Frisby v. Vill. of Bolingbrook Firefighters' Pension Fund

2018 IL App (2d) 180218

121 N.E.3d 1030

428 Ill.Dec. 256

Bethany Foy FRISBY, Plaintiff-Appellee,

v.The VILLAGE OF BOLINGBROOK FIREFIGHTERS' PENSION FUND, the Board of Trustees of the Village of Bolingbrook Firefighters' Pension Fund, and the Village of Bolingbrook, Defendants-Appellants.

No. 2-18-0218

Appellate Court of Illinois, Second District.

Opinion filed December 31, 2018

Jeffrey A. Goodloe, of Puchalski Goodloe Marzullo, LLP, of Northbrook, for appellants Village of Bolingbrook Firefighters’ Pension Fund and Board of Trustees of the Village of Bolingbrook Firefighters’ Pension Fund.

Kenneth M. Florey and M. Neal Smith, of Robbins Schwartz Nicholas Lifton & Taylor, Ltd., of Bolingbrook, for other appellant.

Thomas W. Duda, of Palatine, for appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 After a disabling injury, plaintiff, Bethany Foy Frisby, a firefighter for defendant the Village of Bolingbrook (Village), applied for a line-of-duty disability pension or, alternatively, a not-on-duty pension. Defendant the Board of Trustees of the Village of Bolingbrook Firefighters' Pension Fund (Board) denied plaintiff's request for a line-of-duty pension but granted her request for a not-on-duty pension. Plaintiff sought review in the trial court, which found that she was entitled to line-of-duty benefits and reversed the Board's decision. Defendants, the Village of Bolingbrook Firefighters' Pension Fund, the Board, and the Village, appeal. For the following reasons, we reverse the trial court's judgment and confirm the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 The underlying facts are uncontested. Since 2006, plaintiff has been a full-time firefighter for the Village. Pursuant to the relevant collective bargaining agreement (CBA), plaintiff worked 24-hour shifts, followed by 48 hours off. Her workday began at 7 a.m. and ended the following day at 7 a.m.

¶ 4 On December 28, 2013, plaintiff drove her own vehicle to work and parked in the fire-station parking lot. She arrived at 6:40 a.m. Plaintiff kept her firefighter uniform at the fire station, as was allowed but not required, and she planned to change before commencing her shift. As plaintiff exited her vehicle, she slipped on black ice. Her left shoulder struck her vehicle's running board and the ground. Plaintiff immediately felt throbbing and pain in her shoulder, but she entered the station to prepare for her shift. While at work, plaintiff performed an ambulance check, installed gear lockers, and drove an ambulance on a fire call. Plaintiff felt pain in her left arm and told her partner, who then notified plaintiff's supervisor. The supervisor ordered plaintiff to go to the emergency room, and plaintiff left her shift to do so.

¶ 5 Ultimately, after a period of treatment, plaintiff applied for a line-of-duty disability pension or, alternatively, a not-on-duty pension. On June 21, 2016, and January 26, 2017, the Board held hearings on plaintiff's application. At the hearings, plaintiff presented evidence concerning her visits to various treatment providers, multiple doctors' opinions, and reports concerning surgery, therapy, and other treatments plaintiff received. We do not recount that evidence here, as it is now undisputed that (1) plaintiff injured her shoulder when she fell in the fire-station parking lot and (2) plaintiff is permanently disabled within the meaning of the Illinois Pension Code ( 40 ILCS 5/4-112 (West 2012) ).

¶ 6 Additional evidence plaintiff introduced at the hearings included her performance reviews, which routinely assessed her punctuality and praised her consistent habit of being early to work and ready to start her shift on time. Further, plaintiff introduced a February 2, 2015, email from the Village's Superintendent of Public Safety, Tom Ross, which was sent to all firefighters and summarized his reflections and observations from recent station visits, including: "If you're not early—you're late. I appreciate you looking out for each other at shift changes."

¶ 7 On January 26, 2017, the Board denied plaintiff's request for a line-of-duty pension (65% of her final salary) but granted her request for a not-on-duty pension (50% of her final salary) (id. § 4-111). On April 17, 2017, the Board issued its written decision, explaining that it found that plaintiff was not injured while performing an "act of duty," as that expression is defined in the Pension Code. Specifically, it found that, when she fell at 6:40 a.m., plaintiff was not yet on duty, as her shift did not commence until 7 a.m., and, further, that she was not performing an act for the direct purpose of saving the life or property of another. The Board also found that plaintiff was not on an assignment approved by the chief and related to fire protection of the Village, nor was she performing an act imposed by any Village ordinance or fire-department rule or regulation. "[Plaintiff] was merely getting out of her personal vehicle [20] minutes before her shift started when she slipped on a patch of ice and fell." The Board rejected plaintiff's argument that Ross's statement in his e-mail, "If you're not early—you're late," constituted a formal rule or regulation imposing a requirement that firefighters show up early for their shifts:

"First, it is axiomatic that if a person is not early or exactly on time for work then that person is late. The email does not impose a rule or regulation requiring a person to show up early, but rather encourages a person to be on time in accordance with the provision set forth in the CBA. Superintendent Ross cannot, through an email, unilaterally change the terms and conditions of the firefighters' employment as set forth in the CBA. Additionally, Superintendent Ross' email simply set forth his ‘take-aways’ or observations since becoming superintendent. The Pension Board notes that Superintendent Ross' email also states that firefighters ‘... enjoy your job—try to have a little fun at work.’ If the Pension Board accepts [plaintiff's] argument that the email is a rule or regulation of the Fire Department, then getting injured while trying to ‘have a little fun at work’ would constitute an ‘act of duty.’ Additionally, if the Pension Board accepts [plaintiff's] argument then countless off-duty activities preceding a firefighter's shift that resulted in injuries could potentially constitute ‘acts of duty’ for purposes of line[-]of[-]duty disability pension claims. The Pension Board rejects these expansive arguments."

¶ 8 Plaintiff sought administrative review in the trial court. On January 3, 2018, the court reversed the Board's decision. The court determined first that the sole issue presented was whether plaintiff's injury occurred while she was performing an "act of duty" under the fire department's rules and regulations. The court noted that "common sense dictates that in order to be ‘fully prepared, ready, and in uniform’ at the beginning of their shift, one would have to arrive to work, park a vehicle and walk into work prior to the beginning of the shift." (Emphasis in original.) The court concluded that "[t]here must be some reasonableness to the time for arriving to work in order to be fully prepared and report for work at 7:00 a.m.—a requirement of [plaintiff's] job." The court took issue with defendants' failure to agree that, if plaintiff's injury had occurred one minute prior to her shift, she would be entitled to line-of-duty benefits. "If [plaintiff] was required to be fully prepared, ready and in uniform to begin her shift promptly at 7:00 a.m., yet also allowed to keep her uniform at the fire station, [plaintiff] obviously had to arrive within a reasonable time prior to the beginning of her shift to avoid violating a department rule or regulation."

¶ 9 The court found that regular performance reviews evaluating plaintiff's attendance and punctuality could create rules or regulations within the meaning of the Pension Code, because they assessed her compliance with the fire department's express written rules and regulations. The court then explained that, while there is a dearth of case law on this specific issue concerning a firefighter's pension under the Pension Code, courts can look to the Illinois Workers' Compensation Act ( 820 ILCS 305/1 et seq . (West 2016) ) for aid in interpreting the Pension Code and that courts interpreting the Workers' Compensation Act "have consistently understood that employment contemplates not only the scheduled time working, but also a reasonable time before beginning and after concluding scheduled work hours." Thus, the court concluded, plaintiff was attempting to comply with rules and regulations that she be prepared to begin her shift promptly at 7 a.m. and, as there was no way to comply with that requirement other than to show up at work at a reasonable time to prepare, she was entitled to line-of-duty benefits.

¶ 10 On March 12, 2018, the court denied defendants' motion to reconsider. Defendants appeal.

¶ 11 II. ANALYSIS

¶ 12 A. Standard of Review

¶ 13 In an appeal for administrative review, we review the decision of the administrative agency, not the decision of the trial court, and only the record of the administrative proceedings. Lipscomb v. Housing Authority of County of Cook , 2015 IL App (1st) 142793, ¶¶ 11-16, 399 Ill.Dec. 148, 45 N.E.3d 1138. "The applicable standard of review, which determines the degree of deference given to the agency's decision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact." AFM Messenger Service, Inc. v. Department of Employment Security , 198 Ill. 2d 380, 390, 261 Ill.Dec. 302, 763 N.E.2d 272 (2001). Factual findings are reviewed under the manifest-weight-of-the-evidence standard, whereas purely legal questions demand de novo review. Lipscomb , 2015 IL App (1st) 142793, ¶ 16, 399 Ill.Dec. 148, 45 N.E.3d 1138. However, where an agency's decision involves a mixed question of law and fact, w...