9-27-11; Appellate ruling overturning Pension Board finding on causation hard to figure. In our view, the reviewing courts are supposed to let pension boards decide the facts and not supplant...

The Appellate Court upheld the Circuit Court decision reversing a Pension Board’s denial of a police officer’s request for a line-of-duty pension in Rose v. The Board of Trustees of the Mount Prospect Police Pension Fund, No. 1-10-2157 (September 15, 2011). Officer Michael D. Rose was in an automobile accident on February 21, 2004 while on duty and driving his squad car. He was subsequently involved in an off-duty automobile accident on June 1, 2004. As a result of the February 2004 accident Rose contended he suffered permanent disabling injuries to his back and requested a line-of-duty pension. This request was denied by the Pension Board, but a non-duty disability pension was granted.


In denying the line-of-duty pension the board determined:


1)    The February 21, 2004 accident did not occur while Petitioner was performing an "act of duty"; and

2)    The February 21, 2004 accident was not a contributing cause of the petitioner's undisputed disability; rather the disability was caused by the injuries Petitioner sustained in the later June 1, 2004 off-duty accident.


The Circuit Court reversed the Pension Board’s decision and found Rose was entitled to a line-of-duty pension. On appeal the Appellate Court reviewed evidence regarding both automobile accidents and reports and deposition transcripts from a number of doctors who examined Rose.

Section 5-113 of the Pension Code defines the term "act of duty" as "[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman." 40 ILCS 5/5-113 (West 2006). In Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518 (1986), the Supreme Court for the first time interpreted the definition of an "act of duty," as defined by section 5-113 of the Pension Code, and expressly rejected the notion the term "special risk" encompasses only inherently dangerous activities. The Supreme Court in Johnson held the capacity in which the officer is acting when he is injured will determine whether an officer is entitled to a line-of-duty pension.

In the present case, the Board found Rose was not performing an act of duty because the investigation he was working on did not involve special risks not ordinarily assumed by a citizen in ordinary walks of life. The Appellate Court noted at the time of the first accident Rose was in full gear inside his marked squad car, and was performing his patrol duties, which required special skills not ordinarily encountered by everyday citizens, namely “having his attention and energies directed towards being prepared to deal with any eventuality”. Johnson, at 522. As such the Court determined the Board’s conclusion Rose was not performing an act of duty to be clearly erroneous.

Regarding the cause of Rose’s disability the Pension Board held Rose’s disability did not result from the on-duty February 2004 accident, but solely from the off-duty June 2004 accident because Rose had fully recovered from the on-duty accident before the off-duty accident. The Appellate Court noted it is well established that "a disability may result from multiple causes," and that in order to obtain a full line-of-duty pension, "[a] claimant need not prove that a duty-related accident is the sole cause, or even the primary cause, of his disability." Luchesi v. Retirement Board of the Firemen's Annuity & Benefit Fund, 333 Ill. App. 3d 543, 550 (2002). Rather, a claimant must only prove that the duty related accident "is a causative factor contributing to the claimant's disability." Luchesi at 550.

The Appellate Court stated none of eight doctors involved in this case when informed of the second accident dismissed the first accident as a contributing factor to Rose’s disability. Four doctors opined the first accident was the cause of Rose’s permanent disability while the second accident merely exacerbated Rose’s symptoms. The remaining four physicians refrained from determining which accident, if any, caused Rose’s disability. The Board relied on one doctor’s opinion that Rose had fully recovered prior to the second accident. This opinion was based solely on a review of medical records and was contradicted by notes of Rose’s family physician which indicated Rose continued to have pain complaints. The Appellate Court held the Board’s conclusion Rose fully recovered from the 2004 accident, such that the injuries from this accident played no part in the ultimate disability, to be contrary to the manifest weight of the evidence and the Circuit Court decision was affirmed.

This article was researched and written by Matthew Ignoffo who can be reached at mignoffo@keefe-law.com.