Vill. of Roselle v. Bd. of Trs. of the Roselle Firefighters' Pension Fund

2021 IL App (2d) 200360

196 N.E.3d 1091

The VILLAGE OF ROSELLE, Plaintiff-Appellee,

v.The BOARD OF TRUSTEES OF the ROSELLE FIREFIGHTERS’ PENSION FUND and Ryan Case, Defendants-Appellants.

Nos. 2-20-0360 & 2-20-0717 cons.

Appellate Court of Illinois, Second District.

Opinion Filed December 28, 2021

Richard J. Reimer and Bryan L. Strand, of Reimer Dobrovolny & Labardi PC, of Hinsdale, for appellant Board of Trustees of the Roselle Firefighters’ Pension Fund.

Thomas W. Duda and Thomas E. Mazur, of Law Offices of Thomas W. Duda, of Palatine, for other appellant.

Karl R. Ottosen and Meganne Trela, of Ottosen DiNolfo Hasenbalg & Castaldo, Ltd., of Naperville, for appellee.

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

¶ 1 The defendant, the Board of Trustees of the Roselle Firefighters’ Pension Fund (Board), issued a decision finding that the defendant Ryan Case was entitled to receive a line-of-duty (duty) disability pension following a back injury he sustained while moving bottled water for a fire department event. The plaintiff, the Village of Roselle (Village), which had intervened in the Board proceedings, filed an administrative review action. The circuit court reversed the Board's decision. The Board and Case now appeal.¹ We reverse the circuit court and affirm the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 Case began working as a firefighter in December 2002. Over the next 13 years, he was employed at various times by the fire departments of Belvidere, Wauconda, Woodstock, and Cary. In June 2015, he was hired by the Village's fire department.

¶ 4 Case's documented back problems also began in 2002 and thus go back at least as far as his work as a firefighter. Medical records from 2006, 2008, 2009, and 2012 show doctor visits for low back pain. None of his complaints of pain was associated with any injury and all were treated solely with muscle relaxants. The 2009 visit included an X-ray; the doctor Case saw reported that Case's X-ray and physical examination showed a normal back with "excellent strength" in his arms and legs. The 2012 visit (to Dr. Haider, Case's primary care provider) included a complaint of pain with neck movement, but again there was no associated injury and the only treatment was muscle relaxants.

¶ 5 In 2013, Case missed nine days of work due to a work-related muscle strain in his lower back. To treat the strain, he took muscle relaxants and rested. A June 2013 e-mail from a doctor to his then-employer stated that Case had strained his left lower back but had responded fairly quickly to rest, and he was able to work out "without any residual." In 2014, Case applied to work with the Belvidere Fire Department. His application included a polygraph test, during which he said that he had had a 2013 work-related back injury.

¶ 6 Case was seen by Dr. Haider in April 2015 for tightness in his back and legs after a 90-minute train trip during which he had to sit in a cramped position. Dr. Haider prescribed muscle relaxants and recommended that he follow up with a specialist.

¶ 7 Case applied to work for the Village's fire department in 2015. At his May 13, 2015, preemployment physical examination, he gave certain responses that the Village asserts were false. Specifically, he stated that (1) he had never had a back injury and (2) he did not currently have any of the listed musculoskeletal problems, including back pain. At the Board hearing in this case, Case said that he answered truthfully because he was not having any back pain when the examination occurred.

¶ 8 In late May 2015, Case visited an emergency room for cramping in his legs and tightness in his back after a long bike ride. An MRI showed a mild central disk bulge at L5-S1 that did "not appear to cause significant encroachment on the thecal sac." No treatment other than muscle relaxants was prescribed, and the symptoms were gone by the next morning. On June 3, 2015, Case sought a physical therapy referral for lower back pain.

¶ 9 Case began working for the Village fire department on June 8, 2015. During his first month of work, Case was thrown onto an oxygen tank while assisting in the back of an ambulance. He sprained his shoulder, missing one day of work. His medical records from that day do not show any complaint of back pain. In August 2015, he visited Dr. Haider for back pain and was prescribed muscle relaxants. Case completed his one-year probationary period in June 2016.

¶ 10 On September 18, 2016, Case was on duty. The fire department was preparing for their annual open house, during which the fire station would be open to the public. The shift commander ordered Case and another firefighter to perform various tasks in preparation, including moving cases of bottled water from one side of the station to the other and then filling a cooler with the bottles. While filling the cooler, Case felt a pop and pain, and began having a hard time moving his legs. Paramedics were called, and Case was transported to a hospital emergency room. The MRI taken that day showed an acute right-side L5-S1 disk herniation compressing the S1 nerve root. Thereafter, Case began a course of treatment that included pain medications, physical therapy, cortisone shots, and eventual surgery to fuse his lumbar spine. He was permanently restricted to lifting less than 50 pounds and was unable to return to full duty as a firefighter/paramedic for the Village. He applied for a duty disability pension under section 4-110 of the Illinois Pension Code (Code) ( 40 ILCS 5/4-110 (West 2016) ).

¶ 11 Case was examined by three independent medical examiners (IMEs), who were provided with all of his medical records. The IMEs unanimously concluded that Case was disabled as a result of his September 2016 injury.

¶ 12 The Village successfully requested leave to intervene in the proceedings on Case's application. The Village provided the IMEs with additional information and asked each of them to revisit their opinions in light of the Village's contention that Case had lied in failing to disclose his preexisting back condition. All of the IMEs issued supplemental letters stating that their opinions had not changed. They noted that, although Case had experienced back pain before that injury, his May 2015 MRI did not show the degeneration present on the September 2016 MRI and there was no indication that, before the injury, he was experiencing the type of pain caused by the injury. Thus, regardless of whether Case had a preexisting back condition, it was not until the September 2016 injury that he became disabled.

¶ 13 The Board's hearing on the application took place in August 2018 and March 2019. In addition to its other arguments, the Village argued that the Board should deny Case's application because in his preemployment physical examination he had failed to disclose his previous back pain.

¶ 14 The Board issued a detailed decision finding that Case was disabled as a result of the September 2016 injury and that he met the requirements for a duty disability pension. As to the Village's argument regarding Case's untruthfulness during the preemployment physical examination, the Board agreed that, "[a]lthough the Applicant denies suffering prior back injuries or experiencing prior back pain, the record is replete with evidence to the contrary." It noted that the physician's assistant who conducted the examination testified that, if Case had disclosed any history of back problems, more documentation from Case's treating physician would have been requested before Case could have been cleared for duty as a firefighter. Nevertheless, the Board held that Case's untruthfulness did not change the requirements for a duty disability pension and was "not an issue to be adjudicated by the Board." Case had clearly proved both that he was disabled and that the September 2016 injury led to his disability. The Board noted that the identified act need not be the sole cause of the disability and that it was sufficient that the act aggravated or exacerbated a previous, nondisabling condition.

¶ 15 As to whether Case's activity of loading water bottles into a cooler was an "act of duty" as that term is used in the Code, the Board stated that it was "a close call." The Board noted that the statutory definition for the term "act of duty" includes, among other things, any act imposed "by the rules or regulations of its fire department." Id. § 6-110. Case had argued that, because helping with the inspection and maintenance of the station house was one of his job duties, his commander had ordered him to load the water into the cooler, and he could have been disciplined if he did not comply, he was performing an act imposed upon him by the rules and regulations of the fire department. The Board ultimately agreed and found that Case was entitled to a duty disability pension.

¶ 16 The Village sought administrative review in the circuit court. After reviewing the parties’ written submissions and hearing oral argument, the circuit court reversed the Board's decision. It held that Case's injury was not caused by an "act of duty" because Case was not "saving the life or property of another" when the injury occurred. It also held that the Board erred in determining that it had no statutory authority to deny Case's application on the basis of his untruthfulness in his preemployment physical examination.

¶ 17 Case moved for reconsideration, which the circuit court denied. He also sought to stay the trial court's order permitting the Village to recoup the benefits he had received, pending the outcome of his appeal. The court stayed that portion of its order permitting recoupment but allowed the Village to discontinue further pension payments during the pendency of these appeals.

¶ 18 II. ANALYSIS

¶ 19 In an administrative review case, the appellate court reviews the decision of the agency, not that of the trial court. Lindemulder v. Board of Trustees of the Naperville Firefighters’ Pension Fund , 408 Ill. App....