Ashmore v. Bd. of Trs. of the Bloomington Police Pension Fund

• Decision Date: 11 December 2018
• Docket Number: NO. 4-18-0196,4-18-0196
• Citation: 138 N.E.3d 93,434 Ill.Dec. 934,2018 IL App (4th) 180196
• Parties: Mark ASHMORE, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF the BLOOMINGTON POLICE PENSION FUND, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 180196

138 N.E.3d 93

434 Ill.Dec. 934

Mark ASHMORE, Plaintiff-Appellant,

v.The BOARD OF TRUSTEES OF the BLOOMINGTON POLICE PENSION FUND, Defendant-Appellee.

NO. 4-18-0196

Appellate Court of Illinois, Fourth District.

FILED December 11, 2018

Craig S.Richard J. Reimer and Mark S. McQueary, of Reimer & Dobrovolny PC, of Hinsdale, for appellee.

Richard J. Reimer and Mark S. McQueary, of Reimer & Dobrovolny PC, of Hinsdale, for appellee.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In December 2015, plaintiff, Mark Ashmore, filed an application for disability pension benefits. Plaintiff is a former Bloomington police officer, and his claim arose from a fall that occurred while he was pushing a vehicle out of the snow. Plaintiff argued that he was injured in an "act of duty" and was therefore entitled to a line-of-duty pension rather than a not-on-duty pension. In June 2017, the Board of Trustees of the Bloomington Police Pension Fund (Board) issued a written order in which it concluded that plaintiff was not disabled. Because the Board concluded that plaintiff was not disabled, it did not consider whether his claim arose from an "act of duty."

¶ 2 Plaintiff appeals, arguing (1) the Board's finding that he was not disabled was against the manifest weight of the evidence and (2) he was injured in the performance of an "act of duty." We conclude that the Board's finding that plaintiff was not disabled was against the manifest weight of the evidence and that plaintiff was injured while performing an "act of duty."

¶ 3 I. BACKGROUND

¶ 4 A. Plaintiff's Disability Application

¶ 5 In December 2015, plaintiff submitted an application for disability pension benefits. Plaintiff's claim arose from his pushing a vehicle out of the snow while he was working as a police officer. Plaintiff argued that he was injured in an "act of duty" and was therefore entitled to a line-of-duty pension rather than a not-on-duty pension.

¶ 6 B. Pension Board

¶ 7 In May 2016, October 2016, and January 2017, the Board conducted hearings on plaintiff's application for a disability pension.

¶ 8 1. Plaintiff's Testimony

¶ 9 The Bloomington Police Department hired plaintiff in March 1993. Upon entering the police force, plaintiff met the physical requirements of the police academy, which included bench-pressing 80% of his body weight. Plaintiff stated that he worked as a patrol officer throughout his career.

¶ 10 Plaintiff testified that on February 17, 2014, he responded to an abandoned vehicle that was stuck in the snow and blocking a driveway to an apartment complex. The car was partially obstructing traffic. Plaintiff called Paul Williams, a lieutenant with the Bloomington Police Department, to discuss whether he should call a tow company to move the vehicle. Plaintiff testified that Williams did not order plaintiff to tow the vehicle nor did Williams order plaintiff to push the vehicle. Plaintiff noted that assisting stranded motorists and pushing cars is often a routine part of his job.

¶ 11 After the phone call with Williams, the driver of the abandoned vehicle returned. Plaintiff did not discuss with Williams whether he should push the vehicle. Plaintiff, assisted by another officer, pushed the vehicle out of the snow. While pushing, plaintiff slipped on ice and fell—putting all his weight on his left arm as he fell.

¶ 12 Plaintiff sought medical attention following the accident. His arm was not broken, but he had a sprain and a partial tear of the distal bicep. As a result, from May 2014 through February 2016, plaintiff underwent multiple surgeries, cortisone injections, Botox injections, and physical therapy in an attempt to alleviate the pain in his arm and shoulder. Nevertheless, plaintiff testified that none of these procedures helped. He testified that he was losing the ability to extend his arm and the range of motion in his arm. He further stated that he had difficulty grasping or putting weight on his left arm and that he often had difficulty with dexterity. Plaintiff believed that he could not return as a patrol officer because he could not protect himself against a perpetrator or assist a fellow officer if necessary. Plaintiff testified that Dr. Jeffrey Greenberg placed him on a permanent work restriction, which meant that he was not supposed to lift over five pounds with his left arm or engage in repetitive grasping with his left hand.

¶ 13 Plaintiff testified that after his fall in February 2014, he had been unable to return to "full-duty" as a patrol officer. He stated that he had been working "light-duty" functions, using vacation and sick leave, or collecting worker's compensation benefits since the accident. Plaintiff was fired from the Bloomington Police Department in April 2016 because he was unable to return to "full-duty" as a patrol officer. He stated that there was no permanent light-duty position available for him at the Bloomington Police Department.

¶ 14 Plaintiff also testified that a ganglion block treatment was denied by the worker's compensation insurance company. Elizabeth McCain, a claims processor with that company, later testified that plaintiff was not denied this treatment.

¶ 15 2. Paul Williams's Testimony

¶ 16 Paul Williams, a Bloomington police lieutenant and plaintiff's supervisor, testified that plaintiff was injured while he was pushing a car that was stuck in the snow. Williams stated that pushing stranded cars was a part of plaintiff's job duties and that the police department did not have a policy which required stranded vehicles to be towed instead of pushed by police officers. Williams noted as follows:

"[O]n that particular day, it was snowing heavily and * * * the snow plows were not keeping up with the amount of snow that was on the road. The motorists were having a lot of trouble passing through the roads.

We had a lot of situations that were related to abandoned vehicles and cars that were stuck in the snow and minor car accidents and things like that going on this day, and we had a lot of calls that were pending. We needed to * * * keep things going kind of quick that morning.

* * *

I would say the police department generally doesn't like [officers to push stuck vehicles] because you can get yourself hurt or something, but there's no rule that says you can't [push a stuck car]. They don't like you to run into a burning building either, but we do sometimes. There's no rule against that says you can't."

¶ 17 Williams noted that he had a conversation with plaintiff regarding whether the abandoned vehicle should be towed. Williams further noted that he did not discuss whether plaintiff should push the vehicle after the driver of the vehicle returned.

¶ 18 3. Independent Medical Examiners

¶ 19 The Board had previously appointed three independent medical examiners—Dr. Joshua Alpert, Dr. David Anderson, and Dr. James Stiehl—to evaluate plaintiff. These doctors examined him during March and April of 2016 and submitted written reports to the Board.

¶ 20 Alpert certified plaintiff as disabled, noting that plaintiff "is still having pain. He is having stiffness. Clinical examination shows weakness and decreased motion of the elbow. Although there is a guarded possibility for improvement with additional Botox injections, the likely duration of this disability is likely permanent based on my experience treating patients with similar injuries." Alpert concluded that plaintiff's injury was the result of falling down while pushing the car stuck in the snow. Finally, Alpert concluded that "his disability from full and unrestricted police duties is likely to be permanent."

¶ 21 Anderson certified plaintiff as disabled. He noted that "I do not believe [plaintiff] can perform full and unrestricted police duties. He has significant decreased function and ongoing pain in the left upper extremity. * * * At this point, the duration of [this] disability is ongoing and likely permanent." Anderson believed that plaintiff's injuries were the result of falling down while pushing the car.

¶ 22 Stiehl certified plaintiff as not disabled. Stiehl noted that "[plaintiff] continues to have chronic pain in his left shoulder. * * * He has shooting pain into his left hand. He has a current restriction with no lifting over 5 pounds using his left upper extremity. * * * The basic issue is that he continues to have chronic pain in the scar tissue over his left forearm[.]" Stiehl concluded that these issues arose from falling down while pushing the car stuck in the snow.

¶ 23 Stiehl stated that he "reviewed the job description * * * for a patrol officer and * * * the vast majority of [plaintiff's] requirements are administrative in nature." In concluding, Stiehl noted that "[t]he function of his left shoulder and his left elbow are left with permanent deficits. However, as I carefully review the above noted duty requirements, I do not believe that [plaintiff] is disabled at this point[.]"

¶ 24 The job description for a patrol officer—which Stiehl replied upon—is excerpted below as follows:

"The job of [a] [p]atrol [o]fficer is general duty [p]olice work in the protection of life and property, and the enforcement of laws and ordinances. The work involves preventive patrol, preliminary investigation, traffic enforcement and regulation, and preservation of social order and public peace by means of patrolling in cars or on foot in a designated area where the officer is accountable.

The delivery of service at the [p]olice [o]fficer level applies to the protection of life and property, prevention and suppression of crime, apprehension of criminal offenders, regulation and control of traffic, recovery of lost or stolen property, and preservation and maintenance of social order and public peace."

¶ 25 The job description also requires that patrol officers have the ability "to react quickly, almost instantaneously and effectively, as problem situations occur" and to "overcome any and all potential hazards."

¶ 26 4. Dr....