amends section 3.5 of the Open Meetings Act.  The act extends the statute of limitations in which to file a request for review with the public access counselor. A person can now file a request for review within 60 days after discovery of facts of an alleged violation of the act, rather than within 60 days after the alleged violation of the act. However, any request for review must be filed within 2 years after the alleged violation of the act.

SENATE BILLS 3454 and 3455

On November 29, 2016 State Senator Michael Hastings introduced Senate Bill 3454 and Senate Bill 3455.

Senate Bill 3454 would amend the intercept/enforcement provisions in section 3-125 and 4-118 of the Pension Code.  Senate Bill 3454 would permit a pension board to intercept payments of state funds based on the current schedule (beginning in FY 2016) if the fund’s assets in trust do not exceed 5 years of current liabilities of the pension fund.  However, under the amendment, if the fund’s assets in trust exceed 5 years of current liabilities, then the pension board could not intercept payments of state funds until FY 2021.  In FY 2021 the pension board could intercept one-tenth of payments of state funds.  In FY 2022 the pension board could intercept one-fifth of payments of state funds.  In FY 2023 the pension board could intercept three-tenths of payment of state funds.  In FY 2024 the pension board could intercept two-fifths of payments of state funds.  In FY 2025 and each fiscal year thereafter, the pension board could intercept one-half of payments of state funds.

Senate Bill 3455 would consolidate all Article 3 and Article 4 pension fund assets.  The bill essentially mirrors much of Senate Bill 3317 that was introduced by former representative Dan Duffy on February 19, 2016.  The main exception is that the assets would be transferred to the Illinois Municipal Retirement Fund (“IMRF”) for management rather than the State Board of Investment.  Under the bill, the IMRF shall not be held liable by any annuitant or beneficiary for nonpayment of benefits by the eligible pension fund.  The IMRF would be required to report to each pension board at least annually the financial information on the invested assets and earnings attributable to each pension fund.

The pension board would have to transfer assets once it receives a certified investment asset list from the DOI or within 18 months after the effective date of the statute, whichever occurs first.  The certified investment list would be created following an audit paid for by the pension board.  The pension board would then be allowed to maintain 3 months worth of reserves in the pension fund to pay beneficiaries and administrative costs.  In accordance with rules set forth by the IMRF, the pension board would then make written application to the IMRF if it needed money to maintain the 3 month reserve.  The DOI would be responsible for mediating any disputes between the IMRF and the pension board regarding the 3 month reserve.  Each quarter, the pension board would transfer available funds that exceed the 3 month reserve to the IMRF for investment.

HOPKINS v. BOARD OF TRUSTEES OF THE EAST ST. LOUIS FIREFIGHTERS’ PENSION FUND

On November 10, 2016 the Fifth District Appellate Court issued its Opinion in Hopkins v. Board of Trustees of the Firefighters’ Pension Fund of the City of East St. Louis.  The plaintiff, a firefighter, applied for a line of duty disability pension.  The plaintiff claimed that the cumulative effects of two acts of duty caused his disability.  The City intervened.  The pension board denied the plaintiff’s application for a line of duty disability pension.  The trial court reversed the pension board’s decision and instructed the pension board to grant the application for a line of duty disability pension.  The City appealed the trial court’s order. The appellate court affirmed the circuit court’s order reversing the pension board’s decision.

The plaintiff applied for a line of duty disability pension in 2013.  The plaintiff claimed that he suffered to work-related injuries.  The first occurred in 2009 and the second occurred in 2011.  The plaintiff ultimately underwent a two level cervical fusion in 2011 and returned to work.  The plaintiff testified that his symptoms returned after he returned to work and that he ultimately stopped working in 2012 following a knee replacement.

The pension board selected three doctors to examine the plaintiff.  All three doctors concluded the plaintiff was disabled due to the 2009 and 2011 incidents.  Additionally, the City selected Dr. Richard Katz, M.D. to examine the plaintiff in 2009 with respect to the plaintiff’s workers’ compensation claim following the 2009 injury.  Dr. Katz concluded the plaintiff has degenerative pre-existing knee issues.  Additionally, Dr. Katz opined that the plaintiff suffered a neck sprain after the 2009 injury that had resolved and that he could return to work at his secondary job at a steel mill.  Dr. Katz opined in 2009 however that the plaintiff should still not return to work as a firefighter because he had degenerative disease in his knee, a back fusion, and a triple bypass surgery.

In denying the plaintiff’s application for a line of duty disability pension, the pension board relied on Dr. Katz’s 2009 report and also noted that the plaintiff was fully vested and entitled to a full retirement pension.  The trial court and the appellate court held that the pension board erred in relying solely on Dr. Katz’s 2009 report.  The appellate court noted that a disability pension may be based on the duty-related aggravation of a pre-existing condition and that a plaintiff must only show that a duty related injury is a causative factor contributing to the claimant’s disability.

However, the appellate court noted that a pension board “should not rely on the opinions of a doctor ‘who failed to consider or to base his opinion on relevant, material evidence that was key under the circumstances of the case.”  The appellate court noted that Dr. Katz had not examined the plaintiff since 2009.  The appellate court also noted that Dr. Katz was “not in actuality an impartial physician, but a paid expert who was hired to testify on behalf of the City in its defense of plaintiff’s worker’s compensation claim.”  The appellate court noted that even the City did not rely on Dr. Katz’s opinion in 2009 because it allowed the plaintiff to return to work as a firefighter in 2009.  The appellate court found that this case was even more “egregious” than the Wade case because Dr. Katz did not examine the plaintiff after the 2011 injury.  Additionally, the appellate court found that the pension board erred in ignoring the opinions of the three independent physicians it selected while relying on the opinion of one physician in a workers’ compensation case who had not examined the plaintiff in over 5 years.