Vill. of Buffalo Grove v. Bd. of Trs. of the Buffalo Grove Firefighters' Pension Fund

• Decision Date: 17 January 2020
• Docket Number: No. 2-19-0171,2-19-0171
• Parties: The VILLAGE OF BUFFALO GROVE, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF the BUFFALO GROVE FIREFIGHTERS' PENSION FUND and Kim Hauber, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190171

141 N.E.3d 1200

436 Ill.Dec. 104

The VILLAGE OF BUFFALO GROVE, Plaintiff-Appellant,

v.The BOARD OF TRUSTEES OF the BUFFALO GROVE FIREFIGHTERS' PENSION FUND and Kim Hauber, Defendants-Appellees.

No. 2-19-0171

Appellate Court of Illinois, Second District.

Opinion filed January 17, 2020

William H. Nichols, Gregory R. James, and Chad R. DeGroot, of Laner Muchin, Ltd., of Chicago, for appellant.

Carolyn Welch Clifford, Michael B. Weinstein, and John E. Motylinski, of Ottosen Britz Kelly Cooper Gilbert & Dinolfo, Ltd., of Naperville, for appellee Board of Trustees of the Buffalo Grove Firefighters’ Pension Fund.

Thomas W. Duda and Thomas E. Mazur, of Law Offices of Thomas W. Duda, of Palatine, for other appellee.

Richard J. Reimer and Brian J. LaBardi, of Reimer & Dobrovolny PC, of Hinsdale, for amici curiae Illinois Public Pension Fund Association et al.

Margaret Angelucci and Matt Pierce, of Asher, Gittler & D’Alba, Ltd., of Chicago, for amicus curiae Associated Fire Fighters of Illinois.

Matthew S. Jarka, of Asher, Gittler & D’Alba, Ltd., of Chicago, for amicus curiae Buffalo Grove Professional Firefighters’ Association.

Robert J. Smith Jr., Benjamin E. Gehrt, and Paul A. Denham, of Clark Baird Smith LLP, of Rosemont, for amici curiae Northwest Municipal Conference et al.

Tacy F. Flint and Caroline A. Wong, of Sidley Austin LLP, of Chicago, and Carter G. Phillips, of Sidley Austin LLP, of Washington, D.C., for amicus curiae Illinois Municipal League.

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

¶ 1 The defendant the Board of Trustees of the Buffalo Grove Firefighters' Pension Fund (Board) issued a decision finding that the defendant Kim Hauber, the widow of former firefighter John Hauber (Hauber), was entitled to receive survivor's benefits accruing from a line-of-duty (duty) pension following Hauber's death from colon cancer

. The plaintiff, the Village of Buffalo Grove (Village), which had intervened in the Board proceedings, filed an administrative review action. The circuit court affirmed the Board's decision, and the Village now appeals.

¶ 2 I. BACKGROUND

¶ 3 Hauber was born in 1967 and joined the Buffalo Grove Fire Department in May 1994 as a firefighter/paramedic. His job duties included, among other things, responding to emergency medical and fire calls, providing rescue services including removing fire or accident victims to safe locations, and participating in post-fire salvage operations. The job requirements included the ability "to face possible exposure to carcinogenic dusts, such as asbestos, toxic substances such as hydrogen cyanide, acids, carbon monoxide, or organic solvents either through inhalation or skin contact." Records produced by the fire department showed that during his career Hauber responded to at least 127 fire calls that included building fires, vehicle fires, and outdoor fires involving flammable chemicals.

¶ 4 In May 2014, after 20 years of service with fire departments in Buffalo Grove and other municipalities, Hauber was diagnosed with colon cancer

. In October 2014, he applied for a duty disability pension or, in the alternative, an occupational disease disability pension. By June 2015, Hauber's cancer had gone into remission and he was able to return to work full time. He withdrew his application for a disability pension, on which the Board had not yet ruled.

¶ 5 Unfortunately, Hauber's cancer

returned in 2017. In June 2017, he underwent genetic testing, and in July his treating physician at the cancer center, Dr. George Salti, noted that the test "showed no deleterious mutation" that would suggest a genetic cause for the cancer. In August 2017, Hauber filed two new applications for disability pensions. The first sought a duty pension for disabling back pain, which, he stated, arose from a May 2017 on-the-job incident. The second sought an occupational disease pension for his colon cancer.

¶ 6 Duty disability pensions are governed by section 4-110 of the Illinois Pension Code (Code):

"§ 4-110. Disability pension-Line of duty. 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 effects of acts of duty, is found * * * 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, the firefighter shall be entitled to a disability pension * * *." 40 ILCS 5/4-110 (West 2014).

¶ 7 Occupational disease disability pensions are governed by section 4-110.1 of the Code. That section includes a legislative finding that firefighters are often exposed to, among other things, "heavy smoke fumes, and carcinogenic, poisonous, toxic or chemical gases," and it establishes a presumption that certain diseases are caused by firefighting work, as long as various requirements are met:

"§ 4-110.1. Occupational disease disability pension. The General Assembly finds that service in the fire department requires firefighters in times of stress and danger to perform unusual tasks; that firefighters are subject to exposure to extreme heat or extreme cold in certain seasons while performing their duties; that they are required to work in the midst of and are subject to heavy smoke fumes, and carcinogenic, poisonous, toxic or chemical gases from fires; and that these conditions exist and arise out of or in the course of employment.

* * *

Any active firefighter who has completed 5 or more years of service and is unable to perform his or her duties in the fire department by reason of a disabling cancer

, which develops or manifests itself during a period while the firefighter is in the service of the fire department, shall be entitled to receive an occupational disease disability benefit during any period of such disability for which he or she does not have a right to receive salary. In order to receive this occupational disease disability benefit, (i) the type of cancer involved must be a type which may be caused by exposure to heat, radiation or a known carcinogen as defined by the International Agency for Research on Cancer and (ii) the cancer must (and is rebuttably presumed to) arise as a result of service as a firefighter." Id. § 4-110.1.

¶ 8 As required, the Board set about obtaining independent medical evaluation (IME) reports from three doctors. Hauber's medical records and employment records, including the records of his fire calls, were provided to the doctors. About that time, Hauber was advised that he likely had only two weeks to live. Consequently, although the Board had not yet obtained the IME reports, the Board held an emergency hearing on September 5, 2017, for the limited purpose of preserving Hauber's testimony.

¶ 9 In November 2017, Dr. Daniel Samo issued an IME report and a certification of disability. Like all of the IME reports received by the Board in this case, it was based solely on a review of Hauber's medical records and the medical literature, not on any examination of Hauber. Dr. Samo opined on whether Hauber qualified for (a) a duty disability pension based on his back injury and (b) an occupational disease disability pension based on his colon cancer

. As to the back injury, Dr. Samo found that it was not Hauber's primary disabling condition (the colon cancer was) and that there was "no way to judge if it would be disabling" given the other disabling effects of the cancer. Further, there was no objective change in the condition of Hauber's back following the May 2017 incident.

¶ 10 As for the colon cancer

, Dr. Samo evaluated it solely in the context of whether it met the criteria for an occupational disease disability pursuant to section 4-110.1 of the Code. Dr. Samo found that Hauber qualified for such a pension. Specifically, he certified that Hauber's cancer

was "a type of cancer which may be caused by exposure to heat, radiation, or a known carcinogen as defined by the International Agency for Research on Cancer" (IARC), that Hauber's disability resulted "from service as a firefighter and/or paramedic," and that the cancer manifested itself while Hauber was in the service of the fire department and it arose from that service. In his report, Dr. Samo described five "major studies" that were relevant to his opinions. Two of these, the 2006 LeMasters study (a review and meta-analysis of 32 studies on cancer among firefighters) and the 2013 Daniels study (studying the incidence of cancer in firefighters in San Francisco, Chicago, and Philadelphia from 1950 through 2009), found an association between firefighting and colon cancer. The three other studies did not. Dr. Samo found that the Daniels study was the "most robust" study and believed that its conclusions were the most reliable. He stated that he "would therefore be of the opinion that there is an association between firefighting and [ ] Hauber's cancer."

¶ 11 Dr. Edward James produced a certification of disability and an IME report in December 2017, finding that Hauber was permanently disabled by his colon cancer

. Dr. James went farther than Dr. Samo, addressing whether the cancer resulted from "the performance of an act of duty or from the cumulative effects of acts of duty," an issue that bore on whether Hauber qualified for a duty disability pension based on the cancer. He concluded that this was "medically possible." He also certified that Hauber's cancer met the criteria for an occupational disease disability pension. In his report, Dr. James opined that it was "possible that [Hauber's] risk of developing colon cancer was significantly increased due to his service as a firefighter/paramedic." This opinion was based on the facts that Hauber did not have colon cancer when he was first hired, that he developed colon cancer while employed as a firefighter, and that his genetic testing "did not reveal a specific genetic basis for his cancer." The opinion was also based on medical literature, including the "B...