Jensen v. Bd. of Trustees

• Decision Date: 18 November 2005
• Docket Number: No. 2-05-0301.,2-05-0301.
• Citation: 839 N.E.2d 670
• Parties: Raymond JENSEN, Plaintiff-Appellee, v. The EAST DUNDEE FIRE PROTECTION DISTRICT FIREFIGHTERS' PENSION FUND BOARD OF TRUSTEES and The East Dundee Fire Protection District Firefighter's Pension Fund, Defendants-Appellants.
• Court: Illinois Supreme Court

839 N.E.2d 670

Raymond JENSEN, Plaintiff-Appellee, v. The EAST DUNDEE FIRE PROTECTION DISTRICT FIREFIGHTERS' PENSION FUND BOARD OF TRUSTEES and The East Dundee Fire Protection District Firefighter's Pension Fund, Defendants-Appellants.

No. 2-05-0301.

Appellate Court of Illinois, Second District.

November 18, 2005.

John H. Kelly, Ericka J. Thomas, Peter M. King, Ottosen, Trevarthen, Britz, Kelly & Cooper, Ltd., Wheaton, for East Dundee

Fire Protection Dist. Firefighters', EDFP Pension Fund, Pension Fund Board of Trustees.

Andrew Y. Acker, Kubiesa, Spiroff, Gosselar, Acker & Kern, P.C., Elmhurst, for Raymond Jensen.

Justice BYRNE delivered the opinion of the court:

This administrative review action was brought by plaintiff, Raymond Jensen, from the denial of his application for a line-of-duty disability pension by defendants, the East Dundee Fire Protection District Firefighters' Pension Fund Board of Trustees and the East Dundee Fire Protection District Firefighter's Pension Fund (collectively the Board). The trial court reversed the Board's findings as against the manifest weight of the evidence in light of Alm v. Lincolnshire Police Pension Board, 352 Ill.App.3d 595, 287 Ill.Dec. 627, 816 N.E.2d 389 (2004). The Board contends on appeal that the trial court erred in reversing its decision. We hold that, in determining whether plaintiff was entitled to a line-of-duty pension under section 4-110 of the Illinois Pension Code (Pension Code) (40 ILCS 5/4-110 (West 2004)), the Board applied the wrong standard in considering whether plaintiff's injury was incurred in or resulted from the performance of an act of duty. In considering whether plaintiff's injuries were incurred in or resulted from acts of duty, both the Board and the trial court defined the term "act of duty" as it is applied to police officers under section 5-113 (40 ILCS 5/5-113 (West 2004)), which is not similar to the definition applied to firefighters under section 6-110 (40 ILCS 5/6-110 (West 2004)). The Board and the trial court should have used section 6-110 to define the term "act of duty." Thus, the Board used the wrong standard in weighing the evidence. Because the Board failed to apply the proper standard in weighing the evidence and never addressed the question of whether the activities in which plaintiff was injured constituted acts of duty, we believe that the proper course is to reverse the trial court and remand the cause with directions for a new hearing before the Board to determine whether plaintiff is entitled to a line-of-duty disability pension.

FACTS

The facts are undisputed. Plaintiff became a full-time firefighter/paramedic with the East Dundee Fire Protection District on October 1, 1987, and remained employed full-time until July 2003, when he stopped working due to an injury to his left knee. Plaintiff applied for a line-of-duty disability pension under section 4-110, alleging that his disability resulted from acts of duty he performed as a firefighter.

In November 1991, while stepping into an ambulance, plaintiff injured his left knee as he was attending to a medical emergency. As a result of that injury, plaintiff was required to undergo surgery for torn cartilage in his left knee and was unable to return to work until March 1992. On August 15, 1997, plaintiff again injured his left knee while crawling on the floor during a required fire department training drill. He was treated with cortisone therapy and returned to work approximately six weeks later. On May 20, 2002, as he was arriving at a fire call, plaintiff reinjured his left knee when he stepped out of the fire engine and missed a step. The treatment for the injury required a second surgery on the knee, in September 2002. Plaintiff was able to return to work in January 2003. On July 23, 2003, plaintiff reinjured his left knee while on duty when he stepped out of an ambulance after performing required cleaning and maintenance on the ambulance. As a result of that injury, plaintiff underwent treatment including a third surgery and physical therapy. Plaintiff has not returned to work since July 2003.

Plaintiff applied for a line-of-duty disability pension because of his injury to his left knee. The Board ordered that he be examined by three physicians. Each physician who examined plaintiff received from the president of the pension fund, Rainier Gallieano, a letter asking the physician for expertise and help in evaluating plaintiff's knee injury. The letter states that a firefighter is entitled to a line-of-duty disability pension under section 4-110 if "a firefighter, as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effect of acts of duty, is found, pursuant to Section 4-112, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension * * *. A firefighter shall be considered `on duty' while on any assignment approved by the chief of the fire department, even though away from the municipality he or she serves as a firefighter, if the assignment is related to the fire protection service of the municipality." 40 ILCS 5/4-110 (West 2004). Also enclosed was a copy of the firefighter/paramedic job description for the physician to review and a form containing the following two questions:

"1. Is the applicant disabled to a point that he is not able to perform his duties as a firefighter pursuant to the job description of the East Dundee Fire District?

2. Is it medically possible that the applicant's injury/illness is a result of or caused by his or her line of duty or service as a firefighter?"

Dr. John A. Elston examined plaintiff and submitted a certificate indicating that plaintiff was disabled and that the disability was caused by his line-of-duty or service as a firefighter. Dr. Lawrence B. Metrick's certificate indicated that plaintiff was disabled and that the disability was caused by plaintiff's line-of-duty or service as a firefighter. Dr. Martin P. Lanoff examined plaintiff and certified that plaintiff was disabled. However, next to the question whether plaintiff's disability was the result of or caused by his line-of-duty or service as a firefighter, Dr. Lanoff wrote, "possibly to a small extent." In his report, Dr. Lanoff indicated that plaintiff's injury to his knee in 1991, requiring surgery, could have contributed to osteoarthritic changes, although it was much more likely that the degenerative changes were simply due to aging and genetics as well as obesity and not to any work-related injuries.

The Board determined that plaintiff's injury did not arise from the performance of an "act of duty" as defined under section 4-110 of the Pension Code. The Board believed that, for purposes of section 4-110, an "act of duty" must "entail a special risk not ordinarily assumed by a citizen in the ordinary walk of life." The Board believed that the circumstances of plaintiff's injuries were similar to those in White v. City of Aurora, 323 Ill.App.3d 733, 257 Ill.Dec. 618, 753 N.E.2d 1244 (2001), wherein we found that a police officer who slipped and was injured while exiting his squad car to place a parking citation on a car windshield was not performing an act of duty, because it did not involve a special risk not ordinarily assumed by a citizen. The Board believed that, like the police officer in White, plaintiff's injuries were the result of stepping in and out of vehicles and crawling on the floor, and therefore, plaintiff was acting as an ordinary citizen in those situations. Moreover, because of the "depth" of Dr Lanoff's report, the Board believed that his finding of only a "small possibility" that plaintiff's injuries were duty-related was the more credible finding. Accordingly, the Board denied plaintiff a line-of-duty disability pension and awarded plaintiff a not-in-the-line-of-duty disability pension pursuant to section 4-111 of the Pension Code (40 ILCS 5/4-111 (West 2002)).

Plaintiff sought review of the Board's decision in the trial court, arguing that the factual findings were contrary to the manifest weight of the evidence and that the decision was arbitrary and capricious and legally erroneous. Plaintiff argued, inter alia, that the Board applied an incorrect meaning of the term "act of duty." Plaintiff also argued, alternatively, that his injuries were the result of the performance of acts involving special risks not ordinarily assumed by a citizen in the ordinary walk of life. Plaintiff asserted that the Board incorrectly relied on White, because this court's more recent case of Alm, 352 Ill.App.3d at 602, 287 Ill.Dec. 627, 816 N.E.2d 389, had criticized and rejected White for misapprehending the supreme court's decision in Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 114 Ill.2d 518, 104 Ill.Dec. 221, 502 N.E.2d 718 (1986).

Johnson expressly rejected the notion that the term "special risk" encompasses only inherently dangerous activities. Johnson, 114 Ill.2d at 521, 104 Ill.Dec. 221, 502 N.E.2d 718. We observed in Alm that Johnson teaches that, in determining whether an officer is entitled to line-of-duty benefits, "`[t]he crux is the capacity in which the officer is acting' rather than the precise mechanism of injury." Alm, 352 Ill.App.3d at 599, 287 Ill.Dec. 627, 816 N.E.2d 389, quoting Johnson, 114 Ill.2d at 522, 104 Ill.Dec. 221, 502 N.E.2d 718. We concluded that an officer performing duties involving special risks will be entitled to line-of-duty benefits even if the immediate cause of injury is an act involving only an ordinary risk. Alm, 352 Ill.App.3d at 599, 287 Ill.Dec. 627, 816 N.E.2d 389. We distinguished White from Alm, in which the injury was not the result of any specific, identifiable, physical trauma but may have developed over the course of time. In Alm, the plaintiff established that he incurred a disabling...