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Earl L. Filskov v. the Board of Trustees of the Northlake Police Pension Fund

April 5, 2011

EARL L. FILSKOV,
PLAINTIFF-APPELLEE,
v.
THE BOARD OF TRUSTEES OF THE NORTHLAKE POLICE PENSION FUND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Peter Flynn, Judge Presiding. No. 09 CH 18764

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Connors concurred in the judgment and opinion.

Presiding Justice Cunningham dissented, with opinion.

OPINION

On October 5, 2007, plaintiff, Police Officer Earl Filskov's assigned duty was to patrol the streets looking for gang activity. After finishing preparing station reports he returned to his police vehicle along with two other officers. While entering the rear seat he suffered an injury to his foot. He applied to the Northlake Police Pension Fund (Pension Board) for a line of duty disability pension benefit or, in the alternative, a not on duty disability pension benefit. The Pension Board unanimously voted to deny Officer Filskov's application for a line of duty disability pension benefit, but granted his application for a not on duty disability pension benefit. On administrative review, the circuit court reversed the Pension Board's decision and entered judgment in favor of Officer Filskov for an on duty disability pension benefit. The Pension Board appeals from the circuit court's judgment. The facts of this case establish that Officer Filskov did not suffer a line of duty disability. The Pension Board's examination of the legal effect of those facts, and its decision that the injury did not result from the performance of an act of duty was not clearly erroneous. Accordingly we reverse the decision of the circuit court, as Officer Filskov's injury was not sustained while performing an act of duty as required under section 3-114.1(a) of the Illinois Pension Code (Pension Code). 40 ILCS 5/3-114.1(a) (West 2008).

JURISDICTION

The circuit court reversed the Pension Board's decision and entered judgment in favor of Officer Filskov on October 28, 2009. On November 16, 2009, the Pension Board filed its notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb.1, 1994); R. 303 (eff. May 30, 2008).

BACKGROUND

On October 5, 2007, Officer Filskov was on duty and in uniform as a member of the City of Northlake police force. Officer Filskov was assigned to an unmarked police car along with two other officers. He testified that all three officers were at the Northlake Police Station either finishing up an arrest or a report. All three officers were assigned to the Neighborhood Enforcement Team (NET), which is a gang suppression unit. Officer Filskov testified that NET officers "are constantly on the street as much as possible looking for any active gang activity, any narcotic related activity" in addition to "all the other normal work that a uniform patrol officer would do." At approximately 10:30 p.m., Officer Filskov and the other two officers left the police station and walked to the squad car in the police station's parking lot to resume patrol.

They had yet to resume their patrol and were not acting in response to a call for service. As he was standing outside the open door of the squad car, the officer driving the car inadvertently put the car in drive and drove over Officer Filskov's foot. He described the incident, testifying that as he opened the backseat car door to get into the backseat, he noticed some items on the seat. While standing on the parking lot pavement he bent over to move the items when the car unexpectedly moved forward and a rear tire injured his foot.

Based on his injuries from the incident, Officer Filskov applied for disability benefits to the Pension Board, claiming a line of duty disability pension benefit, or in the alternative, a not on duty disability pension benefit. Following a hearing on February 20, 2009, the Pension Board issued its written decision and order on May 20, 2009. The Pension Board found that Officer Filskov "is physically disabled and that his disability renders necessary his suspension or retirement from police service." The Board found "the performance of an act of duty" did not cause or contribute to Officer Filskov's disability under the Pension Code.

The Pension Board explained its conclusion:

"The Pension Board has extensively reviewed the evidence in the administrative record and the testimony from the hearing to assess whether the Applicant was involved in an act of police duty inherently involving special risk not ordinarily assumed by a citizen in the ordinary walks of life. There is no evidence in the record to suggest that the Applicant was involved in an 'act of duty.' Rather, the Applicant faced the same risk ordinarily assumed by any citizen who chooses to become a passenger in a vehicle.

Certainly the Pension Board is aware of the fact that because such an injury could have befallen anybody who chooses to become a passenger in a vehicle does not, in itself, foreclose a line of duty disability pension. The key consideration is the capacity in which the Applicant was acting. To this extent, the Applicant testified that the Applicant and the other officers were not responding to a call or in any way involved in an act of police duty inherently involving a special risk. The Applicant was merely standing next to the squad car when Officer Mango mistakenly drove over his left foot."

The Pension Board granted Officer's Filskov's alternative request that he be given a not on duty disability pension. On administrative review, the circuit court reversed the Pension Board's decision and entered judgment in favor of Officer ...


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