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Edward Lindemulder v. the Board of Trustees of the Naperville Firefighters' Pension

March 8, 2011

EDWARD LINDEMULDER,
PLAINTIFF-APPELLANT,
v.
THE BOARD OF TRUSTEES OF THE NAPERVILLE FIREFIGHTERS' PENSION FUND AND THE CITY OF NAPERVILLE,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. Honorable Bonnie M. Wheaton, Judge, Presiding. No. 08-MR-1981

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.

OPINION

Plaintiff, Edward Lindemulder, appeals from an order of the circuit court of Du Page County affirming the decision of defendant the Board of Trustees of the Naperville Firefighters' Pension Fund (Board) denying his application for a line-of-duty pension and an occupational disease pension. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff became a firefighter/paramedic with defendant the City of Naperville (City) on January 4, 1988. On December 15, 2006, when plaintiff was 50 years old, the City placed him on a medical leave due to a serious health condition that made him unable to perform the essential functions of his job. In January 2007, a physician certified that plaintiff suffered from a permanent and irreversible condition called chronic obstructive pulmonary disease (COPD), which rendered plaintiff unable to tolerate the physical demands of his job. On January 15, 2007, plaintiff filed an application for disability benefits with the Naperville Firefighters' Pension Fund, seeking line-of-duty benefits under section 4-110 of the Illinois Pension Code (Code) (40 ILCS 5/4-110 (West 2006)) or, in the alternative, occupational disease benefits under section 4-110.1 of the Code (40 ILCS 5/4-110.1 (West 2006)). The City was granted leave to intervene. The Board held hearings on plaintiff's application over five days and received numerous exhibits into evidence.

The parties agreed that plaintiff's disability is permanent. Throughout the proceedings before the Board, plaintiff admitted that his COPD was caused by cigarette smoking. However, plaintiff contended that exposure to diesel fumes in the fire station and to fire smoke contributed to or exacerbated his COPD. The evidence before the Board revealed the following facts.

Growing up, plaintiff was exposed to second-hand cigarette smoke, and he began smoking cigarettes at age 16 or 17. During his active employment with the City, plaintiff smoked approximately a pack to a pack and a half of cigarettes per day. He was known to break off the filters in order to achieve better draws. As a firefighter/paramedic, plaintiff was called to a fire monthly or bimonthly. During fire suppression, plaintiff wore a self-contained breathing apparatus (SCBA). He was trained in its use and would wear it until instructed by a safety officer that he could remove it to begin salvage and overhaul operations at a fire scene. According to plaintiff, there were smoke and fumes present during salvage and overhaul operations.

Plaintiff underwent yearly fitness-for-duty medical examinations. In 1996, the examining physician noted that plaintiff's pulmonary functions were slightly decreased from past exams. Plaintiff began unintentionally to lose weight, and by 2000 he experienced shortness of breath when walking fast on level ground or up a slight incline, and he had a cough that produced phlegm. In 2002, his tests revealed possible early obstructive pulmonary impairment. In 2005, the examining physician reported that plaintiff suffered from "obstructive lung disease most likely secondary to his excessive smoking." All of plaintiff's attempts to stop smoking were unsuccessful.

On October 25, 2006, plaintiff collapsed to the floor during training in the SCBA trailer. His supervisor found him on the floor with labored breathing and his regulator off. Plaintiff stated that he could not catch his breath and could not get enough air. On November 21, 2006, plaintiff's superiors took him off duty, and after medical tests showed that his COPD was advanced to the stage where he could no longer perform firefighting functions, plaintiff never returned to duty. On January 11, 2007, an examining physician found that plaintiff had significant "dyspnea with exertion [shortness of breath with effort] and cannot tolerate the physical demands of his job due to his COPD."

From 1998 to 2006, plaintiff was assigned to fire station No. 3, where he lived and slept during his 24-hour shifts. According to plaintiff, there was no negative pressure room for storing turnout gear (coats and pants worn by firefighters at fire suppression). Two diesel vehicles were assigned to station No. 3: Engine 3 and Medic 3. As of 2000 or 2001, station No. 3 was equipped with a Nederman system, which is a set of exhaust hoses that attach to diesel engine tail pipes. Firefighters hook up the hoses to the vehicles when they pull into the station, and the system exhausts the diesel fumes out of the station. Plaintiff testified that because of the configuration of station No. 3 the firefighters hooked up the hoses to the vehicles only after the vehicles had already been parked inside the station. The apparatus floor where the vehicles were parked was separate from the sleeping quarters. The two areas were separated by self-closing doors.

In station No. 3, plaintiff observed heavy black dust, which he believed came from the diesel exhaust. He testified that he would wake up with an irritated throat, a cough, sometimes a runny nose, and sometimes irritated eyes. According to plaintiff, other firefighters experienced similar symptoms. Plaintiff did not request a transfer out of station No. 3. Captain Rick Sander worked at station No. 3 and was plaintiff's officer. Sander testified that he, along with other firefighters, developed upper respiratory symptoms while working at station No. 3. Sander did not obtain treatment or a diagnosis. According to Sander, mold studies done at the station were negative, although he recalled seeing black mold after remodeling was done.

Firefighter/Paramedic Jody Jones, a nonsmoker, began experiencing a cough, sinus infections, and colds after she was assigned to work in station No. 3. She was diagnosed with reactive airway disease, which could have been caused by diesel fumes, mold, or other environmental substances.

Firefighter/Paramedic John Adair testified regarding air purifying machines installed at the Naperville fire stations, particularly at station No. 3, where people seemed to be getting a lot of colds. The machines were purchased to help alleviate dust, allergy, and mold problems. Every 28 days Adair cleaned the filters in the machines at station No. 3 as well as at other stations. He testified that the filters at station No. 3 were disgustingly dirty compared to those at ...


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