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06/30/88 Averill A. English, v. the Village of Northfield

June 30, 1988

AVERILL A. ENGLISH, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF NORTHFIELD ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

526 N.E.2d 588, 172 Ill. App. 3d 344, 122 Ill. Dec. 329 1988.IL.1031

Date Filed: June 30, 1988; As Amended December 2, 1988.

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

Rehearing Denied July 27, 1988.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiff Averill A. English appeals from the trial court's affirmance of a decision of defendant Village of Northfield Police Pension Fund Board (board) denying him a line of duty disability pension. Plaintiff worked as a police officer for defendant Village of Northfield from 1966 until he was disabled in 1985, whereupon he received a 50% nonduty disability pension. In 1987, the board denied his request to upgrade his pension to 65% for a line of duty disability.

Evidence adduced at the hearing before the board includes the following: In 1972, plaintiff suffered an off-duty injury when he broke his back after falling off a ladder. In March 1978, he slipped on ice while filling a squad car with gasoline. In June 1979, his squad car was struck by a motorcycle. In April 1982, while plaintiff was preparing an accident report in the driver's car, that car was struck by another car. In May 1982, plaintiff hit his head against a gas station sign. In September 1984, another car struck plaintiff's squad car. On March 10, 1985, while attending a police seminar, plaintiff experienced pain when he bent over to pick up something. On March 10, 1985, he suffered pain while operating a squad car and has not worked as a police officer since that date. There is no dispute that plaintiff is disabled.

In requesting an upgrade of his pension, plaintiff alleged that he was entitled to a line of duty pension, either because his back condition was aggravated by several injuries that had occurred while he was on duty or because he was forced to quit working after experiencing pain while operating a squad car in March 1985. At the board hearing, plaintiff stated that he took snowmobile trips of up to 300 miles each year. Reports from various doctors were submitted and examined. None of these reports specify a cause for plaintiff's continuing back problems. The medical reports regarding the work-related incidents through September 1984 make no mention of any back injury. Furthermore, plaintiff took no time off work subsequent to three of the on-duty accidents.

The board found that the facts were insufficient to show that plaintiff's activity when he became disabled carried a risk incidental to employment, and therefore concluded that there were insufficient facts to establish that his disability resulted from any of his work-related accidents. Subsequently, plaintiff filed for administrative review in the circuit court, which affirmed the board's decision because it was not against the manifest weight of the evidence. We affirm.

On appeal, plaintiff contends he is entitled to line of duty disability payments in accordance with section 3 -- 114.1 of the Illinois Pension Code, which provides in part:

"Disability pension-Line of duty. If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement. A police officer shall be considered 'on duty,' while on any assignment approved by the chief of the police department of the municipality he or she serves, whether the assignment is within or outside the municipality." Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-114.1.

Plaintiff interprets this provision as entitling him to the 65% pension because he proved that he was performing a job-related duty -- operating a squad car -- when he became disabled. He relies on Johnson v. Retirement Board (1986), 114 Ill. 2d 518, 502 N.E.2d 718, for the proposition that a presumption of job relatedness should be applied to police injuries or illnesses. To further support this argument, he cites a New York case which held that public policy creates a presumption that a police officer's disability was sustained as a result of his employment. (Breslin v. New York City Police Pension Fund (1981), 111 Misc. 2d 184, 444 N.Y.S.2d 347.) However, Breslin was later reversed. (Breslin v. New York City Police Pension Fund (1983), 92 A.D.2d 800, 460 N.Y.S.2d 304, aff'd (1983), 60 N.Y.2d 622, 454 N.E.2d 935, 467 N.Y.S.2d 352.) Plaintiff also asserts that bank injury cases should be analogized to "heart statute" cases, wherein a presumption of job relatedness is presumed in cases of heart illnesses. He notes that when a worker's ...


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