Frisby v. Village of Bolingbrook Firefighters' Pension Fund , 428 Ill. Dec. 256 ( 2018 )

2018 IL App (2d) 180218No. 2-18-0218
Opinion filed December 31, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
BETHANY FOY FRISBY, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
)
v. ) No. 17-MR-667
)
THE VILLAGE OF BOLINGBROOK )
FIREFIGHTERS’ PENSION FUND, THE )
BOARD OF TRUSTEES OF THE VILLAGE )
OF BOLINGBROOK FIREFIGHTERS’ )
PENSION FUND, and THE VILLAGE OF )
BOLINGBROOK, ) Honorable
) Paul M. Fullerton,
Defendants-Appellants. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Burke and Hudson concurred in the judgment and opinion.
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,
2018 IL App (2d) 180218appeal. 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
-2­
2018 IL App (2d) 180218fire-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, e­
mail 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
-3­
2018 IL App (2d) 180218show 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
-4­
2018 IL App (2d) 180218[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.
-5­
2018 IL App (2d) 180218Lipscomb v. Housing Authority of County of Cook, 2015 IL App (1st) 142793, ¶¶ 11-16. “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 (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. However, where an agency’s decision involves a mixed question of law
and fact, we will not reverse unless the decision is clearly erroneous, i.e., unless we are left with
a definite and firm conviction that a mistake has been committed. Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008). “Mixed questions of fact and
law are questions in which the historical facts are admitted or established, the rule of law is
undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another
way, whether the rule of law as applied to the established facts is or is not violated.” (Internal
quotation marks omitted.) Id.¶ 14 On appeal, the parties disagree on the appropriate standard of review and, indeed, both
cite cases supporting their respective positions. For example, urging us to apply the clearly-
erroneous standard, defendants cite Howe v. Retirement Board of the Fireman’s Annuity &
Benefit Fund, 2015 IL App (1st) 141350, ¶ 47, where the court applied that standard when the
facts were undisputed and the question was whether a firefighter’s injury resulted from an act of
duty. In contrast, however, plaintiff urges us to apply de novo review, citing Martin v. Board of
Trustees of the Police Pension Fund of the Village of Shiloh, 2017 IL App (5th) 160344, ¶ 12,
where the court applied that standard when the facts were undisputed and the issue was whether
a police officer was injured while performing an act of duty. The Martin court determined that
-6­
2018 IL App (2d) 180218the issue turned on the interpretation of “act of duty” under the Pension Code, a question of law
to be reviewed de novo.
¶ 15 Here, we believe that the clearly-erroneous standard applies. We note that, although the
facts might now be undisputed, they were not initially; the Board was tasked with considering
whether plaintiff’s injury occurred when she fell in the parking lot or when installing lockers or
performing other tasks during her shift. After weighing the evidence, the Board found that the
injury occurred when she fell in the parking lot at 6:40 a.m. That finding is now undisputed, and
the remaining question is whether those circumstances surrounding plaintiff’s injury satisfy the
statutory standard, i.e., whether the injury occurred during the performance of an “act of duty,”
as defined by the Pension Code, such that a line-of-duty pension is appropriate. In our view, this
is a “textbook” example of an issue warranting the clearly-erroneous standard. However, we
note that, although we apply the clearly-erroneous standard, our decision here does not hinge on
the standard of review, for we would also reverse the trial court and affirm the Board under the
de novo standard.
¶ 16 B. Line-of-Duty Pensions
¶ 17 As noted, we are asked to consider whether the Board correctly determined that
plaintiff’s fall in the parking lot prior to her shift did not warrant a line-of-duty pension. The
Pension Code provides that a firefighter is entitled to a line-of-duty pension if he or she is injured
and rendered disabled from performing an “act of duty.” 40 ILCS 5/4-110 (West 2012). The
Pension Code further defines an “act of duty” as follows:
“Any act imposed on an active fireman by the ordinances of the city, or by the
rules or regulations of its fire department, or any act performed by an active fireman
-7­
2018 IL App (2d) 180218while on duty, having for its direct purpose the saving of the life or property of another
person.” Id. § 6-110
¶ 18 Defendants argue that the Board correctly found that, when she fell in the parking lot,
plaintiff was not engaged in an act of duty as defined by the Pension Code. Defendants note that
plaintiff was not on duty, as defined by the Pension Code, 1 and that her shift did not start until 20
minutes after her accident. Further, defendants argue that no Village ordinances or fire-
department rules or regulations required plaintiff to arrive at the fire station 20 minutes prior to
her shift, drive her vehicle there, park in the station’s parking lot, or don her uniform at the
station. Defendants argue that the expectation that plaintiff be punctual for work, as reflected in
Ross’s colloquial e-mail or as assessed in her performance reviews, did not prescribe how she
must accomplish punctuality. Defendants note that plaintiff would have been just as punctual if
she had kept her uniform at home, obtained a ride to the fire station, and walked inside without
crossing the parking lot. Indeed, defendants argue, there are a myriad of discretionary decisions
that a firefighter might make prior to the start of his or her shift that might contribute to
attendance and punctuality, and interpreting “act of duty” as including those innumerable acts
among those “imposed” upon the firefighter would extend the definition too far. Defendants
also note that plaintiff was not engaged in any act having for its direct purpose the saving of
someone’s life or property. Her shift had not started, she was not on any assignment, and she
slipped when exiting her personal vehicle in the fire-station parking lot.
1
We note that a firefighter is considered “on duty” while “on any assignment approved
by the chief” even if away from the municipality, if the “assignment is related to the fire
protection service of the municipality.” 40 ILCS 5/4-110 (West 2012).
-8­
2018 IL App (2d) 180218¶ 19 Finally, defendants assert that the trial court erred when it relied on the Workers’
Compensation Act and the concept of “arising out of and in the course of employment” to insert
into the definition of “act of duty” a “reasonableness” element. Defendants argue that, even if
plaintiff’s fall is compensable under the Workers’ Compensation Act, the Pension Code
explicitly defines “act of duty” such that line-of-duty pension eligibility turns only on whether
plaintiff was injured performing acts imposed on and required of her, not whether her acts were
otherwise reasonable.
¶ 20 Plaintiff, in turn, asserts that the trial court correctly determined that her injury occurred
while she was performing the duty of being timely and prepared to begin work on or before 7
a.m., which was a requirement specifically prescribed by the CBA, her performance evaluations,
and Ross’s e-mail. Plaintiff argues that she was expected to be ready and in uniform by 7 a.m.,
which meant that she had to be at work some time before 7 a.m. in order to comply. Plaintiff
asserts that defendants are actually arguing that, “had the accident occurred three minutes or one
minute before” 7 a.m., plaintiff still would not have been engaged in an act of duty. Plaintiff
asserts that, because the assignment approved by her chief was to be at the fire station, in
uniform, at 7 a.m., “all duties required of her to comply with that assignment are also ‘on duty.’ ”
She asserts that this conclusion is not simply a reasonable inference but rather is directly
confirmed by Ross’s e-mail and her performance reviews. Plaintiff also notes that the Pension
Code provides that a firefighter can be considered on duty even when he or she is away from the
municipality, whereas, here, she was at the fire station when her injury occurred. In addition,
plaintiff asserts that, to constitute an act of duty, an act need not be dangerous and can be routine.
As to the element of discretion involved in a firefighter’s activities, plaintiff states:
-9­
2018 IL App (2d) 180218“Virtually any order or Standard Operating Guideline or other performance
requirement carries with it an element of discretion. Standard Operating
Policies/Guidelines do not contain the step by step manner of accomplishing the goal of
suppressing a fire, transporting a victim from his residence to the ambulance, ventilating
a roof, performing routine maintenance, getting in and out of each vehicle, complying
with mandatory physical fitness routines, or the other regular shift activities prescribed
for firefighting employees.”
¶ 21 Finally, plaintiff asserts that the trial court did not improperly rely on cases interpreting
the Workers’ Compensation Act; rather, it simply referenced those cases as supporting the
conclusion that it had already reached.
¶ 22 The Board’s decision that, when she fell and injured her shoulder, plaintiff was not
performing an “act of duty” as defined by the Pension Code was not clearly erroneous. First, we
note that, in our view, the allegedly “imposed” requirement of “punctuality” is a red herring.
Plaintiff was not injured because she was rushing or desperately trying to be punctual; indeed,
the evidence shows that she was 20 minutes early. Plaintiff’s reliance on the “punctuality”
requirement has led the parties to raise hypotheticals that simply confuse the issues here (e.g.,
what if she had been only one minute early, what if she had been two minutes late). Rather, in
our view, the pertinent facts are simple: plaintiff fell when she arrived at work before her
scheduled shift. “Punctuality” is not the point.
¶ 23 In any event, the Board’s decision was simply not clearly erroneous. Again, “act of duty”
is explicitly defined by the Pension Code. Plaintiff’s argument that she was injured while
performing an act of duty relates to the first portion of the definition, as she contends that she fell
while performing an act imposed upon her by Village ordinances or fire-department rules or
- 10 ­
2018 IL App (2d) 180218regulations. However, plaintiff’s argument essentially would require an interpretation that,
because the Village and the fire department require a firefighter to appear at work on time, any
act in the process of doing so constitutes an act of duty. The Board did not clearly err in
concluding that such an interpretation extends the definition too far. Indeed, not every act that
happens even at work, while on duty, constitutes an “act of duty” for purposes of eligibility for a
line-of-duty pension, as the last portion of the definition provides that an act of duty is one
performed while on duty and “having for its direct purpose the saving of the life or property of
another person.” Id. Here, plaintiff was not yet on duty, as her shift had not started, and no
Village ordinance or fire-department rule or regulation imposed upon plaintiff the act of exiting
her vehicle in the parking lot.
¶ 24 Although plaintiff cites numerous examples of other alleged acts of duty that require
discretion in their performance, she misses the point in that each of the acts she cites would occur
while the firefighter was performing a required task while on duty. Further, we disagree with
plaintiff’s assertion that “all duties required of her to comply” with the assignment to be ready to
start her shift at 7 a.m. must also be considered as having occurred while “on duty.” Such an
interpretation would extend the concepts of “on duty” and “act of duty” beyond their intended
scope. (Would this interpretation include injuries incurred from a fall while showering at home
before work? Would it include injuries incurred in a car accident on the way to work?) Indeed,
at oral argument, plaintiff seemed to agree that anything happening off of the fire station
premises would extend the statutory definition too far, but what if another fire station does not
have on-site parking and a fall happens on the street? Or what if plaintiff arrived not 20 minutes
early, but 50 minutes early? 2 We agree with defendants that, under the facts here, construing
2
These types of questions reinforce our view that our review should not be de novo but,
- 11 ­
2018 IL App (2d) 180218plaintiff’s injury as having happened while she was performing an act of duty would strain the
definition to an unworkable degree.
¶ 25 As to the parties’ argument concerning the propriety of the trial court’s reference to the
Workers’ Compensation Act in interpreting the Pension Code, we note that the scope of our
review is limited to the Board’s decision, not the trial court’s, and so we need not address the
argument.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, the judgment of the circuit court of Du Page County is reversed
and the Board’s decision is confirmed.
¶ 28 Reversed.
¶ 29 Board decision confirmed.
rather, that deference in the form of the clearly-erroneous standard of review must be given to
the Board’s interpretation of whether certain acts performed by a firefighter constitute acts of
duty as statutorily defined.
- 12 ­