Appeal from the Circuit Court of McHenry County. No. 11-MR-166 Honorable Michael T. Caldwell, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 On February 14, 2011, plaintiff, Mary Lee Eschbach, filed an application for a nonduty disability pension (40 ILCS 5/3-114.2 (West 2010)) because she allegedly suffers from a blood clot condition in her right leg. The McHenry Police Pension Board (Board) denied the application, finding that plaintiff's employment had been terminated in June 2010, and, therefore, plaintiff was ineligible to apply for a disability pension, based on Di Falco v. Board of Trustees of the Firemen's Pension Fund of the Wood Dale Fire Protection District No. One, 122 Ill. 2d 22, 30 (1988), and Freberg v. Board of Trustees of the Firemen's Pension Fund, 128 Ill. App. 2d 369, 375 (1970), which held that a police officer (or firefighter) has no right to disability benefits unless he or she applies for those benefits while still employed. On October 18, 2011, the trial court affirmed the Board's decision, and plaintiff appeals.
¶ 2 On appeal, plaintiff contends that (1) the Board erred in relying on Di Falco and Freberg, as the facts in her case are distinguishable; (2) the termination was made in bad faith; and (3) the termination was not legally valid, because she did not receive notice of it. The Board raises an additional argument that plaintiff's nonduty disability claim is foreclosed by the doctrine of res judicata because plaintiff could have made the present claim when she was proceeding on an earlier claim for a line-of-duty disability pension. We affirm.
¶ 4 Plaintiff joined the City of McHenry Police Department (police department) in February 1996. On June 25, 2005, she sustained an injury to her left wrist while attempting to subdue an arrestee at a local hospital. Plaintiff filed a workers' compensation claim for her injury in 2006. Plaintiff also filed an application for a line-of-duty disability pension with the Board on January 29, 2007, due to the injury to her wrist. On March 31, 2008, the Board found that plaintiff was not disabled and denied plaintiff's disability pension request. The trial court affirmed the Board's decision, and we affirmed the trial court's judgment on March 31, 2010. Eschbach v. McHenry Police Pension Board, No. 2-08-1146 (2010) (unpublished order under Supreme Court Rule 23). Plaintiff and the City of McHenry (City) settled the workers' compensation case on January 31, 2011.
¶ 5 On February 14, 2011, plaintiff filed with the Board her application for a nonduty disability pension due to arterial blood clots in her right leg. Plaintiff alleged that the condition was present and worsening when we affirmed the denial of her line-of-duty disability pension. She maintained that her symptoms began in January 2007 and worsened in January 2010.
¶ 6 The police department alleged that plaintiff never communicated with it as to whether she intended to return to work following our March 31, 2010, decision and that plaintiff moved and did not notify it of her new address. The record contains a notice-of-separation form signed on January 24, 2011, by John Jones, the chief of police. The notice provides that plaintiff's last day of employment with the police department was June 2, 2010, and that the reason for her termination was that plaintiff "[d]id not return to work after denial of a line-of-duty disability Pension request." There is nothing in the record to show that this notice was mailed to or received by plaintiff.
¶ 7 At the hearing before the Board, Vicky Zinanni, the human resources manager for the City, testified that the notice of separation indicated that plaintiff was separated from the police department on June 2, 2010, and that plaintiff had not made any pension contributions after she filed a disability pension application in January 2007. Zinanni did not know plaintiff's specific last date of employment, but she stated that she had a discussion with Jones about the final determination regarding plaintiff's line-of-duty disability pension claim, which occurred in late March 2010. Zinanni and Jones wanted to give plaintiff plenty of time to return to work, and when she did not, "that was the date." Zinanni testified that she was not sure when she had this discussion with Jones and that it was probably after June 2010, but she honestly did not remember. Zinanni did not play any role in deciding if and when a notice of separation should be completed and did not have an explanation as to why, if the last date of employment was in June 2010, the notice of separation was not completed until January 24, 2011.
¶ 8 Plaintiff testified that she has a history of arterial blood clots in her right leg and had five of them surgically removed. She began treatment in January 2007. Plaintiff stated that, following the March 2010 decision, she did not report back to work because of her blood clot condition. She stated that she never received a copy of the notice of separation informing her that her employment had been terminated. She assumed that the police department knew her address as of June 2010, because she had received some correspondence from it in January 2011 regarding the nonduty disability pension application. Plaintiff first found out that she had been terminated by the police department after she applied for the nonduty disability pension, when she received a letter from the police department's attorney informing her why she was not eligible.
¶ 9 Plaintiff testified that she and the City entered into a workers' compensation settlement contract, which she signed on January 31, 2011, and that, during the negotiations for the settlement of that case, she was informed by a representative of the City that she could apply for a nonduty disability pension.
¶ 10 On cross-examination, plaintiff stated that her attorney informed her about filing for the nonduty disability pension; he had discussed it with the workers' compensation attorney as part of the workers' compensation negotiations. When asked if she received any communications from the Board or from its legal counsel as to whether she could file for a nonduty disability pension in February 2011, plaintiff replied that she received only the pension application, which she had asked for. Plaintiff stated that she did not make any pension contributions after she filed the application for the line-of-duty disability pension in 2007. She stated that she did not report back to work after the Board's denial of her line-of-duty pension application was affirmed by this court in March 2010.
Plaintiff further stated that she did not communicate with the police department regarding whether she could take administrative leave and did not ...