Williams v. The Bd. Of Tr.S Of The Morton Grove Firefighters' Pension Fund

398 Ill.App.3d 680

924 N.E.2d 38

338 Ill.Dec. 178

Darren WILLIAMS, Plaintiff-Appellant,v.The BOARD OF TRUSTEES OF the MORTON GROVE FIREFIGHTERS' PENSION FUND, and the Village of Morton Grove, Defendants-Appellees.

No. 1-08-1212.

Appellate Court of Illinois First District, Second Division.

Feb. 2, 2010.

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Thomas S. Radja, Jr., Law Office of Thomas S. Radja, Jr., Ltd., Naperville, IL, for Plaintiff-Appellant.

Jill D. Leka, James J. Powers, Nicole K. Peracke, Seyfarth Shaw LLP, Chicago, IL, for Village of Morton Grove.

Carolyn Welch Clifford, Ottosen Britz Kelly Cooper & Gilbert, Ltd., Naperville, IL, for Board of Trustees.

Justice THEIS delivered the opinion of the court:

Plaintiff, Darren Williams, filed an application for a line-of-duty disability pension with defendant, the Board of Trustees of the Morton Grove Firefighters' Pension Fund (Board), pursuant to section 4-110 of the Illinois Pension Code (the Pension Code) (40 ILCS 5/4-110 (West 2006)). Plaintiff subsequently amended his application to include a claim for a not-in-duty disability pension pursuant to section 4-111 of the Pension Code. 40 ILCS 5/4-111 (West 2006). One day before the hearing on plaintiff's application, the Village of Morton Grove (Village) filed a petition to intervene in the hearing, which the Board granted. The hearing was conducted by the attorney for the Morton Grove Firefighters' Pension Fund (Fund). The Board voted to deny plaintiff a line-of-duty pension, but granted him a not-in-duty disability pension pursuant to section 4-111. 40 ILCS 5/4-111 (West 2006).

Thereafter, plaintiff filed a complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the Board's decision. Plaintiff filed this timely appeal in which he argues that: (1) the Board's denial of a line-of-duty pension was against the manifest weight of the evidence; (2) allowing the four village representatives to participate in the adjudication of his application after the Village intervened violated his right to due process; and (3) the Board abused its discretion when it permitted the Village to intervene in plaintiff's pension hearing. For the following reasons, we reverse the decision of the Board and remand with instructions.

BACKGROUND

Plaintiff received his probationary appointment to the fire department of Morton Grove (Department) on July 19, 1989, with his regular appointment following on August 27, 1991. Plaintiff held the position of firefighter/paramedic. Plaintiff testified at the administrative hearing that he injured his right shoulder on the morning of September 27, 2003, while responding to an ambulance call during which he transferred a patient from an ambulance cot to the hospital gurney at Lutheran General Hospital. On September 29, plaintiff reported his injury to Lieutenant Thomas Durment, who sent him to Advocate Occupational Health (Advocate) for treatment and generated paperwork to document the incident.

Plaintiff was treated at Advocate by Dr. S. Joseph Maurice, who conducted a physical examination and diagnosed plaintiff with a right acromioclavicular (AC) joint strain. Plaintiff also received physical therapy at Advocate on September 29. Dr. Maurice's records reflect that plaintiff had a follow-up visit on October 3, 2003, during which he informed Dr. Maurice that he had sought treatment from a private orthopedic surgeon and that he would discontinue his treatment at Advocate.

Dr. Steven Sclamberg (Dr. Sclamberg) testified that plaintiff was treated by his father, Dr. Edward Sclamberg, on October 1. He was diagnosed with a right shoulder AC joint sprain and injected with a steroid. Plaintiff had a follow-up visit with Dr. Edward Sclamberg on October 13, 2003. Plaintiff received a return-to-work slip stating that he could return to unrestricted active duty on October 14, 2003. Plaintiff testified that he returned to full, unrestricted duty on October 14.

Plaintiff was next examined by Dr. Sclamberg on February 24, 2004. Dr. Sclamberg took an X-ray of plaintiff's shoulder and injected it with a steroid. On March 9, 2004, plaintiff spoke on the telephone with Dr. Sclamberg and reported that he had not received any relief from the injection. As a result, Dr. Sclamberg scheduled surgery for later that month.

Dr. Sclamberg performed arthroscopic surgery on plaintiff's right shoulder during which he found, and repaired, a superior labrum anterior to posterior (SLAP) tear. He also found AC osteoarthritis, rotator cuff tendinitis and inflammation of the bursa. Plaintiff had a postsurgical follow-up visit with Dr. Sclamberg on May 11, 2004. During this visit, Dr. Sclamberg taught plaintiff three range-of-motion exercises to perform at home and prescribed continued physical therapy.

Plaintiff saw Dr. Sclamberg again on June 8, 2004. He recommended that plaintiff continue with his physical therapy. Plaintiff returned to Dr. Sclamberg on July 15, 2004. At this visit, plaintiff exhibited full strength in his right shoulder, with no tenderness or signs of impingement, but complained of pain on lifting. Dr. Sclamberg examined plaintiff again on August 10, 2004, ordered an X-ray and recommended that plaintiff continue with his physical therapy. Plaintiff next saw Dr. Sclamberg on August 19, 2004. During this visit, Dr. Sclamberg examined plaintiff and scheduled a second surgery on plaintiff's right shoulder for August 25, 2004.

During this second surgery, Dr. Sclamberg found and repaired a small rotator cuff tear and a SLAP tear. Plaintiff had his first postoperative visit with Dr. Sclamberg on October 7, 2004, and was told that he would be out of work for six weeks. Plaintiff had his second postoperative visit with Dr. Sclamberg on November 15, 2004, at which time he was cleared to return to light duty. Dr. Sclamberg next saw plaintiff on November 30, 2004, and ordered an MRI because plaintiff reported that he had felt a “pop” during physical therapy. Plaintiff next saw Dr. Sclamberg on December 2, 2004, at which time he ordered another MRI. Plaintiff returned to Dr. Sclamberg on January 6, 2005, and was diagnosed with adhesive capsulitis, commonly referred to as a “ frozen shoulder.”

Plaintiff filed an application for a line-of-duty disability pension, which he subsequently amended to add a claim for a not-in-duty disability pension. The Board held a hearing on plaintiff's pension application. Pursuant to section 4-121 of the Pension Code, as it existed in 2005, the Board consisted of three firefighters, the president of the Morton Grove Board of Trustees, the village clerk, the village corporate attorney, the village treasurer and the chief of the fire department. 40 ILCS 5/4-121 (West 2004).¹ The village mayor was also a member of the Board. The attorney for the Fund conducted the hearing.

The day before the first hearing session, the Village filed a petition to intervene in the hearing. Before hearing any evidence in this matter, the Board heard argument on the Village's written petition to intervene and plaintiff's opposition. The Village argued that the Board had the discretion to allow the Village to intervene and that to fail to do so in this case would be an abuse of discretion. The Village offered three reasons that it should be permitted to intervene. First, the Village had an interest in “ ensuring the proper expenditure of public funds by the pension board” and in making sure “those funds are expended appropriately only for those firefighters who are entitled to pension benefits.” Because the Village contributes money to the fund, it argued that it had “a very real interest” in the protection of the fund. Second, the Village argued that its interest in the potential award of health insurance benefits to plaintiff and his family under the Public Safety Employee Benefits Act (the Act) (820 ILCS 320/1 et seq. (West 2006)), supported its petition to intervene because the Village would be financially responsible if plaintiff received benefits under the Act. The Village explained, however, that it was not seeking to intervene “to advocate for or against PSEBA benefits for [plaintiff].” Finally, the Village asserted that it had an interest in developing a full evidentiary record on which the Board would base its decision. The Village stated that it would call witnesses to offer medical testimony regarding plaintiff's injury and alleged disability, cross-examine the witnesses, and obtain legible copies of certain documents and additional documents to supplement the exhibits prepared by the Board.

At the hearing, plaintiff argued that the Board had the discretion to permit the Village to intervene, but the Board must exercise its discretion with care. The Board would be abusing its discretion if it permitted the Village to intervene because the hearing would become an adversarial proceeding in which the Village's own employees and agents would be sitting on the Board to decide plaintiff's application for a pension. Plaintiff also argued that introducing the idea of plaintiff's entitlement to health insurance benefits under the Act was a violation of the exclusive purpose rule (40 ILCS 5/1-109 (West 2006)).

The Board voted 5 to 3 to grant the Village's petition to intervene and 6 to 2 to permit the Village to participate fully in the hearing. Plaintiff's counsel immediately made an oral request that the mayor, village corporate attorney, village clerk and village treasurer (but not the village fire chief) recuse themselves from participating in the hearing because once the Village was allowed to intervene, there was a per se conflict of interest for the Board members who were also Village officers. Plaintiff followed the oral motion with a written motion to recuse and the Village filed a response. The Fund's attorney instructed the Board that it could not grant or deny the motion to recuse, but rather each Board member who was subject to the...