Covello v. Vill. of Schaumburg Firefighters' Pension Fund, 1-17-2350

2018 IL App (1st) 172350

116 N.E.3d 1068

426 Ill.Dec. 768

Steven COVELLO, Plaintiff-Appellant,

v.The VILLAGE OF SCHAUMBURG FIREFIGHTERS' PENSION FUND, the Board of Trustees of the Village of Schaumburg Firefighters' Pension Fund, and the Village of Schaumburg, Defendants-Appellees.

No. 1-17-2350

Appellate Court of Illinois, First District, SECOND DIVISION.

September 25, 2018

Thomas Duda, of Palatine, for appellant.

Collins & Radja, of Naperville (Thomas S. Radja Jr., of counsel), for appellee Village of Schaumburg Firefighters’ Pension Fund and Board of Trustees of the Village of Schaumburg Firefighters’ Pension Fund.

Clark Baird Smith, LLP, of Rosemont (Yvette A. Heintzelman and Roxana M. Underwood, of counsel), for other appellee.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 In this administrative review action, plaintiff-appellant, Steven Covello, seeks review of a final decision denying line-of-duty disability pension benefits entered by defendants-appellees, the Village of Schaumburg Firefighters' Pension Fund and the Board of Trustees of the Village of Schaumburg Firefighters' Pension Fund (collectively referred to as Pension Board). Covello applied for line-of-duty or, in the alternative, nonduty disability pension benefits claiming that he could no longer work as a firefighter for defendant-appellee, the Village of Schaumburg (Village), because he suffered from post-traumatic stress disorder (PTSD) triggered by a specific duty- related incident. The Pension Board found Covello permanently disabled and entitled to a nonduty disability pension based on his preexisting physical and psychological conditions, which included anxiety and depression. But because Covello failed to establish a causal connection between his disability and an act of duty, the Pension Board denied line-of-duty disability pension benefits. Covello sought review of the Pension Board's decision with the circuit court, and the circuit court affirmed.

¶ 2 Here, Covello claims the Pension Board applied the wrong standard in weighing the evidence because the standard is not whether an act of duty was the sole or primary cause of his disability but whether an act of duty was a contributing cause of his disability. Covello also claims that the Pension Board failed to rule on his motion requesting to modify the effective date of his disability pension before issuing its final written decision.

¶ 3 Finding no error, we affirm the Pension Board's award of nonduty disability benefits with an effective date of December 5, 2014.

¶ 4 BACKGROUND

¶ 5 On February 3, 1995, the Village hired Covello as a firefighter/paramedic in the Village's fire department. When Covello was hired, he passed a physical and psychological exam required by the Village. Before beginning his career as a firefighter with the Village, Covello had never received psychological or psychiatric treatment for any condition.

¶ 6 Beginning in October 2007 and throughout the remainder of Covello's career as a firefighter, Dr. Thomas Dennison, a psychiatrist, treated Covello for anxiety, depression, irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), hoarding, stuttering, and obsessive compulsive disorder. Dr. Dennison treated Covello's IBS, GERD, and stuttering conditions with medicine and also prescribed an antidepressant. Each of Covello's treatment sessions with Dr. Dennison lasted 15 minutes, which would include any necessary modifications to his medicine. Covello would generally see Dr. Dennison anywhere from once a month to once every three months depending on his level of stress and anxiety.

¶ 7 During the first five years of treatment, Covello did not discuss any issues involving work with Dr. Dennison, and he did not express any work-related anxiety. In fact, during a treatment session in 2009, Covello mentioned that his fellow firefighters were his major support system. During these sessions, Covello instead talked about various personal issues, including his relationship with his son, his broken engagement, his mother's death, as well as his hoarding tendencies, which grew worse over the years. Because of his numerous issues, Dr. Dennison had over the years recommended Covello see a counselor, but Covello failed to follow this advice.

¶ 8 Once under Dr. Dennison's care and as early as 2007, Covello took intermittent time off under the Family and Medical Leave Act of 1993 (FMLA) ( 29 U.S.C. § 2601 et seq. (2000) ) due to his anxiety issues. In 2008, Covello took FMLA days on January 1, January 29, February 7, March 20, August 2, and December 27.

¶ 9 Over his 18-year career as a firefighter, Covello responded to numerous calls involving gruesome injuries, and some of the victims that he attempted to save died. Generally, Covello did not know the victims personally. But on November 1, 2008, Covello responded to an "officer down" call that came in at around 11 p.m. involving Officer Frank Russo of the Village's police department. Because both Covello and Officer Russo worked for the Village, they got to know each other when they responded to the same calls, but they did not socialize outside of work. On November 1, when Covello arrived at the scene in the ambulance, he saw the other police officers standing around and not attempting to perform CPR on Officer Russo, which Covello found distressing. Covello was also upset that the fire department's engine did not arrive at the scene at the same time the ambulance crew did to assist with the call. Covello learned that Officer Russo suffered a heart attack while pursuing a fleeing suspect. As the paramedic-incharge, Covello performed CPR on Officer Russo but treating him was difficult because Officer Russo was a very large man, weighing about 300 pounds. Covello transported Officer Russo in the ambulance to the hospital where he was later pronounced dead. Covello completed the rest of his shift that day.

¶ 10 Four years later on January 13, 2013, while responding to what Covello mistakenly believed was an emergency call early in the morning, he rushed to put his boots on and strained himself pulling up his partially zipped boot. Covello heard a pop in his abdomen and knew something was wrong, but he could still function. Covello saw a doctor within a few days, who diagnosed him with a hernia in the umbilical region that required surgery. Covello's hernia was a preexisting condition that had bothered him off and on for many years, but that he had left untreated.

¶ 11 After receiving the hernia diagnosis, Covello called the deputy chief to inform him of his condition. Covello also informed the deputy chief of his other medical conditions (GERD, IBS, esophageal spasms ) but did not mention any work-related anxiety. The Village placed Covello on medical leave as of February 1, 2013. Covello did not return to work in any capacity after aggravating his hernia on January 13, 2013. Covello's doctors refused to perform hernia surgery until he completed an antibiotic treatment to clear up an infected skin condition and addressed his existing psychological issues. On May 3, 2013, the Village informed Covello that he had exhausted all 12 weeks of his available FMLA time and provided him with the following options: (1) resign due to his inability to return to work, (2) request a non-FMLA leave of absence, or (3) apply for a disability pension with the Pension Board. The Village also informed Covello that if he did not communicate his decision by May 29, 2013, the Village would assume he was resigning his position and his employment would be terminated. Because he had exhausted all of his paid leave by early April 2013, Covello stopped receiving a salary from the Village at that time.

¶ 12 By June 2013, Covello's stuttering became more significant. A woman Covello dated briefly (from January 2013 to June 2013) noticed that his stuttering bothered him and she suggested to Covello that he should seek treatment from Dr. Donna Ripley, a clinical psychologist, who had treated her in the past. In June 2013, Covello began treatment with Dr. Ripley, who helped him work though his anxiety issues. Dr. Ripley diagnosed Covello with PTSD triggered by the incident involving Officer Russo.

¶ 13 Covello was eventually cleared for surgery and had his hernia repaired on October 30, 2013. On October 25, 2013, days before Covello's hernia surgery, he filed an application for line-of-duty disability pension benefits under the Firefighters' Pension Fund of the Illinois Pension Code (Pension Code) ( 40 ILCS 5/4-110 (West 2012) ). He alternatively applied for nonduty disability pension benefits ( 40 ILCS 5/4-111 (West 2012) ). On his disability application, Covello listed November 1, 2008, the date he responded to the call involving Officer Russo as his date of injury. Covello listed PTSD as the reason for his disability. The Village was allowed to intervene in the proceedings based on its status as Covello's employer and a fiduciary charged with the proper expenditure of pension funds.

¶ 14 Under the Pension Code, a firefighter is entitled to line-of-duty disability pension benefits if, "as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty ," the firefighter is found physically or mentally permanently disabled for service in the fire department. (Emphasis added.) 40 ILCS 5/4-110 (West 2012). A line-of-duty disability pension entitles a firefighter

"to a disability pension equal to the greater of (1) 65% of the monthly salary attached to the rank held by him or her in the fire department at the date he or she is removed from the municipality's fire department payroll or (2) the retirement pension that the firefighter would be eligible to receive if he or she retired (but not including any automatic annual increase in that retirement pension)." 40 ILCS 5/4-110 (West 2012).

A firefighter is considered "on duty" while on any...