McCumber v. Bd. of Trs. of the Oswego Fire Prot. Dist. Firefighters' Pension Fund

2019 IL App (2d) 180316

124 N.E.3d 1121

429 Ill.Dec. 611

Brian MCCUMBER, Plaintiff-Appellant,

v.The BOARD OF TRUSTEES OF the OSWEGO FIRE PROTECTION DISTRICT FIREFIGHTERS' PENSION FUND; Mark Floyd, Craig Evans, Mike Veseling, and John Cornish, in Their Official Capacities as Members of the Board of Trustees, Defendants-Appellees.

No. 2-18-0316

Appellate Court of Illinois, Second District.

Opinion filed March 8, 2019

Thomas S. Radja Jr., of Collins & Radja, of Naperville, for appellant.

Charles H. Atwell, of Atwell & Atwell Law Offices, of Aurora, for appellees.

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

¶ 1 Plaintiff, former firefighter Brian McCumber, sought a line-of-duty disability pension from defendant, the Board of Trustees of the Oswego Fire Protection District Firefighters' Pension Fund (Board), based upon a psychological condition that manifested symptoms during three separate training exercises. After a hearing, the Board denied plaintiff's request for a line-of-duty disability pension.

Although it agreed that plaintiff was disabled such that he was unable to perform full-service duties for the Oswego Fire Protection District (District), the Board concluded that plaintiff's disability was neither caused nor exacerbated by his employment as a firefighter. Instead, it found that the psychological symptoms plaintiff experienced during the training exercises were "pre-existing and/or caused by external non-work related stressors." On administrative review, the circuit court confirmed the Board's decision. Plaintiff appeals, arguing that the Board (1) failed to properly apply a "causative factor" analysis, (2) erred in denying him a line-of-duty disability pension, and (3) violated his substantive due process right to a fair and impartial hearing. For the reasons below, we affirm.

¶ 2 BACKGROUND

¶ 3 On September 2, 2009, plaintiff was hired as a full-time firefighter/paramedic for the District and was effectively installed as a member of the pension fund. Previously, plaintiff worked for the District for a number of years as a part-time contract firefighter/paramedic.

¶ 4 On November 30, 2015, plaintiff filed an application for disability benefits with the Board, seeking a line-of-duty disability pension pursuant to section 4-110 of the Illinois Pension Code (Pension Code) ( 40 ILCS 5/4-110 (West 2014) ). Plaintiff alleged a psychological disability, namely anxiety disorder, based on difficulties he experienced during three training exercises on October 29, 2014, March 19, 2015, and May 21, 2015.

¶ 5 The Board held a hearing on plaintiff's application on December 14, 2016. Plaintiff was the only witness to testify. The Board received into evidence numerous exhibits, including plaintiff's complete personnel and medical records, injury reports for the incidents identified on plaintiff's application, and medical reports prepared by three physicians selected by the Board to evaluate plaintiff.

¶ 6 Plaintiff's Testimony

¶ 7 Plaintiff testified at the hearing as follows. He passed a physical evaluation when he was hired as a full-time firefighter/paramedic, and the District did not find that he had any psychological problems at that time. Between 2010 and 2014, he was called upon to fight between 12 and 20 structure fires, and he did not have any issues with anxiety or hyperventilation during those calls. He also responded to calls for service, including fighting fires, when he worked part-time for the District. Likewise, he did not have any problems with anxiety or other psychological problems during that time.

¶ 8 On October 29, 2014, plaintiff was assigned to attend training, which consisted of live fire training evolutions. He was assigned to rescue a mannequin from the basement of a training tower and to respond as if it were an actual emergency. Plaintiff was dressed in full bunker gear, including a self-contained breathing apparatus (SCBA). During the training exercise, while he was pulling the "victim" up the stairs, plaintiff became disoriented, felt overexerted and lightheaded, and had difficulty breathing. He notified his lieutenant that he needed assistance pulling the "victim" up the stairs. A "mayday" call was issued, and the training drill was halted. He was taken by ambulance to a hospital and was treated and released that same day.

¶ 9 The injury report for this incident included written statements from two firefighters who observed plaintiff during the training exercise. One firefighter said that he and plaintiff were in the process of carrying the "victim" up the stairs but that plaintiff ceased his efforts with "two steps to go." The firefighter believed that plaintiff was "physically spent," and he told him that they would exit the building. As they approached the exit window, plaintiff "ripped his mask off" and stated that he was having trouble breathing. According to the injury report, the other witness firefighter stated that he first observed plaintiff as he was being helped to the exit window, at which point plaintiff "fell to a knee and pulled his mask from his face," even though he was "still in an [immediate-danger-to-life-and-health (IDLH) ] atmosphere at this time." This firefighter stated that plaintiff appeared "very exhausted and [was] experiencing a hard time catching his breath."

¶ 10 Plaintiff testified that, following this incident, he was advised to follow up with his primary-care physician, Dr. Brian A. Adrian, as well as the District's occupational doctor, Dr. Williamson-Link. Plaintiff missed several weeks of work following this incident, but he returned to work on December 10, 2014. He testified that he had not experienced shortness of breath or anxiety at work prior to this event.

¶ 11 On March 19, 2015, while engaged in another live-fire training exercise, plaintiff experienced similar difficulties. Plaintiff's assignment was search and rescue. During this training exercise, he and another firefighter rescued one "victim" from the structure and then reentered the structure and proceeded up the stairs to the second floor. Plaintiff told the other firefighter that he "was having a hard time catching [his] breath and that [he] was a little disoriented." Plaintiff then began to hyperventilate and "became kind of panicky." The training exercise was then stopped, and a "mayday" call was again initiated. Plaintiff was helped out of the structure and transported to the hospital, where he was given intravenous fluids and released that same day. He testified that the symptoms he experienced that day were more severe than the symptoms he had experienced during the October 29, 2014, training exercise.

¶ 12 The injury report for this incident noted that plaintiff began to stare at an interior wall and appeared to be looking for a way out. Plaintiff stated that he could not catch his breath, and he seemed disoriented. Plaintiff was assisted downstairs, and while he was on the first floor, plaintiff asked to remove his mask but other firefighters did not allow him to, due to the dangerous atmosphere.

¶ 13 Plaintiff was again referred by the District to Dr. Williamson-Link. Plaintiff missed some time from work following this incident, and he worked in a light-duty capacity when he returned.

¶ 14 On May 21, 2015, plaintiff reported to another live-fire training exercise so that he could be evaluated in order to return to work in a full capacity. He assumed that a supervisor had ordered him to attend the training, and he was nervous because a union representative had informed him that it "wasn't going to be good for [him]" if the training did not go well. As in the March 19 incident, plaintiff was assigned to search and rescue, and he wore full turnout gear, including an SCBA. During the training exercise, plaintiff and another firefighter found the "victim" inside the structure and pulled him out. Plaintiff was "a little disoriented" and, when they reentered the structure, plaintiff tripped on what he thought was a hose line and "caught" himself on a recliner. The other firefighter then said "[s]omething's not right. You don't look right." Another "mayday" was called, and plaintiff was again helped out of the structure and transported to the hospital. He did not return to work following this event.

¶ 15 According to the injury report for this incident, plaintiff was observed "having a coordination issue while removing the victim" and "walking with a stagger and unsteady gait." Plaintiff then "became very unsteady in his gait and collapsed face forward into a recliner chair." A firefighter then "grabbed [plaintiff] by the back of his SCBA and stood him up" before the "mayday" call was issued and plaintiff was helped out of the structure.

¶ 16 On cross-examination, plaintiff was questioned regarding an employee-injury report dated September 19, 2006, when he worked as a part-time firefighter for the District. According to the report, plaintiff was participating in rapid-intervention-team (RIT) training when he became overheated. Plaintiff explained at the hearing that, if a firefighter needs assistance or is "downed," the RIT team goes in to assist and/or remove the firefighter. Plaintiff agreed that this training exercise was similar to those in 2014 and 2015 during which he experienced difficulties. The report stated that, while plaintiff was in the process of removing a training mannequin from the structure, he "slumped over in an attempt to control his breathing. [Plaintiff] stated he was unable to continue with the scenario. [Plaintiff] was removed from the structure and evaluated by medical personnel." Plaintiff testified that he could not recall this incident, but he stated that there was no reason to believe that the report was inaccurate. According to the ambulance report related to this incident, plaintiff informed medical personnel that he felt lightheaded and had muscle cramping but that his symptoms were relieved after he exited the facility and drank some water....