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Di Falco v. Board of Trustees

OPINION FILED DECEMBER 31, 1986.

JAMES B. DI FALCO, PLAINTIFF-APPELLANT,

v.

THE BOARD OF TRUSTEES OF THE FIREMEN'S PENSION FUND OF THE WOOD DALE FIRE PROTECTION DISTRICT NO. ONE ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiff, James B. Di Falco, a discharged probationary fireman, brought an action for administrative review against defendant, the board of trustees of the Firemen's Pension Fund of the Wood Dale Fire Protection District No. One (board). Plaintiff sought judicial review of the Board's dismissal of his application for a line-of-duty disability pension by reason of the untimeliness of the application. The trial court affirmed the decision of the board to dismiss the application. The court also granted the motion of the board of fire commissioners (commissioners) of the district to dismiss it as a party defendant. Plaintiff appeals.

The facts are largely undisputed. Plaintiff had been a paid on-call fireman from September 1977 until June 1, 1982, when he was appointed a probationary fireman-paramedic. While on duty in October 1982, he sustained injuries to his back and spine necessitating a full physical disability leave beginning about December 2, 1982.

On May 2, 1983, plaintiff received a letter from the commissioners that advised him that in February 1983 the commissioners decided to extend his probationary status for a period equal to the amount of time between December 2, 1982, to whenever he returned to full-time service. While in the hospital recovering from a medical procedure relating to his disability, plaintiff received a letter from the commissioners dated May 26, 1983, advising him that effective on that date he was no longer a member of the firefighting force of the district.

Approximately a year later, May 24, 1984, plaintiff submitted his application for a duty-related pension to the board pursuant to the terms of the Illinois Pension Code relating to disability pensions. (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-110). The board ordered plaintiff to undergo examinations by three physicians as provided for in section 4-112 of the Pension Code (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-112).

By motion of January 29, 1985, the Wood Dale fire protection district (district) moved the board to deny plaintiff's application on the ground that as a matter of law plaintiff was not entitled to apply for a disability pension. The essence of the motion was that since plaintiff had been discharged May 26, 1983, from his probationary employment, he was no longer a "fireman" and therefore did not qualify under the description of "any fireman" as that term is used in section 4-110 of the Pension Code (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-110), and that, as a matter of law, in order to qualify for a duty-related disability pension an individual must be a "fireman" at the time of the application. Appended to the motion was this court's decision in Freberg v. Board of Trustees of Firemen's Pension Fund (1970), 128 Ill. App.2d 369, 262 N.E.2d 22. The motion was granted, and the plaintiff's application was dismissed. Thereafter, plaintiff brought the instant complaint for administrative review.

On administrative review the trial court affirmed the decision of the board. The court also granted the motion of the commissioners to be dismissed as party defendants.

On appeal plaintiff contends that having incurred injuries while on duty as a probationary firefighter before his discharge, he had a vested right in a firemen's disability pension. Plaintiff contends that since July 1, 1971, the effective date of the Illinois Constitution of 1970, the courts have held that firemen and policemen have contractual rights to their pensions as they existed on the date of their employment or July 1, 1971, if employed prior to such date, and to any further beneficial changes in their particular pension article if they make payments to the pension funds. Plaintiff argues that on the date of his discharge, about May 26, 1983, he had no reason to apply for a disability pension, particularly because he was entitled to a year of full salary by reason of the duty-related injury pursuant to section 1 of "An Act to provide for the continuation of compensation of law enforcement officers, etc." (Ill. Rev. Stat. 1981, ch. 70, par. 91). Plaintiff contends that if the board's decision were to be upheld, then any firefighter who sustained a duty-related injury and was discharged before he could make a pension application would be denied his constitutionally protected pension rights.

Plaintiff relies on section 4-105b of the Illinois Pension Code as a second reason why an injured fireman may not be able to apply for a disability pension before being discharged from his probationary period. Section 4-105b provides:

"`Permanent disability': any physical or mental impairment that (a) can be expected to result in death, (b) has lasted for a continuous period of not less than 12 months, or (c) can be expected to last for a continuous period of not less than 12 months." (Ill. Rev. Stat. 1981, ch. 108 1/2, par. 4-105b.)

Plaintiff contends he could not meet the three criteria of the permanent disability provision on a date before he was discharged May 26, 1983.

Finally, plaintiff argues that the trial court erred in dismissing the commissioners as a party defendant.

Defendant board contends that this case turns on the question of whether a former probationary fireman who has been discharged prior to the end of his probationary period is entitled to disability pension when application is made for the pension almost 12 months after the discharge. The board contends that that is the only issue in the case. It is the board's position that this court's decision in the case of Freberg v. Board of Trustees of the Firemen's Pension Fund (1970), 128 Ill. App.2d 369, 262 N.E.2d 22, controls the outcome of this appeal.

In Freberg the plaintiff was a fireman of 18 years' service at the time he was suspended without pay for conduct unbecoming an officer. Specifically, he had been accused of and admitted to committing acts of indecent exposure before children. A civil service hearing was held and at that hearing the plaintiff first presented his theory that his conduct was the product of a mental disability. The hearing officer recommended that the plaintiff be suspended for one year, and the civil service commission on review of that decision affirmed the hearing officer's findings and increased the sanction from suspension to dismissal. Subsequently, the plaintiff made an application under section 4-111 of the Illinois Pension Code (Ill. Rev. Stat. 1967, ch. 108 1/2, par. 4-111) for a "not in the line of duty" disability pension based on the allegation that his mental condition constituted a permanent emotional disturbance. The pension board denied the application; the decision was reversed on administrative review by the ...


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