Summers v. Retirement Board of the Policemen's Annunity & Benefit Fund

ILLINOIS OFFICIAL REPORTS
Appellate Court
Summers v. Retirement Board of the Policemen’s Annuity & Benefit Fund,
2013 IL App (1st) 121345
Appellate Court BRUCE SUMMERS, Plaintiff-Appellee, v. THE RETIREMENT
Caption BOARD OF THE POLICEMEN’S ANNUITY AND BENEFIT FUND
OF THE CITY OF CHICAGO, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-12-1345
Filed April 18, 2013
Held A police officer who delivered equipment and supplies to police facilities
(Note: This syllabus was properly awarded ordinary disability benefits rather than duty
constitutes no part of disability benefits by the retirement board for the back injury he suffered
the opinion of the court while handling a box during a delivery, since his job did not involve any
but has been prepared “special risks” and the injury did not occur in the performance of an “act
by the Reporter of of duty” for purposes of the Pension Code.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-35001; the
Review Hon. Michael B. Hyman, Judge, presiding.
Judgment Circuit court decision reversed; board decision affirmed.
Counsel on David R. Kugler, of David R. Kugler & Associates Ltd., of Chicago, for
Appeal appellant.
Ralph J. Licari, of Ralph J. Licari & Associates, Ltd., of Chicago, for
appellee.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff Bruce Summers, a police officer with the Chicago police department (CPD),
applied for disability benefits after he was injured while performing an assigned duty of
lifting and handling police supplies. Defendant Retirement Board of the Policemen’s Annuity
and Benefit Fund of the City of Chicago (the Board) conducted an evidentiary hearing
regarding the application. The Board determined that Summers was disabled but denied duty
disability benefits and instead awarded ordinary disability benefits at 50% of his salary.
Summers filed a petition for administrative review. The circuit court of Cook county
reversed the Board’s order and awarded Summers duty disability benefits at 75% of his
salary. The Board filed this appeal.
¶2 For the reasons stated herein, we reverse the ruling of the circuit court and affirm the
decision of the Board.
¶3 BACKGROUND
¶4 The Board conducted an evidentiary hearing on August 25, 2011, regarding Summers’
disability benefits application. During the hearing, Summers testified he became a police
officer in 1993 and worked for the CPD equipment and supply section beginning in 2006.
Summers’ job responsibilities included loading and unloading a box truck and making
deliveries of equipment and supplies to police facilities. Summers testified that “we were
delivering equipment and supplies of up to two to three hundred boxes per day and the boxes
were weighing on average between 75 and 100 pounds per box.” Summers stated that the
“truck crew” made deliveries and pickups in accordance with schedule provided by his
supervisor. While performing his duties, Summers wore a firearm and was in uniform. He
drove a blue and white police truck with “Chicago Police” written on its sides.
¶5 On May 5, 2010, a box fell out of Summers’ hands as he was lifting it in the truck to
hand it to his partner who was on the ground placing the items in a cart. Summers testified
that his arm “went kind of dead, and [he] felt something in between [his] neck and [his]
shoulder. [He] was in immediate pain.” This incident occurred the day before a month-long
scheduled furlough. After taking the furlough, Summers went to the CPD medical section
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on approximately June 21, 2010. On August 21, 2010, Summers had an MRI that showed
degenerative disk changes and an “extruded fracture on the right side.” Summers later
“received a three (3) level fusion, anterior diskectomy [sic] at C3-C4, C4-C5, and C5-C6.”
¶6 Peter Orris, M.D., the Board’s consulting physician, testified that he reviewed Summers’
medical file, including the MRI report. According to Dr. Orris’ testimony, the MRI showed
findings described as degenerative changes in the neck area. Dr. Orris stated that “[b]ased
on the history, the medical records here, it would appear likely that some of those
degenerative changes predated the May accident and that the May accident was the straw that
broke the camel’s back with respect to this situation.” Dr. Orris acknowledged that most
people suffer from degenerative disk disease as part of the aging process, but testified that
“[t]his is a much more substantial disease in this area than you would expect in somebody
of his age and his conditioning, et cetera.”
¶7 On September 15, 2011, after reviewing the testimony of Summers and Orris, as well as
medical reports included in the record, the Board entered an order including its findings of
fact and conclusions of law. The order provided, among other things, that: (i) Summers was
disabled; (ii) “Summers, while on duty and performing assigned tasks of delivery supplies,
equipment, furniture, radios, etc. to police facilities, was not in the performance of an ‘Act
of Duty’ *** as such is defined in the Act”; and (iii) accordingly, Summers’ application
seeking duty disability benefits was denied and he was awarded ordinary disability benefits.
The Board specifically stated that the “Board having found Summers disabled, not as the
result of an ‘Act of Duty’ benefit, does not need to and does not address any medical issue
as to what if any impact Summers’ pre-existing condition may have on his current disability.”
¶8 Summers filed a petition for administrative review. The circuit court entered an order on
April 12, 2012 finding the “Board’s decision in denying Petitioner duty disability benefits
was clearly erroneous.” The court reversed the Board’s decision and awarded Summers duty
disability benefits at 75%. The circuit court’s order provides that the Board “has waived its
right to address the issue of pre-existing medical injuries in its brief.” The Board filed this
appeal.
¶9 ANALYSIS
¶ 10 The Board contends on appeal that Summers was injured while on duty, but his injury
was not the result of an “act of duty” as defined in section 5-113 of the Illinois Pension Code
(the Code). 40 ILCS 5/5-113 (West 2010). Only an injury that was incurred in the
performance of an act of duty could entitle Summers to “duty” disability at an amount equal
to 75% of his salary. See 40 ILCS 5/5-154 (West 2010). If Summers became disabled as the
result of any cause other than an injury incurred in the performance of an act of duty, he
would be entitled to “ordinary” disability at an amount equal to 50% of his salary. See 40
ILCS 5/5-155 (West 2010). The Board asserts that its decision that Summers’ injury was not
the result of an act of duty was not clearly erroneous and thus the circuit court should not
have reversed.
¶ 11 The Board also contends that it never reached the “issues pertaining to pre-existing
conditions” relevant to determining whether Summers would be entitled to duty disability
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benefits at the 75% level or at a reduced 50% level, pursuant to section 5-154(a)(i) (40 ILCS
5/5-154(a)(i) (West 2010)). Thus, the Board asserts, the circuit court’s “decision
affirmatively granting duty disability benefits” was beyond the court’s subject matter
jurisdiction and “should be treated as void.”
¶ 12 Standard of Review
¶ 13 The first issue is whether Summers became disabled as the result of an injury incurred
in the performance of an “act of duty.” Illinois courts addressing this issue have applied
varying standards of review. Some courts have considered this issue a mixed question of law
and fact and have applied a “clearly erroneous” standard. See, e.g., Merlo v. Orland Hills
Police Pension Board, 383 Ill. App. 3d 97, 100 (2008). In cases where the facts are
undisputed and the sole issue is the meaning of “act of duty,” other courts have applied a de
novo standard of review. See, e.g., Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 836-37
(2008); Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595, 598 (2004). Some
courts have even considered this question to be an issue of fact, requiring application of a
“manifest weight of the evidence” standard. See, e.g., Mingus v. Board of Trustees of the
Police Pension Fund, 2011 IL App (3d) 110098, ¶ 11.
¶ 14 The facts here are undisputed. Because this appeal requires us to interpret the language
of the “act of duty” statute, we apply a de novo standard of review to the Board’s decision.
Sarkis, 378 Ill. App. 3d at 836-37. However, we would reach the same conclusion in this case
regardless of the applicable standard of review.
¶ 15 Appellate review of the decision of an administrative agency is of the agency’s decision
and not the decision of the circuit court. Thompson v. Retirement Board of the Policemen’s
Annuity & Benefit Fund, 379 Ill. App. 3d 498, 503 (2008).
¶ 16 Illinois Pension Code Provisions
¶ 17 “Act of duty” is defined in section 5-113 of the Code as follows:
“Any act of police duty inherently involving special risk, not ordinarily assumed by a
citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State
or by the ordinances or police regulations of the city in which this Article is in effect or
by a special assignment; or any act of heroism performed in the city having for its direct
purpose the saving of the life or property of a person other than the policeman.” 40 ILCS
5/5-113 (West 2010).
¶ 18 Section 5-154 of the Code–addressing “duty disability benefit”–provides, in part, as
follows:
“An active policeman who becomes disabled on or after the effective date as the result
of injury incurred on or after such date in the performance of an act of duty, has a right
to receive duty disability benefit during any period of such disability for which he does
not have a right to receive salary, equal to 75% of his salary, as salary is defined in this
Article, at the time the disability is allowed; *** provided, however, that:
(i) If the disability resulted from any physical defect or mental disorder or any
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disease which existed at the time the injury was sustained, or if the disability is less
than 50% of the total disability for any service of a remunerative character, the duty
disability benefit shall be 50% of salary as defined in this Article.” 40 ILCS 5/5-154
(West 2010).
Section 5-154 thus provides for a “duty disability benefit” equal to 75% of salary when a
policeman becomes disabled in the performance of an “act of duty.” However, “the officer
will be given a duty disability pension of 50% of his salary if the disability ‘resulted from’
the preexisting condition, notwithstanding the effect the on-duty injury may have had on the
preexisting condition.” Samuels v. Retirement Board of the Policemen’s Annuity & Benefit
Fund, 289 Ill. App. 3d 651, 662 (1997).
¶ 19 Section 5-155 of the Code–addressing “ordinary disability benefit”–provides, in part, as
follows:
“A policeman less than age 63 who becomes disabled after the effective date as the result
of any cause other than an 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 ***.
***
Ordinary disability benefit shall be 50% of the policeman’s salary, as salary is defined
in this Article, at the time the disability occurs.” 40 ILCS 5/5-155 (West 2010).
Section 5-155 provides that, absent disability resulting from injury in the performance of an
act of duty, an officer receives ordinary benefits equal to 50% of the officer’s salary.1
¶ 20 The Board awarded ordinary disability benefits at 50% of Summers’ salary. The circuit
court reversed and ordered duty disability benefits at a 75% level. The threshold issue we
consider is whether the Board erred in its decision to award Summers ordinary disability
benefits at a 50% level. Such inquiry turns on the question of whether Summers sustained
his injury in the performance of an act of duty.
¶ 21 Act of Duty
¶ 22 The Board’s position is that Summers’ injury was not incurred when he was engaged in
an act of duty. The Board contends that “[i]f Summers is entitled to duty disability benefits
just because he was doing his assigned job, then the definition provided by the Legislature
is a nullity and every injury suffered by an officer who was working when injured could,
1
A duty disability benefit is payable until the officer reaches age 63 or is retired by operation
of law. 40 ILCS 5/5-154(c) (West 2010). An ordinary disability benefit also ceases when the officer
reaches age 63 or retires. 40 ILCS 5/5-155 (West 2010). “However, in addition, section 5-155 further
provides that the payment of the ordinary disability benefit ‘shall not exceed, in the aggregate,
throughout the total service of the policeman, a period equal to one-fourth of the service rendered
to the city prior to the time he became disabled, not more than 5 years.” Cole v. Retirement Board
of the Policemen’s Annuity & Benefit Fund, 396 Ill. App. 3d 357, 368 (2009); see 40 ILCS 5/5-155
(West 2010).
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arguably, qualify for duty benefits.”
¶ 23 The Board posits that Summers was not “involved in any task involving special risk or
any activity unique to being a police officer and in fact was doing exactly what any delivery
truck driver does all day long every working day.” The Board also argues that the “record is
clear that there was no emergency involved, and in fact Summers expressly stated that he did
the same job every day according to a schedule.” Because Summers “was not involved in any
special risk situation or performing any function requiring his special attention over and
above the activities of a private citizen engaged in the same task,” the Board contends that
Summers is not entitled to duty disability benefits.
¶ 24 According to Summers, his assigned job “to deliver boxes of police equipment, furniture,
radios, and other supplies to police facilities in a clearly marked police vehicle” involved “an
element of special risk that citizens do not commonly perform.” He contends that “[t]here
is a reason only sworn police officers are assigned to the Equipment and Supply Section ***,
and that the officers assigned to the unit are in *** uniform and armed with a firearm.”
Arguing that there did not need to be an emergency or “inherently dangerous activities” for
Summers to obtain duty disability benefits, he asserts that his duties involved “special risk”
and that the Board cannot compare his duty as a police officer “to that of a UPS or FEDX
[sic] driver as the Board insultingly suggests.”
¶ 25 The seminal case interpreting “act of duty” is Johnson v. Retirement Board of the
Policemen’s Annuity & Benefit Fund, 114 Ill. 2d 518 (1986). In Johnson, the Illinois
Supreme Court considered whether an officer was entitled to duty disability benefits. While
at his assigned traffic control post, a citizen at the corner of the intersection called to the
officer for assistance regarding a traffic accident. Id. at 520. The officer suffered injuries
when he slipped on the wet pavement and fell as he crossed the intersection to investigate
and respond. Id.
¶ 26 The supreme court rejected the pension board’s argument that the term “special risk” in
the “act of duty” statute only encompasses “inherently dangerous” activities, finding such
interpretation to be “overly restrictive and unrealistic.” Id. at 522-23. The court stated that
“[p]olice officers assigned to duties that involve protection of the public discharge those
duties by performing acts which are similar to those involved in many civilian occupations,”
such as driving a car, walking up stairs or crossing a street. Id. at 521-22. The court noted
that “[w]hen a policeman is called upon to respond to a citizen, he must have his attention
and energies directed towards being prepared to deal with any eventuality.” Id. at 522. The
court further noted that, unlike any ordinary citizen, “the policeman has no option as to
whether to respond.” (Emphasis in original.) Id.
¶ 27 The Johnson court observed that section 5-154 of the Code, which confers the right to
duty disability benefits, does not require that an officer be injured by an act of duty. “Rather,
the duty disability is awarded when an officer is ‘disabled *** as the result of injury incurred
*** in the performance of an act of duty.’ ” (Emphasis in original.) Id. Observing that “[t]he
crux is the capacity in which the police officer is acting,” the court held that “the action of
the plaintiff in crossing the intersection to respond to a citizen’s call for assistance
constitute[d] an ‘act of duty’ as defined in the Illinois Pension Code.” Id. at 522-23.
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¶ 28 Three justices dissented in Johnson, filing two separate dissents. Id. at 523 (Ryan, J.,
dissenting, joined by Miller, J.); id. at 525 (Moran, J., dissenting, joined by Ryan, J.). In both
dissents, the justices disagreed with the majority’s conclusion that the officer was engaged
in an act of duty. Id. at 523 (Ryan, J., dissenting, joined by Miller, J.); id. at 526 (Moran, J.,
dissenting, joined by Ryan, J.). In one dissent, the justices took issue with “[t]he majority
seem[ing] to tie the ‘act of duty’ standard to the nature of the work to which the policeman
is assigned, and not to the nature of the work in which he was engaged when injured.” Id. at
524 (Ryan, J., dissenting, joined by Miller, J.). In the other dissent, the justices disagreed
with the majority’s “expansive” interpretation of “act of duty,” noting that the “plain
meaning of the statute limits this definition to include only those activities involving
extraordinary risks peculiar to the performance of police duties.” (Emphasis in original.) Id.
at 526 (Moran, J., dissenting, joined by Ryan, J.).
¶ 29 Following the guidance of the Johnson majority, courts have examined the capacity in
which the officer was acting while injured in making determinations regarding whether the
act was one “inherently involving special risk, not ordinarily assumed by a citizen in the
ordinary walks of life,” under section 5-113 (40 ILCS 5/5-113 (West 2010)). Courts have
concluded that an officer was disabled as a result of an injury incurred in the performance
of an act of duty under a number of circumstances. In Wagner v. Board of Trustees of the
Police Pension Fund, 208 Ill. App. 3d 25, 26 (1991),2 an officer injured his knee three times
over the course of six months: while escorting a resisting prisoner up a flight of stairs; when
a rotted porch plank gave way and his leg fell through while he was serving a notice to
appear; and twisting his leg while stepping into a culvert offset when responding to a
disturbance. The Wagner court ruled that the officer’s disability was duty-related, noting that
serving notices to appear is an act generally unique to police officers and that the officer’s
injury while responding to a disturbance was “closely analogous” to the fact situation in
Johnson. Id. at 29-30.
¶ 30 In Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595, 596 (2004), an officer
assigned to a police bicycle patrol unit experienced pain and swelling in his knee while
pedaling his bicycle; he had not fallen or had any other sort of accident. The appellate court
concluded that the officer was “performing in a capacity that amounted to an act of duty”
because, while on patrol, the officer “faced risks not ordinarily encountered by civilians.” Id.
at 601. Specifically, the officer was required to ride his bicycle at night over varying terrain,
while carrying a significant amount of additional gear; the risks also included “falls and
collisions as well as dangerous encounters with unsavory elements of society.” Id.
2
Different provisions of the Pension Code apply to police pensions funds for cities with a
population of less than 500,000–article III of the Pension Code–and cities with a population over
500,000–article V of the Pension Code. Compare 40 ILCS 5/5-154 (West 2010), with 40 ILCS 5/3-
114.1 (West 2010). However, our supreme court has stated that the “act of duty” definition contained
in article V of the Pension Code applies to the use of that term in article III. See Robbins v. Board
of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533, 540 (1997). Therefore, cases
involving pension funds in Illinois cities other than Chicago are instructive for purposes of our
analysis.
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¶ 31 In Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 834 (2008), an on-duty patrol
officer was dispatched to a railroad crossing at which the gates were malfunctioning. As the
officer lifted the gate with his hand, his foot slipped and the gate dropped on his shoulder.
Id. The pension board concluded that the officer’s injury did not occur in the performance
of an act of duty, noting that “ ‘non-sworn volunteers and ordinary citizens do frequently
hold up railroad gates.’ ” Id. at 835. The appellate court affirmed the circuit court’s reversal,
concluding that “physically raising a railroad crossing gate is not an act performed by an
ordinary person in his or her typical day, even in the unique circumstances of this case.” Id.
at 841.
¶ 32 In Merlo v. Orland Hills Police Pension Board, 383 Ill. App. 3d 97, 98 (2008), a patrol
officer injured his back when attempting to remove parking blocks after responding to a call
reporting juveniles stacking the blocks in a parking lot. The appellate court rejected the
pension board’s contention that the officer’s act did not involve any special risks because the
village public works department, a civilian office, had a duty to remove the parking blocks.
Id. at 102-03. The court noted that the employees of the public works department, unlike the
officer, “are not required to respond to a citizen’s call to confront mischievous juveniles or
immediately eliminate the resulting safety hazards to the general public.” Id. at 103.
¶ 33 In Jones v. Board of Trustees of the Police Pension Fund, 384 Ill. App. 3d 1064, 1065
(2008), a police officer driving a police van while on routine patrol was injured in a motor
vehicle accident. The pension board argued that the officer only encountered the “general risk
attendant to driving a car.” Id. at 1073. The appellate court disagreed, noting that “even if
driving a car involves only an ordinary risk, [the officer] was acting in a capacity that
involved special risk when he was injured–routine patrol.” Id.
¶ 34 In Rose v. Board of Trustees of the Mount Prospect Police Pension Fund, 2011 IL App
(1st) 102157, ¶ 1, an officer was injured in an automobile accident while on patrol and
driving in his squad car. The pension board argued that the officer’s injuries were not
incurred in the performance of an “act of duty.” Id. ¶ 64. The appellate court disagreed,
concluding that even if, as the pension board found, the petitioner had completed his
investigation of a missing juvenile, the officer “was nevertheless performing patrol duties,
which inherently involve special risks not ordinarily assumed by regular citizens in their
daily lives.” Id. ¶ 78.
¶ 35 In Mingus v. Board of Trustees of the Police Pension Fund, 2011 IL App (3d) 110098,
¶ 4, an officer was on patrol in his squad car when he encountered a vehicle that had gone
off the road. The officer was injured while pushing the vehicle out of a snowbank by hand
and back onto the roadway with the assistance of two civilians who had stopped to help. Id.
¶ 6. The pension board awarded a nonduty disability pension, finding that the officer’s
testimony was not credible regarding the safety hazard posed by the vehicle and the need for
immediate action as opposed to, for example, calling a tow truck. Id. ¶ 7. The appellate court
set aside the board’s ruling, concluding that, as opposed to an ordinary citizen, the police
officer was “required to stop and attend to the situation.” Id. ¶ 14.
¶ 36 In other cases, courts have found that an officer’s injuries were not incurred in the
performance of an act of duty. For example, in Olson v. City of Wheaton Police Pension
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Board, 153 Ill. App. 3d 595, 599 (1987), a police officer experienced migraine headaches,
which he testified were caused by job-related stress resulting from differences in
management style between him and his superior, the fact that charges were brought against
him and the fact that he was assigned as a patrol officer even though he had attained the rank
of sergeant. The appellate court concluded that “[w]e cannot say that plaintiff was disabled
while ‘he was engaged in activities related to his duty as a police officer to protect and serve
the public’ [citation],” noting that “[c]ivilians regularly suffer stress in their employment
resulting from conflicts with their superiors, complaints that are filed against them in
connection with their jobs, and the assignment of tasks which they deem unsuitable for their
position.” Id. at 599-600.
¶ 37 In Morgan v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 172 Ill. App.
3d 273 (1988), an officer on duty in a police station rose from his chair to hand items of
identification to a citizen who had entered the station to file a police report. When the officer
then attempted to sit down in the chair, the chair rolled away and the officer struck the chair
and/or floor with his head, neck and back. Id. The appellate court noted that “[u]nlike the
supreme court’s conclusion regarding the duties of a traffic patrolman, we cannot conclude
that there is no comparable civilian occupation to that of a policeman filling out a police
report.” Id. at 276. The court affirmed the denial of duty disability benefits, concluding that
“we cannot say that completing police reports, albeit a function peculiar to police officers,
inherently involves special risk not ordinarily assumed by a citizen in the ordinary walks of
life.” Id. at 276-77.
¶ 38 In White v. City of Aurora, 323 Ill. App. 3d 733, 734 (2001), an officer assigned to patrol
an area and instructed to write more parking citations was injured when he slipped exiting
his squad car to place a citation on an illegally parked vehicle. The appellate court concluded
that “writing a parking ticket and placing it on a windshield without the driver being present
is more like the clerical act at issue in Morgan than the responsive police action at issue in
Johnson.” Id. at 737. Further, the court noted that, unlike the officer in Johnson, this officer
was performing an act performed by non-police officers, i.e., placing a traffic citation on a
vehicle windshield. Id.
¶ 39 In Fedorski v. Board of Trustees of the Aurora Police Pension Fund, 375 Ill. App. 3d
371, 372 (2007), a police officer assigned to work as a plainclothes investigator was
functioning as a “street level” evidence technician on the day he was injured in an
automobile accident. As the officer and two investigators left a jail and headed toward the
police station where the officer was to complete tasks related to the investigation, the vehicle
in which he was traveling was struck from behind at a red light. Id. On appeal, the court
concluded that plaintiff was not performing an act of duty when he was injured. Id. at 375.
The court noted that “whether or not plaintiff was ‘performing the task of an evidence
technician’ when the accident occurred, he was not acting in a capacity that entailed any
special risk at that particular time.” Id. The court further noted that “[n]one of the cases hold
that the title of an officer’s duty assignment is determinative of the capacity in which he is
acting. Rather the cases illustrate that the proper focus is on the particular activities the
officer is engaged in when he or she is injured.” Id. at 375-76.
¶ 40 In Filskov v. Board of Trustees of the Northlake Police Pension Fund, 409 Ill. App. 3d
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66, 68 (2011), a police officer whose assigned duty was to patrol the streets looking for gang
activity walked with two other officers to his police vehicle to resume patrol. While standing
outside of the vehicle moving items from the rear seat, the officer was injured when one of
the other officers inadvertently put the car in drive and ran over his foot. Id. The appellate
court found that the pension board did not clearly err in finding that the incident did not
involve a special risk not ordinarily assumed by citizens in ordinary walks of life. Id. at 72.
The court found it relevant that the officer was not responding to a call and had yet to resume
patrol. Id. The court concluded that “[t]he capacity in which he was acting was that of a
passenger entering a motor vehicle, which is the same activities all passenger civilians do
everyday.” Id. at 73.
¶ 41 Although we recognize the general principle that pension statutes are to be liberally
construed in favor of the pensioner (Jones, 384 Ill. App. 3d at 1068), we cannot conclude
Summers was injured while performing an “act of duty.” Following the Johnson decision,
we focus on the capacity in which Officer Summers was acting rather than the precise
physical act that caused the injury, i.e., lifting a box. See Rose v. Board of Trustees of the
Mount Prospect Police Pension Fund, 2011 IL App (1st) 102157, ¶ 75. Summers contends
that delivering “special police equipment and supplies, in a police uniform, to police
facilities throughout the City of Chicago” represents a special risk not assumed by ordinary
citizens. Regardless of Summers’ characterization of the delivered items, it appears that the
capacity in which Summers was acting at the time of his injury was as a delivery person. In
his affidavit appended to his disability application, Summers described his work as follows:
“I load a truck on a daily basis and make deliveries of supplies, equipment, furniture, radios,
etc., to police facilities.” Unlike, for example, a patrol officer, Summers was acting in a
capacity that has a “clear counterpart in civilian life.” Alm, 352 Ill. App. 3d at 601.
¶ 42 Summers also contends that “[t]here is a reason only sworn police officers are assigned
to the Equipment and Supply Section, Unit 172, and that the officers assigned to the unit are
in *** uniform and armed with a firearm.” We find this argument to be somewhat circular;
essentially Summers’ contention is that his position is given to uniformed, armed officers and
therefore it involves a special risk because if it did not involve a special risk, the position
would not be given to uniformed, armed officers. Adoption of this position would render the
statute meaningless and compel a finding of act of duty for any uniformed officer performing
an act assigned by order of a superior.
¶ 43 Summers further argues that the Board failed to draw a distinction between “was the
officer injured merely when he was ‘on duty’ ” or “was he performing his assigned duties
when he was injured.” We do not agree that the fact that Summers was performing his
assigned duties is somehow dispositive. The fact that an officer was injured performing his
assigned duties does not necessarily indicate that he was injured during the performance of
an “act of duty.” See, e.g., White, 323 Ill. App. 3d at 736; Morgan, 172 Ill. App. 3d at 276.
¶ 44 In order for the Board to award duty disability benefits, the Pension Code requires Officer
Summers’ injury to have been incurred in the performance of an act of duty, inherently
involving “special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” 40
ILCS 5/5-113 (West 2010). In the cases discussed above wherein the court found an act of
duty, the officer was engaged in activity that involved the “protection of the public”
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(Johnson, 114 Ill. 2d at 521)–an activity not ordinarily performed by private citizens:
responding to a disturbance (Wagner); engaging in patrol duties (Alm, Merlo, Jones, and
Rose); and addressing public safety hazards (Merlo, Mingus, and Sarkis). Although the
Pension Code certainly does not limit the definition of “act of duty” to activities involving
the protection of public safety, we agree with the Board that the statutory definition did not
include moving police equipment and supplies.
¶ 45 Summers contends that his “situation is unique in that his job function is to deliver police
equipment and to deny him a disability benefit because his position is not what we see as a
traditional ‘police duty’ would make Officer Summers the only police officer in Chicago who
has no recourse if he is injured while performing his duty assignment because he is also
ineligible to file a claim for Worker’s Compensation benefits” under section 1 of the
Workers’ Compensation Act (820 ILCS 305/1 (West 2010)). First, we are unmoved by
Summers’ argument that he is ineligible for worker’s compensation benefits under the
applicable statutory scheme. Second, we note that the Board did award Summers a disability
benefit, albeit an “ordinary” as opposed to “duty” disability benefit. Third, it does not appear
that the Board denied his duty disability benefit application because his position was not a
“traditional” police duty. Instead, the Board’s conclusion was that Summers’ injury was not
in the performance of an “act of duty”–an activity involving special risks not ordinarily
assumed by citizens in ordinary walks of life.
¶ 46 Simply put, “not all police work involves special risks.” Fedorski, 375 Ill. App. 3d at
374. The Board found that Summers was not working in a capacity involving special risks
and therefore was not engaged in an “act of duty” at the time of his injury. For the reasons
stated herein, we agree.
¶ 47 Jurisdictional Issues
¶ 48 The Board contends that it “did not reach, and no court has subject matter jurisdiction to
make the initial findings of fact and conclusions of law dealing with, issues pertaining to pre-
existing conditions relevant to determining whether Summers would be entitled to benefits
at the 50% or 75% level.” In light of our conclusion that the Board did not err in awarding
Summers a 50% ordinary disability benefit, we need not consider the Board’s jurisdiction-
based argument.
¶ 49 CONCLUSION
¶ 50 In conclusion, Summers is not entitled to duty disability benefits because his disability
was not caused by injury incurred in the performance of an “act of duty” as defined by the
Pension Code. The decision of the Board is affirmed and the judgment of the circuit court
is reversed.
¶ 51 Circuit court decision reversed; board decision affirmed.
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