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07/25/96 COLLEEN TONKOVIC v. RETIREMENT BOARD

July 25, 1996

COLLEEN TONKOVIC, PLAINTIFF-APPELLEE,
v.
THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94 CH 8381. Honorable Albert Green, Judge Presiding.

Released for Publication August 29, 1996.

The Honorable Justice O'brien delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Defendant the Retirement Board of the Fireman's Annuity and Benefit Fund of Chicago (Board) appeals from the circuit court's order reversing its decision to deny plaintiff, Colleen Tonkovic (Tonkovic), widow's duty death benefits pursuant to section 6-104 of the Illinois Pension Code. 40 ILCS 5/1-101 et seq. (West 1994). We affirm.

Plaintiff's decedent, Martin Tonkovic (decedent), was employed by the City of Chicago as a firefighter on February 16, 1969. On April 9, 1980, while fighting a fire, decedent suffered a heart attack. He was examined by the Board's physician, Dr. George Motto. Dr. Motto asserted that decedent was without symptoms of heart disease prior to April 9, 1980, but that after that date decedent had documented arteriosclerotic heart disease as manifested by the heart attack. With knowledge of the heart disease and because of decedent's heart attack, Dr. Motto prescribed that decedent should not perform the duties associated with the position of a firefighter. Furthermore, Dr. Motto found that decedent's condition fell within the parameters of section 6-151 of the Illinois Pension Code, which provides that an active fireman who becomes disabled as the result of a specific injury resulting from an act or acts of duty is eligible for duty disability benefits. 40 ILCS 5/6-151 (West 1994)

As a result of Dr. Motto's findings, the Board granted decedent duty disability. By statute, said disability benefits were to continue during the period of the disability until decedent reached the age of compulsory retirement. 40 ILCS 5/6-151 (West 1994).

On April 30, 1994, decedent suffered another heart attack and died. The death certificate, signed by Dr. Martin Rubin, attributes decedent's demise to "respiratory failure, due to or as a consequence of a ruptured aortic aneurysm, due to or as a consequence of artherosclerotic [sic ] heart disease." No autopsy was performed.

Decedent's widow, Tonkovic, applied to the Board for widow's duty death benefits pursuant to section 6-140 of the Illinois Pension Code. 40 ILCS 5/6-140 (West 1994). The Board conducted a hearing on the matter on August 17, 1994.

At the hearing, Tonkovic presented decedent's death certificate and various documents concerning his medical history. The Board's physician, Dr. Motto, testified that although decedent suffered a duty-related heart attack in 1980, the heart attack did not contribute to his demise in 1994. Instead, Dr. Motto testified that decedent died as a result of abdominal aortic aneurysm. Dr. Motto claimed a heart attack and an abdominal aneurysm are not connected, except that aneurysms and heart disease are caused by a similar process, that is, dissection or arteriosclerosis of the abdominal aorta. According to Dr. Motto, the recognized causes of arteriosclerosis are multifactorial: stress, high blood pressure, cholesterol, heredity, and smoking. He admitted, however, that long-term exposure to smoke, such as decedent's 11 years of being a firefighter before self-contained breathing apparatus were utilized, may have caused the arteriosclerosis.

Relying upon the testimony of Dr. Motto that decedent's 1980 heart attack did not contribute to his demise, the Board denied Tonkovic's request for widow's duty death benefits and instead granted her ordinary widow's benefits. Tonkovic filed a complaint for administrative review in the circuit court of Cook County.

On March 21, 1995, the circuit court conducted a hearing on Tonkovic's complaint. It found that the Board's decision was against the manifest weight of the evidence and entered an order reversing the decision of the Board. In so doing, the circuit court reasoned that because Dr. Motto admitted arteriosclerosis disease caused the aneurysm and that decedent had documented arteriosclerotic heart disease as manifested by the 1980 heart attack, there was no question that decedent died of arteriosclerosis. Furthermore, the circuit court found the Board ignored the fact that because decedent did not smoke, suffer from hypertension, and had no family history of arteriosclerosis, his greatest risk factor for arteriosclerotic heart disease was his employment as a firefighter. The Board appealed the circuit court's order.

A reviewing court may only set aside findings of an administrative agency's questions of fact if they are against the manifest weight of the evidence. Ernzen v. Board of Trustees of Batavia Firemen's Pension Fund, 96 Ill. App. 3d 1143, 1147, 421 N.E.2d 1065, 52 Ill. Dec. 202 (1981). A judgment will only be found as against the manifest weight of the evidence when it appears from the record that an opposite result is clearly evident. Ernzen, 96 Ill. App. 3d at 1148, 421 N.E.2d at 1068.

Section 6-140 of the Illinois Pension Code, dealing with widow's duty death benefits, provides in ...


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