Moreland v. Retirement Board of the Policemen's Annuity & Benefit Fund of Chicago , 2024 IL App (1st) 240049 ( 2024 )

2024 IL App (1st) 240049No. 1-24-0049
Opinion filed November 15, 2024
Fifth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
DONALD B. MORELAND, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 22 CH 12585
THE RETIREMENT BOARD OF THE POLICEMEN’S )
ANNUITY AND BENEFIT FUND OF THE CITY OF )
CHICAGO, ) Honorable
) Sophia H. Hall,
Defendant-Appellee. ) Judge Presiding.
JUSTICE NAVARRO delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Mitchell concurred in the judgment and opinion.
OPINION
¶1 The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago
(Board) denied the application of plaintiff, Donald B. Moreland, for duty disability benefits. On
administrative review, the circuit court affirmed the Board’s decision. Moreland now appeals that
judgment and contends that the Board’s decision to deny him disability benefits was in error.
Moreland argues that the Board’s decision placed him in an untenable catch-22 situation where he
is unable to work because his own employer, the Chicago Police Department, has determined he
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is disabled and will not assign him a position within the department yet he cannot obtain disability
benefits. For reasons that follow, we reverse the Board’s decision.
¶2 I. BACKGROUND
¶3 In 2013, Moreland became a Chicago police officer. On February 28, 2017, Moreland was
on duty and responding to a call of a person shot when his vehicle was involved in a traffic
accident, resulting in his vehicle hitting a parked vehicle and tree. As a result of the accident,
Moreland sustained various injuries, including to his lower back and left hip. Five years later,
Moreland applied for duty disability benefits due to the injuries he suffered to his back and left hip
because of the traffic accident. Moreland’s application proceeded to an October 2022 hearing.
¶4 A. The Hearing
¶5 At the hearing, the Board and Moreland entered numerous medical records into evidence.
Moreland also testified and discussed the February 28, 2017, vehicle accident that resulted in his
various back and left hip ailments. Immediately following the accident, Moreland experienced
back and left hip pain, but he hoped it would dissipate with time. Approximately six weeks after
the accident, Moreland went to the emergency room due to severe lower back pain. There, he was
diagnosed with sciatica on his right side and prescribed various medications. On April 10, 2017,
Moreland went on medical leave due to the back pain.
¶6 The following month, Moreland’s primary care physician, Dr. Robert Demke, evaluated
him and referred him to a chiropractor for physical therapy. Dr. Demke also recommended
Moreland receive a magnetic resonance imaging (MRI), but the imaging was not approved. In
early July 2017, following a course of physical therapy, Dr. Demke cleared Moreland for full,
unrestricted duty, and Moreland returned to such duty. The following month, Dr. Brian Clay, a
pain management specialist at the Illinois Bone and Joint Institute, evaluated Moreland due to his
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further complaints of low back and low extremity pain. Although Dr. Clay also recommended an
MRI, the imaging was again not approved. Dr. Clay advised Moreland to complete a home exercise
regimen. Moreland continued working full, unrestricted duty until early December 2020, when he
went on medical leave after contracting COVID-19. His COVID-19 medical leave lasted until
January 8, 2021.
¶7 The following day, Moreland continued to be on medical leave, but now due to recurring
issues with his back, specifically “really bad” back spasms. Later that month, Moreland returned
to Dr. Clay for the first time since 2017 complaining of lower back and lower extremity pain. Dr.
Clay recommended an MRI, more physical therapy, and remaining off-duty. In late January 2021,
Moreland underwent an MRI, which revealed multiple herniated discs and disc degeneration.
According to Dr. Clay, Moreland’s disc issues “appear[ed] to be clinically significant.” Based on
the MRI, Dr. Clay diagnosed Moreland with low back pain, lumbar radiculopathy, and lumbar disc
herniation. In light of these diagnoses, Dr. Clay referred Moreland to Dr. Steven Mardjetko, an
orthopedic surgeon at the Illinois Bone and Joint Institute. In February 2021, Moreland met with
Dr. Mardjetko, who advised Moreland to undergo an electromyography of his lower extremities
and to continue with physical therapy, which had been helpful to his symptoms.
¶8 Over the next two months, Moreland underwent additional imaging on his lower back,
including the electromyography, and left hip. The electromyography report indicated that
Moreland had evidence of mild chronic L5 radiculopathy on his right side. As for Moreland’s hip
issues, Dr. Ritesh Shah, a doctor at the Illinois Bone and Joint Institute, diagnosed him with left
hip impingement and a labral tear. Also, around this time, according to Moreland’s testimony, he
passed an annual prescribed firearm qualification certification with the Chicago Police
Department.
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¶9 In June 2021, Dr. Shane Nho, an orthopedic surgeon at Midwest Orthopaedics at Rush,
performed a hip arthroscopy and related procedures on Moreland’s left hip. During his recovery,
Dr. Mardjetko again evaluated Moreland’s low back issues, which were described in notes as
“significant pain.” Due to the chronic nature of Moreland’s back issues, Dr. Mardjetko
recommended that Moreland perform a functional capacity evaluation. Until that evaluation was
performed, Dr. Mardjetko considered Moreland “temporarily disabled.” According to Dr.
Mardjetko’s notes, the functional capacity evaluation would provide insight into the “kind of work
options” that would exist for Moreland. Moreland testified that he requested the functional
capacity evaluation, but his request was denied because he had already been deemed disabled by
Dr. Mardjetko. By October 2021, according to Dr. Nho’s medical notes, Moreland was progressing
well from the hip surgery, but he still recommended that Moreland continue physical therapy and
remain off-duty. During this month, Moreland exhausted his medical leave and began a personal
disability leave of absence that did not include pay.
¶ 10 In March 2022, Dr. Nho reevaluated Moreland and determined that he had reached
maximum medical improvement with respect to his left hip and approved his return to full,
unrestricted duty as it related to the left hip issues. However, Dr. Nho noted in his report that
Moreland continued to complain of low back pain and was seeing specialists for the issue. Two
months later, the Board’s appointed doctor, Dr. Jay Levin, performed an independent medical
examination of Moreland, specific to his lumbar spine and left hip issues, which included
evaluating Moreland in person and reviewing his medical records. In his report to the Board, Dr.
Levin concluded that Moreland could “work in a full unrestricted capacity regarding his lumbar
spine and left hip as it relates to the occurrence of February 28, 2017.” Specifically, Dr. Levin
found that Moreland could (1) safely carry, handle and use his firearm; (2) maintain an
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independent and stable gait without the assistance of external ambulatory supporting devices;
(3) safely drive a motor vehicle; and (4) safely effectuate the arrest of an arrestee who was actively
resisting arrest.
¶ 11 Also in May 2022, after Moreland had applied for temporary disability benefits, the Board
deferred the request in favor of a full hearing. In light of the deferral, Moreland’s attorney told him
to request reinstatement with the Chicago Police Department. Thereafter, Moreland applied for
reinstatement as a police officer. The following month, due to his back issues, Dr. Mardjetko
opined that: “Moreland is permanently disabled from activities of active police work and also
unable to safely carry and discharge a weapon.” Moreland testified that all his doctors
recommended against back surgery because it could potentially do more harm than good.
¶ 12 In July 2022, as part of Moreland’s reinstatement application, he underwent a physical
examination with Dr. Kristin Houseknecht, a physician with Concentra Medical Center. She
concluded that Moreland was not cleared for full, unrestricted duty because his treating physician,
Dr. Mardjetko, had opined that he was “permanently disabled.” Later that month, Sergeant Stanley
Williams, the commanding officer of the Chicago Police Department’s medical services section,
wrote to Robert Landowski, the director of the Chicago Police Department’s human resources
division, that the physical examination “disclosed that [Moreland] is NOT QUALIFIED to return
to duty without restrictions. Based on restrictions per treating physician, [Moreland] is not a
candidate for Limited Duty.” According to Moreland’s testimony, the restrictions placed on him
by his treating doctors did not qualify him for limited duty, and the Chicago Police Department
had not offered him a position in any capacity to return to work. Moreland testified that, had the
Chicago Police Department offered him “any” position to return, he would have accepted it.
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¶ 13 During the hearing, Moreland testified that he had an 11-month-old daughter and still
suffered from debilitating back spasms, which required him to lay on the ground to alleviate.
Moreland explained that, due to those spasms, there was “no chance that [he] could carry a gun.”
Moreland further testified that he was doing everything he could to return to work by following a
treatment plan from the Illinois Bone and Joint Institute. The only other testimony at the hearing
came from Dr. Peter Orris, who explained some of the procedures that Moreland underwent. Dr.
Orris did not give an opinion about whether Moreland was disabled. Following the testimony, the
Board held a closed meeting to deliberate. Subsequently, the Board voted 6 to 0 to deny Moreland
duty disability benefits and ordinary disability benefits.
¶ 14 B. The Written Decision and Order
¶ 15 In the Board’s written decision and order, it detailed the evidence and testimony from the
hearing, including Moreland’s lengthy medical history following his February 28, 2017, vehicle
accident. In particular, the Board observed that, following the independent medical examination
of Moreland, Dr. Levin concluded that Moreland could safely carry, handle, and use his firearm
as well as other official functions. In turn, the Board noted Dr. Levin’s opinion that Moreland
could work in a full, unrestricted capacity. The Board further observed that Dr. Mardjetko,
Moreland’s treating physician, concluded that Moreland could not safely carry, handle, and use
his firearm and, ultimately, opined that Moreland was permanently disabled from active police
duties. However, the Board asserted that nothing in the record demonstrated Dr. Mardjetko was
aware that Moreland passed an annual prescribed firearm qualification certification with the
Chicago Police Department in 2021 when Dr. Mardjetko rendered his opinion regarding
Moreland’s permanent disability.
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¶ 16 Although the Board highlighted that Dr. Mardjetko and Dr. Levin reached opposite
conclusions on Moreland’s ability related to his firearm and opposite opinions on his ability to
work in a full, unrestricted capacity, the Board placed a greater emphasis on the opinions and
conclusions of Dr. Levin, in part, due to Dr. Mardjetko’s apparent unawareness of Moreland’s
firearm certification. Additionally, the Board asserted that it “ha[d] the exclusive jurisdiction over
[Moreland’s] claim,” and based upon the evidence, it found that Moreland was “not disabled from
police service because he is capable of performing police duties in the Chicago Police
Department.” The Board added that “Any reference to the determination as to the City’s
assignment decisions in the Chicago Police Department does not overcome [the Board’s] exclusive
jurisdiction over this matter.” Consequently, the Board denied Moreland duty disability and
ordinary disability benefits.
¶ 17 C. Circuit Court Proceedings
¶ 18 In December 2022, Moreland filed a two-count complaint in the circuit court. Count I,
which he later voluntarily dismissed, was for a writ of mandamus compelling the Board to award
him disability benefits immediately. Count II was for administrative review of the Board’s decision
pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)). The Board
appeared and filed the administrative record in the case. Following briefing and oral argument, the
circuit court found that the Board’s decision to deny Moreland’s claim for disability benefits was
not against the manifest weight of the evidence and affirmed the Board’s decision.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Moreland contends that the Board erred in denying him duty disability and ordinary
disability benefits. He argues that the Board’s decision placed him in an untenable catch-22
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situation where he is unable to work because his own employer, the Chicago Police Department,
has determined he is disabled and will not assign him a position within the department yet he
cannot obtain disability benefits.
¶ 22 Moreland sought duty disability benefits pursuant to article 5 of the Illinois Pension Code
(Code) (40 ILCS 5/5-101 et seq. (West 2022)). Article 5 of the Code governs the policemen’s
annuity and benefit fund for cities with a population over 500,000 people, such as Chicago. The
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)) governs judicial review of
final administrative decisions of the Board. 40 ILCS 5/5-228 (West 2022). In administrative
review, we review the decision of the administrative body, here the Board, rather than that of the
circuit court. Medponics Illinois, LLC v. Department of Agriculture, 2021 IL 125443, ¶ 28.
¶ 23 The standard of review determines how much deference we afford the Board’s
determination. Id. ¶ 29. The standard of review depends on whether the issue on appeal is a
question of law, a question of fact, or a mixed question of law and fact. Id. Whether a claimant is
disabled within the meaning of the Code (see 40 ILCS 5/5-115 (West 2022)) is a question of fact.
Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago, 234 Ill.
2d 446, 464, 469-70 (2009). The Board’s “factual findings are prima facie true and correct and
will not be disturbed unless they are against the manifest weight of the evidence.” Chaudhary v.
Department of Human Services, 2023 IL 127712, ¶ 95. Factual findings will be deemed against
the manifest weight when the opposite conclusion is clearly evident. Id.¶ 24 In an administrative hearing, the claimant, here Moreland, has the burden of proof.
Kouzoukas, 234 Ill. 2d at 464. Under section 5-154(a) of the Code (40 ILCS 5/5-154(a) (West
2022)): “An active policeman who becomes disabled *** as the result of injury incurred *** in
the performance of an act of duty, has a right to receive duty disability benefit” generally at the
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rate of 75% of his or her salary. For ordinary disability benefits, “[a] policeman less than age 63
who becomes disabled *** as the result of any cause other than injury incurred in the performance
of an act of duty, shall receive ordinary disability benefit during any period or periods of disability
exceeding 30 days, for which he does not have a right to receive any part of his salary” at a rate of
50% of his salary. Id. § 5-155. The Code defines “[d]isability” as “[a] condition of physical or
mental incapacity to perform any assigned duty or duties in the police service.” Id. § 5-115. The
only issue in this case is whether the Board properly found that Moreland was not disabled.
¶ 25 It is undisputed that Dr. Levin, the Board’s appointed doctor, performed an independent
medical examination of Moreland and determined that Moreland could work full, unrestricted
duty. Relying on Dr. Levin’s determination, the Board argues that Moreland was ineligible to
receive disability benefits due to the requirement of section 5-156 of the Code (id. § 5-156), which
provides: “Proof of duty, occupational disease, or ordinary disability shall be furnished to the board
by at least one licensed and practicing physician appointed by the board.” No Illinois decision has
interpreted this portion of section 5-156. However, section 6-153 of the Code (40 ILCS 5/6-153
(West 2022)), which is a part of article 6 of the Code and governs the firemen’s annuity and benefit
fund for cities with a population over 500,000 people, has the same requirement and uses the same
language: “Proof of duty, occupational disease, or ordinary disability shall be furnished to the
Board by at least one licensed and practicing physician appointed by the Board.” Additionally,
both provisions were created through the same legislation. See 1963 Ill. Laws 228-29 (§ 5-156);
1963 Ill. Laws 270 (§ 6-153).
¶ 26 In Nowak v. Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 315
Ill. App. 3d 403, 410 (2000), the appellate court interpreted the relevant portion of section 6-153
of the Code and noted the case presented an issue of first impression. The court highlighted that
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the word “ ‘shall’ ” generally expressed the legislature’s intent for a mandatory reading. Id. at 411.
Given the legislature’s use of the word “shall” in section 6-153, the court concluded the plain
language of section 6-153 required “that, before granting a disability benefit, the [Retirement
Board of the Firemen’s Annuity and Benefit Fund of Chicago] must receive proof of the claimant’s
disability from at least one physician appointed by [it].” Id. at 411-12. Because the doctor
appointed by the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago “was
unable to conclude whether [the claimant-paramedic] was disabled,” the claimant “failed to meet
the requirement of section 6-153.” Id. at 407, 412. Therefore, the appellate court affirmed the
Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago’s decision to deny the
claimant duty disability benefits. Id. at 412.
¶ 27 Given the identical language of sections 5-156 and 6-153 of the Code, and their creation
through the same legislation (see 1963 Ill. Laws 228-29 (§ 5-156); 1963 Ill. Laws 270 (§ 6-153)),
section 5-156 should be interpreted in the same manner as section 6-153. See Robbins v. Board of
Trustees of the Carbondale Police Pension Fund of Carbondale, 177 Ill. 2d 533, 541 (1997) (“It
is fundamental that where a word or phrase is used in different sections of the same legislative act,
a court presumes that the word or phrase is used with the same meaning throughout the act, unless
a contrary legislative intent is clearly expressed.”). To this end, one federal court has found that,
under section 5-156, “the [C]ode requires ‘duty, occupational disease, or ordinary disability’ to be
proven by ‘at least one licensed and practicing physician appointed by the board.’ ” Taylor v.
Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago, No. 22-CV-6104, 2023
WL 6213797, at *2 (N.D. Ill. Sept. 25, 2023) (quoting 40 ILCS 5/5-156 (West 2022)).
¶ 28 If we were to interpret section 5-156 in the same manner that Nowak interpreted section 6-
153, we would have to conclude that the Board properly denied Moreland disability benefits. As
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previously discussed, Dr. Levin was the only doctor appointed by the Board in this case, and he
concluded that Moreland could “work in a full unrestricted capacity” despite his lumbar spine and
hip issues. In other words, Dr. Levin found that Moreland’s physical condition did not prevent him
from performing any assigned duties in the police service, and thus, he was not disabled within the
meaning of the Code. See 40 ILCS 5/5-115 (West 2022). However, given the specific facts of the
present case, construing section 5-156 in the same manner that Nowak interpreted section 6-153
would ignore our supreme court’s decision in Kouzoukas, 234 Ill. 2d 446, and a recent decision by
this court in Ohlicher v. Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago,
2024 IL App (1st) 231699-U.
¶ 29 In Kouzoukas, 234 Ill. 2d at 448-49, a former Chicago police officer injured her back
while on duty, and over the next year, she worked limited duty occasionally, but otherwise was on
medical leave. Her primary treating physician concluded that she had to limit her walking, sitting,
and standing to no more than 30 to 45 minutes at any given time and she could not wear her
gunbelt. Id. at 454. After applying for duty disability benefits, the Board held a hearing, where the
officer’s primary treating physician testified that she could not perform desk duty due to her back
issues. Id. at 455. The Board’s appointed doctor testified that he did not provide an opinion in his
report to the Board as to whether the officer could return to work because the officer’s disability
was not “clear cut.” Id. at 457. But the Board’s appointed doctor testified that it would not be
“ ‘prudent’ ” to have the officer return to full, unrestricted duty, though she could return to work
with specific restrictions. Id. The commanding officer of the Chicago Police Department’s medical
services section testified that there were various positions within the department that were
considered “restricted duty positions,” which could be assigned to officers needing
accommodations. Id. at 459. The commanding officer suggested a position that could
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accommodate the officer’s needs, but he acknowledged such a position had never been offered to
her. Id. at 460. Ultimately, the Board denied the officer duty disability benefits. Id. at 461.
¶ 30 On appeal to our supreme court, it initially concluded that many of the Board’s factual
findings—namely that the officer only experienced subjective pain and she could return to full,
unrestricted work—were against the manifest weight of the evidence. Id. at 465-68. In addition,
the court determined that the officer presented evidence that she could not perform “ ‘any assigned
duty.’ ” Id. at 470. Although the Board presented evidence there was a position within the Chicago
Police Department that “might” accommodate the officer’s restrictions, the Board did not present
any evidence that such a position was offered to her. Id. at 469. Given this, the court found “the
manifest weight of the evidence show[ed] that [the officer] carried her burden of proving that she
was disabled, that is, that she had a physical condition which made her incapable of performing
any assigned duty and that no position within her limitations was offered to her.” Id. at 470.
¶ 31 Still, the Board argued that the officer’s application for disability benefits could not depend
on the Chicago Police Department having an available position consistent with her restrictions
because, to hold as such, would encroach on the Board’s exclusive, original jurisdiction. Id. at 470-
71. In rejecting this argument, the court stated:
“The Board has the duty under the Code to determine whether a claimant is
disabled. In the case at bar, [the officer] presented evidence which established that
she had chronic back pain which severely limited her ability to sit, stand, walk,
drive, and wear a gunbelt. Moreover, because of these limitations, [the officer’s]
doctors did not provide her with a release to return to work. As a result, the Chicago
police department would not reassign [her] to any position. Under these
circumstances, [the officer] met her burden of proving that she was disabled. To
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hold otherwise would be to place [her] in an untenable ‘catch 22’ situation—unable
to work because the Chicago police department will not assign her to a position in
the police service which she can perform, yet unable to obtain disability benefits.”
(Emphasis in original.) Id. at 471.
Consequently, our supreme court held that the Board wrongly determined the officer had not met
her burden to prove she was disabled. Id. at 470-71.
¶ 32 In Ohlicher, 2024 IL App (1st) 231699-U, ¶ 8, based on an officer’s elbow injury, his
treating physician determined that he could return to work with sedentary, light duty but barred
him from using his firearm. After the officer applied for duty disability benefits, the Board’s
appointed doctor concluded that the officer could return to limited duty and he had the ability to
use a firearm. Id. ¶¶ 9-10. However, the Board’s appointed doctor would not conclude that the
officer could safely perform an arrest and did not conclude that he could return to full, unrestricted
duty. Id. ¶ 10. The officer applied for reinstatement twice, and both times, the Chicago Police
Department’s medical services section denied his application and determined he was not qualified
to return without restrictions and not a candidate for limited duty. Id. ¶¶ 11, 16. Still, the Board
denied him duty disability benefits, finding him capable of performing police duties. Id. ¶¶ 12, 15.
¶ 33 On appeal, this court observed that, although the officer’s treating physician and the
Board’s appointed doctor agreed the officer could perform limited duty work, the officer had
“presented uncontroverted evidence that he was never offered a limited duty position within the
[Chicago Police] Department.” Id. ¶¶ 22, 25. As a result of the officer’s restrictions and the
department’s failure to offer him a limited duty position, this court found the officer “was in a
catch-22 situation” like the officer in Kouzoukas. Id. ¶ 26. The court stated:
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“[The officer] was denied reinstatement as the [Chicago Police] Department
determined that his injury rendered him incapable of performing the duties of an
active police officer. The Board determined he was not disabled and was ineligible
to receive duty disability benefits because it found that his injury did not prevent
him from ‘performing sworn, limited police duties.’ ” Id.
This court concluded “where the medical evidence established that his line-of-duty injury
prevented him from performing duties of an active police officer and no evidence was presented
that he was offered a limited duty position within the Department,” the Board’s determination that
the officer was not disabled within the meaning of the Code was against the manifest weight of
the evidence. Id. ¶ 27. Notably, following the decision, the Board filed a petition for leave to appeal
to our supreme court, which was denied. See Ohlicher v. Retirement Board of the Policemen’s
Annuity & Benefit Fund of Chicago, No. 130914 (Ill. Sept. 25, 2024).
¶ 34 Kouzoukas and Ohlicher demonstrate how section 5-115 of the Code (40 ILCS 5/5-115
(West 2022)), which defines “[d]isability,” and section 5-156 of the Code (id. § 5-156), which
requires a Board-appointed doctor providing proof of a claimant’s disability to the Board, interact.
First, Kouzoukas and Ohlicher help define the word “[d]isability” in the Code. See id. § 5-115 (a
disability is “[a] condition of physical *** incapacity to perform any assigned duty or duties in the
police service”). Although the word “any” is not defined by the Code, Kouzoukas and Ohlicher
show that “any” means, in essence, “some.” See Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/any (last visited Nov. 4, 2024)
[https://perma.cc/44ZG-FQB6] (defining “any” as “a or some without reference to quantity or
extent”). In other words, an officer is disabled if they cannot perform unrestricted work and limited
duty work.
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¶ 35 For example, in both Kouzoukas and Ohlicher, the Board’s appointed doctors determined
that Chicago police officers could return to work with restrictions, i.e., perform limited duty work.
Kouzoukas, 234 Ill. 2d at 457; Ohlicher, 2024 IL App (1st) 231699-U, ¶ 10. Ordinarily, those
conclusions would mean that the officers were not disabled, because, despite their physical
condition, they could perform some duty or duties, if those duty or duties were assigned to the
officers. But, the evidence in both cases showed that the Chicago Police Department did not offer
the officers positions accommodating their restrictions. Kouzoukas, 234 Ill. 2d at 470-71; Ohlicher,
2024 IL App (1st) 231699-U, ¶ 22. Thus, despite the Board’s appointed doctors determining that
the officers could perform some duties under the appropriate circumstances, the officers were
nevertheless disabled within the meaning of the Code because no positions accommodating their
limitations had been offered to them. See Terrano v. Retirement Board of the Policemen’s Annuity
& Benefit Fund of Chicago, 315 Ill. App. 3d 270, 276 (2000) (“[I]t is a firm offer of a limited duty
position that could be performed by an individual with the applicant’s physical limitations that
renders the applicant not disabled within the meaning of the Code despite his inability to perform
the duties of an active police officer.”).
¶ 36 As our supreme court stated in Kouzoukas, 234 Ill. 2d at 471, to find an officer disabled
under such circumstances would place the officer “in an untenable ‘catch 22’ situation—unable to
work because the Chicago police department will not assign her to a position in the police service
which she can perform, yet unable to obtain disability benefits.” See also Ohlicher, 2024 IL App
(1st) 231699-U, ¶ 26 (discussing the “catch-22 situation”). Placing an officer in such an untenable
and unjust situation therefore precludes section 5-156 of the Code (40 ILCS 5/5-156 (West
2022))—requiring a Board-appointed doctor providing proof of a claimant’s disability to the
Board—from being applied as literally written. See Cassidy v. China Vitamins, LLC, 2018 IL
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122873, ¶ 17 (asserting that the “literal reading [of a statute] must fail if it yields absurd,
inconvenient, or unjust results”).
¶ 37 In the present case, the Board’s denial of Moreland’s application for disability benefits
placed him in the same catch-22 situation as the officers in Kouzoukas and Ohlicher, albeit under
different circumstances. No one disputes that Dr. Levin, the Board’s appointed doctor, concluded
that Moreland could return to full, unrestricted duty, which ordinarily would mean Moreland is
not disabled within the meaning of the Code. See 40 ILCS 5/5-115 (West 2022). Nevertheless,
upon Moreland’s application for reinstatement with the Chicago Police Department, the
department declined to offer him any position—either a full, unrestricted duty position or a limited
duty position. As such, Moreland’s physical condition rendered him unable to perform any
assigned duty or duties in the police service. See id. In turn, just like the officers in Kouzoukas and
Ohlicher, the Chicago Police Department’s denial of reinstatement renders Moreland unable to
work for the department yet unable to obtain disability benefits to compensate him for his inability
to work for the department. As a result, despite Dr. Levin’s conclusion, the Board’s finding that
Moreland was not disabled within the meaning of the Code was against the manifest weight of the
evidence, as the opposite conclusion is clearly evident based on the evidence. Given the evidence
presented by Moreland, he met his burden to prove he is disabled within the meaning of the Code.
Consequently, the Board’s decision to deny Moreland duty disability benefits based on him being
not disabled was erroneous.
¶ 38 We recognize the interpretation of section 6-153 in Nowak and the fundamental statutory
interpretation cannon “that where a word or phrase is used in different sections of the same
legislative act, a court presumes that the word or phrase is used with the same meaning throughout
the act, unless a contrary legislative intent is clearly expressed.” Robbins, 177 Ill. 2d at 541.
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However, in Nowak, the issue of reinstatement to a position that could accommodate the claimant’s
physical condition never arose. The issue of reinstatement did arise in dicta in Reed v. Retirement
Board of the Fireman’s Annuity & Benefit Fund of Chicago, 376 Ill. App. 3d 259, 269 (2007),
where a Chicago firefighter argued it was unfair for the Retirement Board of Fireman’s Annuity
and Benefit Fund of Chicago to deny him duty disability benefits when the Chicago Fire
Department found him unfit for duty and denied him reinstatement. Initially, the appellate court
found that the firefighter had forfeited review of this issue. Id. at 270. Nevertheless, relying on
Nowak, the court concluded that, had the issue been preserved, the firefighter would not have been
entitled to duty disability benefits because no Board-appointed physician had furnished proof that
he was disabled. Id. However, the appellate court decided Reed in 2007, two years before our
supreme court’s decision in Kouzoukas, and the reinstatement issue was dicta because the claimant
had forfeited administrative review of the issue. We cannot say how the Reed court would have
discussed section 6-153 and the claimant’s denial of reinstatement with the benefit of Kouzoukas
and its repudiation of the catch-22 situation, which, as discussed, precludes section 5-156 of the
Code (40 ILCS 5/5-156 (West 2022)) from being applied as literally written. See Cassidy, 2018
IL 122873, ¶ 17. But, to the extent the decisions are in conflict, Kouzoukas obviously takes
precedent.
¶ 39 Still, the Board argues making its disability benefits decisions contingent on the Chicago
Police Department’s work assignments encroaches on the exclusive, original jurisdiction of the
Board over disability benefits matters. See 40 ILCS 5/5-189 (West 2022) (providing that “[t]he
Board shall have exclusive original jurisdiction in all matters relating to or affecting the fund,
including, in addition to all other matters, all claims for annuities, pensions, benefits or refunds”).
But this exact argument was rejected in Kouzoukas, 234 Ill. 2d at 470-72, and Ohlicher, 2024 IL
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No. 1-24-0049
App (1st) 231699-U, ¶ 28. During oral argument, the Board also suggested that officers unhappy
with their placement in catch-22 situations could simply sue the Chicago Police Department to be
reinstated. However, in Buttitta v. City of Chicago, 9 F.3d 1198, 1205 (7th Cir. 1993), the Seventh
Circuit Court of Appeals found that, where the Chicago Police Department provides an inactive
officer a sufficient opportunity to demonstrate his or her fitness for active duty through a physical
examination and the Chicago Police Department does not find the officer fit for duty, the inactive
officer has no cause of action to be reinstated.
¶ 40 Given our conclusion that Moreland met his burden to prove that he is disabled within the
meaning of the Code, the order of the circuit court and the decision of the Board must be reversed.
See Ohlicher, 2024 IL App (1st) 231699-U, ¶ 30. Under the Code, to be entitled to duty disability
benefits, a claimant must prove (1) he or she was an active police officer, (2) who became disabled,
(3) as a result of an injury incurred in the performance of an act of duty. 40 ILCS 5/5-154(a) (West
2022). Because the Board only premised its denial of Moreland’s application for duty disability
benefits based on the disability element, which we have just concluded was against the manifest
weight of the evidence, Moreland is entitled to duty disability benefits. See Ohlicher, 2024 IL App
(1st) 231699-U, ¶ 30.
¶ 41 Additionally, as Moreland requests on appeal, he is entitled to court costs and litigation
expenses, including reasonable attorney fees, for prevailing in this administrative review action.
See 40 ILCS 5/5-228 (West 2022). To this end, we remand the matter to the circuit court to conduct
a hearing to determine the court costs and litigation expenses, including reasonable attorney fees,
to which Moreland is entitled pursuant to section 5-228 of the Code (id.). See Siwinski v.
Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 2019 IL App (1st) 180388,
¶ 36. We note that Moreland has also requested that he be awarded the cost of any medical
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No. 1-24-0049
insurance he incurred as a result of the Board denying him duty disability benefits. The court can
consider this request in conjunction with its hearing to determine the costs and expenses he is
entitled to statutorily. Further, upon remand to the circuit court, it shall order the Board to grant
Moreland’s application for duty disability benefits. See id. (upon remand to the circuit court to
conduct a hearing on court costs and litigation expenses owed to a claimant-fireman, directing the
court to also “enter an order remanding the matter to the [Retirement Board of the Firemen’s
Annuity and Benefit Fund of the City of Chicago] for an award of duty disability benefits”).
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we reverse the decision of the Board, reverse the judgment of
the circuit court of Cook County, and remand the matter to the circuit court with directions.
¶ 44 Board decision reversed and circuit court judgment reversed; cause remanded.
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No. 1-24-0049
Moreland v. Retirement Board of the Policemen’s Annuity & Benefit
Fund of Chicago, 2024 IL App (1st) 240049Decision Under Review: Appeal from the Circuit Court of Cook County, No. 22-CH-
12585; the Hon. Sophia H. Hall, Judge, presiding.
Attorneys Ralph J. Licari, of Ralph J. Licari & Associates, Ltd., of
for Northfield, for appellant.
Appellant:
Attorneys Sarah A. Boeckman and Vincent D. Pinelli, of Burke Burns &
for Pinelli, Ltd., of Chicago, for appellee.
Appellee:
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