Richter v. Vill. of Oak Brook

• Citation: 354 Ill.Dec. 768,958 N.E.2d 700,2011 IL App (2d) 100114
• Decision Date: 23 September 2011
• Docket Number: No. 2–10–0114.,2–10–0114.
• Parties: Frank H. RICHTER, Plaintiff–Appellant, v. VILLAGE OF OAK BROOK, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 100114

354 Ill.Dec. 768

958 N.E.2d 700

Frank H. RICHTER, Plaintiff–Appellant,

v.VILLAGE OF OAK BROOK, Defendant–Appellee.

No. 2–10–0114.

Appellate Court of Illinois, Second District.

Sept. 23, 2011.

Anthony G. Argeros, Anthony G. Argeros, LLC, Chicago, for Frank Richter.

Patricia L. Mehler, Seyfarth Shaw LLP, Chicago, for Village of Oak Brook.

OPINION

Justice SCHOSTOK delivered the judgment of the court, with opinion.

[354 Ill.Dec. 771] ¶ 1 The plaintiff, Frank Richter, was a firefighter employed by the fire department of the defendant, the Village of Oak Brook. He sustained certain injuries and developed certain conditions related to his job, and filed several workers' compensation claims relating to those injuries and conditions. He and the defendant settled his workers' compensation claims, and the pension board awarded him a line-of-duty disability pension. The plaintiff then filed suit against the defendant to have his health insurance premiums paid under the Public Safety Employee Benefits Act (820 ILCS 320/10 (West 2002)), and for certain other benefits under the Public Employee Disability Act (5 ILCS 345/1(b) (West 2002)). The trial court entered judgment in favor of the defendant on those claims, and the plaintiff appealed. We reverse and remand.

¶ 2 BACKGROUND

¶ 3 The plaintiff began working for the defendant as a firefighter in 1985. In 1996, he began experiencing sinus problems that did not resolve within the usual time. In January 1999, he was seen at the Occupational Health Clinic of the University of Illinois at Chicago and began a series of tests relating to his sinus problems. In April 1999, air quality tests were performed at the Oak Brook fire stations that showed high diesel exhaust levels. The plaintiff experienced a reduction in his nasal symptoms when he was not at work, and the installation of a diesel exhaust air handling system at the fire station where he usually worked also reduced his symptoms when he was on the apparatus floor although not when he was in the living quarters. The symptoms included rhinitis, a thick flow of mucus and phlegm, and difficulty sleeping due to the need to clear his throat frequently. The flare-up of these symptoms when he was at work led the plaintiff to take time off from work on his doctor's orders, and he was ultimately diagnosed with diesel-induced rhinitis. The physical manifestations observed by the plaintiff's eye, nose, and throat doctor, Dr. Gregory Bussell, included redness and swelling of the larynx and swelling of the vocal cords. On January 11, 2002, the plaintiff reported to work but experienced a flare-up of his rhinitis and related symptoms and left work. When Dr. Bussell saw him on that day, he observed severe nasal erythema and “cobblestoning” that had not been present before. Dr. Bussell believed that the plaintiff's nasal condition had become disabling and advised the plaintiff not to return to work in any environment where he would encounter airborne irritants that exacerbated his symptoms. January 11, 2002, was the plaintiff's last day of work with the Oak Brook fire department.

[354 Ill.Dec. 772] ¶ 4 During the same time frame, the plaintiff also reported a series of injuries to his shoulders. Beginning in 1999 he reported problems with his neck and middle and lower back, but none with his shoulders. On January 4, 2000, the plaintiff was participating in a response to a fire in Elmhurst when he felt pain in both shoulders as he struggled to control a highly pressurized 2 1/2-inch water hose. Later while fighting the same fire he felt a sharp, dagger-like pain in his shoulders as he used a “pike pole” to pierce and remove pieces of a ceiling in the structure. He stopped participating in the fire suppression at that point. He reported the injury at work on January 9, 2000, and saw a doctor for the injury on the following day. He began treatment including a home exercise program and cortisone injections. During this time he continued to work full-time, although during his frequent doctor visits he reported continuing difficulty lifting objects overhead. After he again experienced a sharp pain in his shoulders in June 2000 while pulling on an equipment drawer at work, he began a course of formal physical therapy and received more injections. In October 2000, shortly after completing the course of physical therapy, the plaintiff reported that he had strained his shoulders and back while lifting a box.

¶ 5 The plaintiff injured his shoulders again on November 12, 2000, during a training exercise in which a fellow firefighter fell backwards with him while attempting to remove a simulated victim from a building through a window. He filled out an accident report for the fall and went to the hospital. The next day he saw his doctor again, who told him to stay home for one week and then resume physical therapy and full duty. The plaintiff continued to report pain in his shoulders and MRIs were taken. The plaintiff had surgery on his right shoulder on February 15, 2001, and remained off work for postoperative rehabilitation and physical therapy. He continued to feel pain in his shoulders and was scheduled for more surgery. He had a second surgery on his right shoulder on December 6, 2001. On December 20, 2001, the plaintiff returned to light duty work, with restrictions of no overhead lifting, no pulling of more than 10 pounds, and no repetitive use of machinery. On January 10, 2002, he experienced knee pain while kneeling at work and went to the hospital. He returned to light duty the following day but left for the hospital again due to a flare-up of his rhinitis and related symptoms; this was his last day of work for the fire department. He had surgery on his left shoulder on April 24, 2002, and again began postoperative rehabilitation and physical therapy. On October 3, 2002, he was advised that he had reached maximum medical improvement in his left shoulder, and that he would have permanent work restrictions that would make returning to work as a full-time firefighter unlikely.

¶ 6 The plaintiff filed for workers' compensation benefits with respect to the shoulder injury he sustained on January 4, 2000, other problems with his neck and back, and his diesel-induced rhinitis. On April 4, 2003, an arbitrator found that he was temporarily totally disabled by his diesel-induced rhinitis, which was a work-related condition. The defendant appealed this decision, and on December 23, 2003, the Industrial Commission (Commission) affirmed the finding of temporary total disability due to work-related diesel-induced rhinitis during the periods of November 25, 2001, through December 5, 2001; January 22, 2002, through April 14, 2002; and June 27, 2002, through November 17, 2002. (He had received temporary total disability payments on account of his other injuries at other times, but had not received any such payments during the specified periods, during which, the Commission found, he was temporarily totally disabled due to his rhinitis.) The plaintiff also applied for a line-of-duty disability pension. The pension board granted him the line-of-duty pension effective September 23, 2003. The parties later stipulated to the trial court that this pension was 65% of the plaintiff's prior salary and was “based on his shoulder injuries.”

¶ 7 On February 9, 2004, the Commission entered an order memorializing the settlement agreement reached by the parties regarding the plaintiff's various workers' compensation claims. The order contained the following relevant provisions:

“To resolve this dispute regarding the benefits due the petitioner under the Illinois Workers' Compensation or Occupational Diseases Act, we offer the following statements. We understand these statements are not binding if this contract is not approved.

* * *

Date of accident: 1/3/99; 4/21/99; 4/22/99; 1/4/00; 1/10/02

How did the accident occur? Diesel exposure in fire station; various injuries to neck, back, shoulder and knees.

What part of the body was affected? Man as a whole; neck, back and shoulders; neck and shoulders; right and left knees, shoulder and back.

What is the nature of the injury? Diesel exposure; disc bulges C5–C7 and T2–T3, cervical and lumbar strain, thoracic outlet syndrome, disc bulge at L4–L5 sciatica, right and left shoulder surgeries, including but not limited to rotator cuff tear with distal clavicle excision and subacromial decompression and bicipital tendinitis.

* * *

Temporary Total Disability Benefits: Compensation was paid for approximately 85 weeks at the rate of $843.47/week. The employee was temporarily totally disabled intermittently from 1/30/1999 through present.

* * *

An arbitrator or commissioner of the Commission previously made an award on this case on * * * 12/23/2003 [regarding] TTD 14–5/7 Permanent disability none Medical expenses none Other none

Terms of Settlement: * * *

Respondent agrees to pay and Petitioner agrees to accept the lump sum of $105,060.16 in full and final settlement of all claims for injuries and aggravations thereof, pursuant to the Illinois Workers' Compensation Act 820 ILCS 305 and/or Illinois Occupational Disease [ sic] Act 820 ILCS 310, resulting from Petitioner's accidental injuries or occupational diseases occurring during his employment with Respondent, including but not limited to 01/03/99; 4/21/99; 4/22/99; 1/4/00; 1/10/02. The settlement represents a compromise intended to extinguish Respondent's legal obligations for all known or unknown claims for which petitioner might seek recovery pursuant to the Illinois Workers' Compensation Act 820 ILCS 305 and/or Illinois Occupational Disease [ sic] Act 820 ILCS 310. Petitioner specifically waives all rights to review this agreement or request additional compensation pursuant to 820 ILCS 19(h). The settlement represents approximately 40% man as a whole and any and all disputes for temporary total disability and unpaid medical bills.”

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