Appeal from the Circuit Court of Cook County No. 11 CH 35001 Hon. Michael B. Hyman, Judge Presiding
The opinion of the court was delivered by: Justice Epstein
JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.
¶ 1 Plaintiff Bruce Summers, a police officer with the Chicago police
department (CPD), applied for disability benefits after he was injured
while performing an assigned duty of lifting and handling police
supplies. Defendant Retirement Board of the Policemen's Annuity and
Benefit Fund of the City of Chicago (the Board) conducted an
evidentiary hearing regarding the application. The Board determined
that Summers was disabled but denied duty disability benefits and
instead awarded ordinary disability benefits at 50% of his salary.
Summers filed a petition for administrative review. The circuit court
of Cook county reversed the Board's order
and awarded Summers duty disability benefits at 75% of his
salary. The Board filed this appeal.
¶ 2 For the reasons stated herein, we reverse the ruling of the circuit court and affirm the decision of the Board.
¶ 4 The Board conducted an evidentiary hearing on August 25, 2011, regarding Summers' disability benefits application. During the hearing, Summers testified he became a police officer in 1993 and worked for the CPD equipment and supply section beginning in 2006. Summers' job responsibilities included loading and unloading a box truck and making deliveries of equipment and supplies to police facilities. Summers testified that "we were delivering equipment and supplies of up to two to three hundred boxes per day and the boxes were weighing on average between 75 and 100 pounds per box." Summers stated that the "truck crew" made deliveries and pickups in accordance with schedule provided by his supervisor. While performing his duties, Summers wore a firearm and was in uniform. He drove a blue and white police truck with "Chicago Police" written on its sides.
¶ 5 On May 5, 2010, a box fell out of Summers' hands as he was lifting it in the truck to hand it to his partner who was on the ground placing the items in a cart. Summers testified that his arm "went kind of dead, and [he] felt something in between [his] neck and [his] shoulder. [He] was in immediate pain." This incident occurred the day before a month-long scheduled furlough. After taking the furlough, Summers went to the CPD medical section on approximately June 21, 2010. On August 21, 2010, Summers had an MRI that showed degenerative disk changes and an "extruded fracture on the right side." Summers later "received a three (3) level fusion, anterior diskectomy at C3-C4, C4-C5, and C5-C6."
¶ 6 Peter Orris, M.D., the Board's consulting physician, testified that he reviewed Summers' medical file, including the MRI report. According to Dr. Orris' testimony, the MRI showed findings described as degenerative changes in the neck area. Dr. Orris stated that "[b]ased on the history, the medical records here, it would appear likely that some of those degenerative changes predated the May accident and that the May accident was the straw that broke the camel's back with respect to this situation." Dr. Orris acknowledged that most people suffer from degenerative disk disease as part of the aging process, but testified that "[t]his is a much more substantial disease in this area than you would expect in somebody of his age and his conditioning, et cetera."
¶ 7 On September 15, 2011, after reviewing the testimony of Summers and Orris, as well as medical reports included in the record, the Board entered an order including its findings of fact and conclusions of law. The order provided, among other things, that: (i) Summers was disabled;
(ii) "Summers, while on duty and performing assigned tasks of delivery supplies, equipment, furniture, radios, etc. to police facilities, was not in the performance of an 'Act of Duty' *** as such is defined in the Act"; and (iii) accordingly, Summers' application seeking duty disability benefits was denied and he was awarded ordinary disability benefits. The Board specifically stated that the "Board having found Summers disabled, not as the result of an 'Act of Duty' benefit, does not need to and does not address any medical issue as to what if any impact Summers' pre-existing condition may have on his current disability."
¶ 8 Summers filed a petition for administrative review. The circuit court entered an order on April 12, 2012 finding the "Board's decision in denying Petitioner duty disability benefits was clearly erroneous." The court reversed the Board's decision and awarded Summers duty disability benefits at 75%. The circuit court's order provides that the Board "has waived its right to address the issue of pre-existing medical injuries in its brief." The Board filed this appeal.
¶ 10 The Board contends on appeal that Summers was injured while on duty, but his injury was not the result of an "act of duty" as defined in section 5-113 of the Illinois Pension Code (the Code). 40 ILCS 5/5-113 (West 2010). Only an injury that was incurred in the performance of an act of duty could entitle Summers to "duty" disability at an amount equal to 75% of his salary. See 40 ILCS 5/5-154 (West 2010). If Summers became disabled as the result of any cause other than an injury incurred in the performance of an act of duty, he would be entitled to "ordinary" disability at an amount equal to 50% of his salary. See 40 ILCS 5/5-155 (West 2010). The Board asserts that its decision that Summers' injury was not the result of an act of duty was not clearly erroneous and thus the circuit court should not have reversed.
¶ 11 The Board also contends that it never reached the "issues pertaining to pre-existing conditions" relevant to determining whether Summers would be entitled to duty disability benefits at the 75% or at a reduced 50% level, pursuant to section 5-154(a)(i) (40 ILCS 5/5-154(a)(i) (West 2010)). Thus, the Board asserts, the circuit court's "decision affirmatively granting duty disability benefits" was beyond the court's subject matter jurisdiction and "should be treated as void."
¶ 13 The first issue is whether Summers became disabled as the result of an injury incurred in the performance of an "act of duty." Illinois courts addressing this issue have applied varying standards of review. Some courts have considered this issue a mixed question of law and fact and have applied a "clearly erroneous" standard. See, e.g., Merlo v. Orland Hills Police Pension Board, 383 Ill. App. 3d 97, 100 (2008). In cases where the facts are undisputed and the sole issue is the meaning of "act of duty," other courts have applied a de novo standard of review. See, e.g., Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 836-37 (2008); Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595, 598 (2004). Some courts have even considered this ...