On December 10, 2019 the Second District Appellate Court heard Oral Argument in the Village of Buffalo Grove v. Board of Trustees of the Buffalo Grove Firefighters’ Pension Fund. The pension board awarded a line of duty death benefit (100% of salary attached to rank) to the surviving spouse of a firefighter with 23 years of service who died as a result of colon cancer. The firefighter did not have a family history of colon cancer. The trial court affirmed the pension board’s decision and the Village appealed.
The Village argued the doctors relied on the occupational disease disability statute standards (and presumptions contained therein) as opposed to the line of duty death standard which would have required linking the death to the performance of specific acts of duty or the cumulative effects of acts of duty. The Village argued that evidence of responding to 127 fire calls, in and of itself, was insufficient to establish causation with respect to the cancer.
The matter originally started as an occupational disease disability pension claim while the firefighter was still alive. However, upon his death, the pension board shifted the claim to a line of duty death claim. One question is whether the pension board can rely on the doctors’ opinions from the occupational disease claim to satisfy the line of duty death claim. Another question is whether the firefighter’s or the survivor’s rights prevail when the firefighter died before the pension board awarded an occupational disease disability pension. The surviving spouse’s widow argued that section 4-114(j) (the line of duty death statute) trumps any survivorship rights under a disability statute assuming the death resulted from the performance of an act of duty or the cumulative effects of acts of duty.
On December 5, 2019 the Second District Appellate Court issued its Rule 23 Order in Olson v. Lombard Police Pension Board, et al. The plaintiff, a police officer, applied for a line of duty disability pension. The pension board granted the Village’s petition to intervene. Following a hearing, the pension board denied the plaintiff’s application for a line of duty disability pension. The trial court and the appellate court affirmed the pension board’s decision.
The plaintiff claimed he injured his back and leg during a foot chase. The plaintiff complained of leg pain, but not back pain, after he apprehended the suspect. Prior to the incident, the plaintiff had also suffered back pain on three separate occasions while off-duty. Contrary to plaintiff’s testimony that he received back treatment after the incident, the Form 45 and plaintiff’s initial doctor’s report do not reflect any back treatment.
Two workers’ compensation IME providers examined the plaintiff. One workers’ compensation IME provider opined the plaintiff required surgery and that the surgery was related to the on-duty injury. Another workers’ compensation IME provider opined the plaintiff’s surgery was unnecessary and that plaintiff’s back pain was due to his failed surgery as opposed to the on-duty injury.
The pension board selected three IME providers to examine the plaintiff. One doctor concluded the plaintiff’s subjective pain complaints were unreliable and the back surgery was unnecessary. One doctor concluded the plaintiff was disabled without rendering a causation opinion. One doctor concluded plaintiff was disabled but that it was not related to the on-duty incident.
The pension board concluded the plaintiff was disabled but that the disability was not caused by an act of duty. The Appellate Court held the pension board’s decision was not against the manifest weight of the evidence. First, the plaintiff failed to complain of low back pain immediately following the on-duty incident. Second, the plaintiff did not receive physical therapy for low back pain. Third, at least four doctors concluded the on-duty incident did not cause the plaintiff’s low back pain. Fourth, the pension board’s finding that plaintiff was not credible were not against the manifest weight of the evidence.
Click HERE to listen to the Oral Argument.
On December 4, 2019 the Third District Appellate Court heard Oral Argument in City of Peoria v. Firefighters’ Pension Fund of the City of Peoria, et al. The firefighter fell during an active fire, struck her head, and alleged she suffered a vestibular dysfunction. The pension board awarded the firefighter a line of duty disability pension. The trial court affirmed and the City appealed. The City argued the pension board erred in awarding the pension because (1) the firefighter refused to undergo reasonable treatment that would have remedied her condition and (2) the firefighter did not prove that she was disabled. The City argued the pension board awarded the firefighter a disability pension based on a condition the firefighter did not claim in her disability application. The pension board argued that 5 doctors concluded the firefighter was psychologically disabled based on a somatic disorder resulting from her response to a fire. However, the pension board conceded the firefighter did not specifically apply for a disability pension based on a somatic disorder. The pension board also argued the firefighter’s refusal to undergo treatment was not an intervening cause of the disability because the record contained conflicts as to whether the firefighter would be able to return to duty if she underwent the additional treatment. The firefighter’s attorney argued that applying for a disability based on a vestibular dysfunction is the equivalent to applying for a disability based on a somatic disorder–particularly where the firefighter believes she does not suffer from a somatic/psychological disorder.
PGM will post the Appellate Court’s written decision once it is issued.
On December 10, 2019 the Third District Appellate Court issued its Opinion in City of Peoria v. Firefighters’ Pension Fund of the City of Peoria, et al. A firefighter applied for a line of duty disability pension. The City of Peoria petitioned to intervene in the hearing. The pension board denied the City’s petition and granted the firefighter’s application for a line of duty disability pension. The City filed a complaint for administrative review challenging the denial of its petition to intervene and the decision to grant a line of duty disability pension. The trial court and the appellate court affirmed the pension board’s decisions.
The firefighter injured himself while participating in a “collapsed house” training exercise. All three doctors concluded the firefighter was disabled. Two doctors opined the firefighters’ disability was not caused by the training incident but rather was caused by pre-existing conditions unrelated to the firefighter’s job duties. One doctor opined the firefighter’s disability resulted, in some way, to the exacerbation of his pre-existing condition.
The City’s argued that it should be allowed to intervene due to (1) PSEBA, (2) its interest in contributing to the pension fund, and (3) to ensure the pension statutes are properly interpreted by the pension board. During the intervention hearing, the City’s attorney admitted (1) the City did not intend on calling any witnesses and (2) that the City had already provided all of its records in response to a pension board subpoena. The City also declined to make an offer proof. The Pension Board denied the petition, held the disability hearing, and awarded the firefighter a line of duty disability pension. The City subsequently filed a motion to supplement the record and renewed its petition to intervene. The pension board granted the motion to supplement but denied the renewed petition to intervene. The pension board requested supplemental opinions from its doctors as to whether the cumulative effects of acts of duty caused or contributed to the disabling condition. Two doctors said “no” and one doctor said “yes.” The pension board again voted to award the firefighter a line of duty disability pension and concluded in its written decision that the cumulative effects of acts of duty caused the disability.
The appellate court declined to address whether the City had standing to challenge the pension board’s decision since it was not allowed to intervene. The parties agreed that the firefighter would not be entitled to PSEBA benefits because he was injured during a training exercise and was not responding to what he reasonably believed to be an emergency. Therefore, the City’s broad interest of contributing to the pension fund–in and of itself–did not require intervention. The City’s interest in developing a complete record and cross-examining witness did not require intervention where the City could not identify witnesses it intended on calling or evidence it intended on offering. Therefore the pension board’s denial of the petition to intervene was not an abuse of discretion.
Finally, the appellate court held the decision to award a line of duty disability pension was not against the manifest weight of the evidence. The firefighters’ testimony and one doctor’s opinion supported the pension board’s finding.
Click HERE for Oral Argument.
On December 18, 2019 Governor Pritzker signed Public Act 101-0610 into law. Please click the link below for PGM’s summary of Public Act 101-0610:
PGM’s Public Act 101-0610 Summary