Barry v. RET. BD. OF FIREMEN'S ANNUITY

• Decision Date: 29 April 2005
• Docket Number: No. 1-02-3548, No. 1-02-2963, No. 1-02-2962, No. 1-02-3549.
• Citation: 293 Ill.Dec. 740,357 Ill. App.3d 749,828 N.E.2d 1238
• Parties: Kathleen BARRY, Iris Nutter, Patricia Jelinek, and Jamie O'Callaghan, Plaintiffs-Appellees, v. The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

828 N.E.2d 1238

357 Ill. App.3d 749

293 Ill.Dec. 740

Kathleen BARRY, Iris Nutter, Patricia Jelinek, and Jamie O'Callaghan, Plaintiffs-Appellees, v. The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.

Nos. 1-02-2962, 1-02-2963, 1-02-3548, 1-02-3549.

Appellate Court of Illinois, First District, Sixth Division.

April 29, 2005.

Burke Burns & Pinelli, Ltd., Chicago (Mary Patricia Burns, Vincent D. Pinelli and Bonnie T. Kennedy, of counsel), for Appellant.

Martin O. Holland, Evergreen Park, for Appellees.

Justice FROSSARD delivered the opinion of the court:

Plaintiffs Iris Nutter, Jamie O'Callaghan, Patricia Jelinek, and Kathleen Barry each filed separate complaints for administrative review in the circuit court against defendant, the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board). The circuit court consolidated these four cases. Plaintiffs challenge the Board's decisions granting them widow's non-duty-related annuity benefits pursuant to section 6-141.1 of the Illinois Pension Code (Code or Pension Code) (40 ILCS 5/6-141.1 (West 2000)) rather than the greater widow's duty-related annuity benefits pursuant to section 6-140 of the Code (40 ILCS 5/6-140 (West 2000)).

A section 6-141.1 widow's non-duty-related annuity ("non-duty death benefit" or "non-duty annuity") entitles a widow of a firefighter who was not retired and had at least one and a half years of creditable service at the time of his death to the greater of (1) "30% of the salary attached to the rank of first class firefighter in the classified career service at the time of the fireman's death" or (2) 50% of the retirement annuity for which her husband would have been eligible had he retired the day before his death. 40 ILCS 5/6-141.1 (West 2000). A section 6-140 widow's duty-related annuity ("duty death benefit" or "duty annuity") entitles a widow to a benefit equal to 75% of her husband's salary until the date on which her husband, had he lived, would have reached the age of compulsory retirement. 40 ILCS 5/6-140 (West 2000).

The circuit court reversed the Board and directed the Board to grant plaintiffs duty death benefits retroactive to the date of their applications. In addition, the court directed the Board to pay prejudgment and post-judgment interest. On appeal, the Board argues the following: (1) the circuit court lacked jurisdiction to consider the complaints for administrative review filed by Nutter, Jelinek, and Barry; (2) even if it had jurisdiction, reversal of the Board's denial of all of plaintiffs' requests for duty death benefits was improper because the Board's decisions were not clearly erroneous; and (3) the court's imposition of prejudgment and post-judgment interest on the Board was erroneous.

BACKGROUND

Iris Nutter

Iris Nutter is the widow of Harry Nutter (Mr. Nutter). Mr. Nutter began working as a paramedic for the Chicago fire department in July 1983 and in March 1994 suffered a myocardial infarction while at work. Based on that incident, the Board granted Mr. Nutter duty disability benefits beginning in March 1994. Mr. Nutter died on October 6, 1999; the death certificate states that the cause of Mr. Nutter's death was pulmonary edema due to pancreatic cancer and pneumonia. Following her husband's death, Nutter received a letter from the Board including "[a]n application for widow's and children's annuity." The application enclosed with the letter was entitled "Surviving Spouse's Affidavit-Application Under Oath." The application did not ask Nutter to identify the type of benefit for which she was applying, did not identify possible benefits to which she might be entitled, and did not refer to a specific statutory provision discussing such benefits. The Board's letter directed Nutter to mail the application for widow's annuity to its office with her husband's certified death certificate and stated that the application "[would] be presented to a regular monthly meeting of this Board."

Nutter filled out the application, attached her husband's death certificate, had the application notarized, and returned the application to the Board. The Board notified Nutter that it had granted her application in a November 29, 1999 letter, which stated in relevant part:

"At the regular meeting of this Board held on November 17, 1999, your application for widow's annuity was granted in the amount of $1,387.05 a month beginning October 7, 1999 * * *.

* * *

If you dispute the above decision, under the provisions of Illinois Compiled Statutes, 40 ILCS 5/6-222, you must file for an Administrative Review of the Board's decision within thirty-five (35) days of the date of this letter. If you should have any questions, please do not hesitate to contact this office."

On June 9, 2000, a little over six months after the Board notified Nutter of its decision, Nutter filed a complaint for administrative review in the circuit court alleging the Board erroneously granted her a non-duty death benefit pursuant to section 6-141.1 of the Code (40 ILCS 5/6-141.1 (West 2000)) rather than a duty death benefit pursuant to section 6-140 of the Code (40 ILCS 5/6-140 (West 2000)). The Board filed a motion to dismiss Nutter's complaint, contending it was not filed within the 35-day time limit specified in section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 2000)).

Judge Thomas Durkin granted the Board's motion to dismiss and entered an order dismissing Nutter's complaint. Nutter filed a motion to reconsider, contending that her complaint should not have been dismissed because the Board's letter failed to inform her that she was denied a section 6-140 benefit and thus violated her due process right to receive notice of an adverse decision. Judge Durkin granted Nutter's motion to reconsider and vacated his previous order dismissing her complaint. The court's written order remanded the matter to the Board "for hearing upon the application with proper notice." In support of its ruling, the court explained:

"There is nothing in the method of the notice or the purported findings of the administrative agency that would cause the hairs on one's neck to raise and say, uh-oh, someone has done something to me, I'd better run to my lawyer.

In fact, it's quite the contrary. The notices seem quite benign and quite beneficent that it appears that you're the recipient of some largess and that a favor is being done to you by the agency rather than that you're going to suffer some extreme financial detriment by virtue of failing to act or by virtue of failing to be present at the hearing to present your side of the case.

Looking at it from a cost benefit analysis, it just wouldn't — it's a question of taking their form, spending two minutes to type in some additional language, and this would cost nothing insofar as time, effort and the benefit to potential claimants so far outweighs the minuscule consequences that would be imposed upon the Retirement Board that in my opinion is not a close case.

* * *

My finding is that, in fact, Ms. Nutter is entitled to a hearing wherein she has been given sufficient notice to comply with the due process requirements of the Illinois Constitution."

On October 17, 2001, the Board conducted a hearing on Nutter's request for duty death benefits. As previously noted, in March 1994 Mr. Nutter suffered a myocardial infarction while at work. Although the parties did not call witnesses to testify, they did introduce numerous exhibits, including Mr. Nutter's death certificate, April 1996 and October 1997 findings made by Board physician Dr. George Motto, the minutes from a November 19, 1997, Board meeting, and a November 21, 1997, letter sent to Mr. Nutter by the Board. Dr. Motto's October 1997 findings and the minutes from the Board's November 1997 meeting indicate Mr. Nutter's disability was permanent. The Board's November 21, 1997, letter to Mr. Nutter states in relevant part:

"On Wednesday, October 15, 1997 the Board's physician reviewed your file and/or saw you in reexamination.

This is to inform you that at the regular meeting of this Board held on * * * November 19, 1997, the Board approved the physician's report finding you unfit for duty at this time, and you are to be continued on the rolls in your present status of disability. It has been determined by the Board that you are Permanently disabled, therefore you are not rescheduled for an examination at this time."

Following the October 17, 2001 hearing, the Board entered a written decision denying Nutter's request for duty death benefits and notified Nutter of that decision in a November 29, 2001, letter.

The written decision contained several "Findings of Fact," including the following:

"4. As a result of his heart condition, Harry J. Nutter was granted a duty disability benefit on April 26, 1994 by the Retirement Board.

5. Harry J. Nutter was subject to recall to active duty at any time upon a physician's certification of fitness.

6. George S. Motto, M.D., the physician consultant to the Board periodically re-examined Harry J. Nutter in 1996 and 1997 following the granting of duty disability benefits by the Board and found that he should not return to duty with the Chicago Fire Department because of his heart condition.

* * *

8. There was no indication on the medical examiner's report that Harry J. Nutter's heart condition contributed in any way to his death.

* * * 10. The pulmonary edema and pancreatic cancer directly caused the death of Harry J. Nutter and prevented him from ever returning to active duty."

The written decision also contained several conclusions, including the following:

"3. Harry J. Nutter was not a fireman killed in the performance of duty as prescribed in 40 ILCS § 5/6-140 because he died from pulmonary edema and pancreatic cancer which were not related to his performance of an act or acts of duty.

4. Moreover, the pulmonary edema and pancreatic cancer prevented

...