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Freberg v. Board of Tr. of Firemen's P. Fund

SEPTEMBER 1, 1970.

NORMAN FREBERG, PLAINTIFF-APPELLEE,

v.

THE BOARD OF TRUSTEES OF THE FIREMEN'S PENSION FUND OF THE CITY OF HIGHLAND PARK, ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. DON FOSTER, Judge, presiding. Judgment of the trial court reversed; order of the defendant Board affirmed.

JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

Plaintiff was denied a disability pension by the defendant. Upon administrative review, the trial court reversed the order of the defendant and this appeal followed.

In June of 1947, the plaintiff became a member of the fire department of the City of Highland Park and, shortly thereafter, was enrolled as a beneficiary under defendant's fund. Except for one minor incident, plaintiff's service record was good and, through the years, he attained the rank of Lieutenant.

On November 18, 1965, plaintiff was suspended without pay, for conduct unbecoming an officer, the suspension grounded upon acts (which the plaintiff admitted) of indecent exposure before children.

A formal proceedings was conducted before a hearing officer of the civil service commission, during which plaintiff was represented by counsel. Introduced at this hearing was testimony of the plaintiff, his wife, the chief of the department and a psychiatrist. It was the plaintiff's theory that his acts had been the result of a mental disturbance which was of a temporary nature, that said disturbance was corrected and that he should be returned to service. The hearing officer rendered a written report to the civil service commission, which report included findings of fact, conclusions of law and fact, recommendations, and comments. It was the hearing officer's recommendation that the plaintiff be suspended, without pay, for one year.

Upon review before the full civil service commission, the hearing officer's findings of fact and conclusions of law and fact were adopted by the commission. His recommendation that the plaintiff be suspended for one year was overruled, and the plaintiff was discharged as of July 19, 1967.

No appeal was taken from this decision.

On November 6, 1967, the plaintiff, through his attorney, made application to the defendant board for a non-service connected disability pension under section 4-111 of the Illinois Pension Code (Ill Rev Stats 1967, c 108 1/2, § 4-111). At the hearing, certain documentary evidence was introduced, which included the findings of the defendant's doctor who examined the plaintiff and issued an opinion that the plaintiff was ". . . a permanently emotionally disturbed fireman and should not return to his work." On June 14, 1968, the defendant rendered a decision which denied the plaintiff's application for a disability pension and directed that its treasurer refund to the plaintiff, on demand, the total amount of his contributions to the fund.

Upon administrative review, the trial court entered an order reversing this decision and remanding the matter to the defendant with directions to grant plaintiff's application for a disability pension as of the date of his termination from the service and, further, rescinding the defendant's order refunding the plaintiff's contribution to the fund.

On appeal, the defendant argues (1) that a pension cannot be granted to an applicant who has been discharged prior to attaining a minimum of 20 years of service and (2) the evidence sustains the finding of the defendant that the plaintiff was not permanently mentally disabled.

Between the time of the civil service commission hearing and that of the pension board hearing, plaintiff has changed his position. During the former proceedings he claimed that his condition was temporary, not permanent, that he had been cured and that he should be restored to active duty. In this proceedings, however, it is now plaintiff's position that his discharge was based upon a permanent mental disability which occurred prior to the discharge and that he, therefore, should be entitled to a disability pension under the statute.

It is defendant's argument that, upon his discharge, the plaintiff ceased to be a fireman and was thereafter barred from receiving any benefits under the same section of the statute.

The section in question (Ill Rev Stats 1967, c 108 1/2, § 4-111) reads as follows:

"Disability pension — not in duty. Any fireman having at least 10 years of creditable service who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found, upon examination by a competent physician ordered by the Board, to be physically or mentally permanently disabled so as to render necessary his retirement from service in the fire department, ...


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