Officer fights for proper pension
after on-bike injury leads to permanent disability
Ed.'s Note: In June 2003, IPMBA was
contacted by Scott Alm, a former officer with the Lincolnshire (IL) Police
Department. Scott completed the 32-hour IPMBA Police Cyclist course under
the instruction of PCI Tim McGurn, and subsequently was assigned to the bicycle
patrol unit. In June 2000, he was on bicycle duty, experienced knee pain,
and was diagnosed with a permanent disability preventing him from performing
his job as a police officer. This injury was deemed to be due to cycling
activity at work by four medical doctors, including the surgeon who performed
the four operations. The pension board reviewed the claim and ruled that
although the sustained injury did happen on duty, it was not "in the line
of duty." The pension board then denied line-of-duty benefits and instead
awarded non-duty benefits. The grounds for this decision were based on White
v. City of Aurora, in which an officer got out of his patrol car to write
a parking ticket, slipped, fell, and broke his back. He was not awarded
line-of-duty benefits.
Scott took the case to court and turned to IPMBA for information pertaining
to the risks of patrolling by bicycle; information was supplied by then-vice
president Kathleen Vonk. He lost the case but decided to appeal. In the Appellate
Court of Illinois, Second District, the court reversed the decision of the
earlier court and the Board, stating that Scott was entitled to line-of-duty
benefits. This decision changed case law on this topic and made the front
page of the Illinois Law Journal. The victory is bittersweet, however, because
the Police Pension Board has asked the appellate court to reconsider the
case, stating that, if necessary, they will take the case to the Illinois
Supreme Court.
This case has been financially draining for Scott, and he has not received
any assistance from the FOP. If you are aware of any source of funding that
may be available to him, please contact him at
almstr69@msn.com.
SCOTT ALM, Plaintiff-Appellant,
v.
THE LINCOLNSHIRE POLICE PENSION BOARD, Defendant-Appellee.
JUSTICE KAPALA delivered the opinion
of the court:
Plaintiff, Scott Alm, appeals from an order of the circuit court of Lake
County affirming the decision of defendant, the Lincolnshire Police Pension
Board (Board), denying plaintiff's application for line-of-duty disability
benefits, and instead awarding him nonduty benefits. Plaintiff contends that
the Board's decision is against the manifest weight of the evidence. We reverse.
On June 17, 2000, plaintiff was employed by the Village of Lincolnshire as
a sworn police officer and was assigned to the police department's bicycle
patrol unit. Plaintiff's shift was from 11 p.m. to 6:30 a.m. At the hearing
on his application, plaintiff testified that his job on the date in question
"was to do premise checks, check buildings in our industrial park, patrol
the parking lots of businesses that are open, the downtown area, and then
later on in the night head over to the residential area." The assignment
involved riding on a variety of terrain--up on curbs, through grass, and
behind buildings. Additionally, plaintiff carried approximately 20 pounds
of gear on his person and another 5 to 10 pounds in a police bag attached
to the back of the bicycle. As a member of the bicycle patrol unit, plaintiff
had performed such duties as making drug arrests, conducting traffic stops,
and issuing both parking tickets and tickets for moving violations. Plaintiff
also testified that during bike patrol training he was taught to stay on
his bicycle as much as possible because the bicycle gave him a mechanical
advantage over people on foot.
At about 2 a.m. on June 17, 2000, while pedaling his bicycle, plaintiff
experienced significant pain in his right knee and noticed swelling. He had
not fallen or had any other sort of accident. Plaintiff immediately sought
treatment and was ultimately diagnosed as suffering from, inter alia, a tear
in the medial meniscus of his right knee. Plaintiff underwent several surgical
procedures, but his condition restricted his ability to perform various physical
activities, such as running, kneeling, and crawling. Plaintiff had no prior
history of knee problems.
At the Board's request, plaintiff was examined by two physicians, Dr. David
M. Zoellick and Dr. Robert D. McMillan, whose reports were admitted into
evidence, along with the reports of other physicians who treated or examined
plaintiff. Dr. Zoellick indicated in his report that it was his impression
that plaintiff was injured at work in June 2000. Dr. McMillan's report states,
in pertinent part, as follows:
"As to the proximal [sic] proximate cause for the disability, it is unclear
to me whether there was any discreet [sic] injury or whether this was a
cumulative stress injury that may have occurred relating to his police work.
[Plaintiff] denies significant athletic activity prior to the onset of his
disability, and it seems that it was timed to his work, and was well documented
as such as outlined in the letter from [plaintiff's attorney].
My speculation as to the evolution of [plaintiff's] problem is that he started
with a torn cartilage that failed to improve probably because of the mild
varus alignment (bowleg) that he has naturally. This puts more weight on
the inner aspect of the knee."
Dr. McMillan also observed that records from plaintiff's third and fourth
operations indicated the presence of an abnormality that had not been mentioned
in earlier medical records. Dr. McMillan noted in his report:
"Not having seen initial MRIs or x-rays, I cannot date this abnormality,
but it does point to the possibility existing of a pre-existing condition,
were this present on his initial work up. This may have contributed to the
likelihood of abnormality evolving with his police work.
Nonetheless, it is clear that this man had an active and full physical life
prior to the immediate onset of his symptoms and as such, it seems that the
police activity certainly was the proximate cause for his abnormality."
In its written decision, the Board found that plaintiff was disabled, but
that he had not been injured in the performance of an act of duty. The Board
concluded that the manner in which plaintiff was pedaling his bicycle when
his knee began to hurt did not involve any special risk not shared by civilians.
The Board also noted Dr. McMillan's view that plaintiff's condition evolved
from a torn cartilage that failed to improve because of plaintiff's mild
varus alignment. Accordingly, the Board awarded plaintiff nonduty benefits.
The trial court affirmed the Board's decision, and this appeal followed.
The findings and conclusions of an administrative agency on questions of
fact are deemed prima facie true and correct and will not be disturbed on
review unless they are against the manifest weight of the evidence, meaning
that the opposite conclusion is clearly evident. Trettenero v. Police Pension
Fund, 333 Ill. App. 3d 792, 801 (2002). We review the decision of the agency,
not the judgment of the trial court. Du Page County Board of Review v. Department
of Revenue, 339 Ill. App. 3d 230, 235 (2003). Determinations regarding questions
of law are reviewed de novo. White v. City of Aurora, 323 Ill. App. 3d 733,
735 (2001). In White, because the facts were uncontroverted and the Board
of Trustees of the City of Aurora was charged only with interpreting the
meaning of the term "act of duty" found in section 3--114.1 of the Illinois
Pension Code (Code) (40 ILCS 5/3--114.1 (West 1998)), we decided that case
under a de novo standard of review. White, 323 Ill. App. 3d at 735. Likewise,
in the instant case, the facts are undisputed and the only issue before the
Board was the meaning of "act of duty." Accordingly, under White, we review
the Board's decision de novo.
At the time plaintiff became disabled, section 3--114.1 of the Code provided,
in pertinent part:
"If a police officer as the result of sickness, accident or injury incurred
in or resulting from the performance of an act of duty, is found to be physically
or mentally disabled for service in the police department, so as to render
necessary his or her suspension or retirement from the police service, the
police officer shall be entitled to a disability retirement pension of 65%
of the salary attached to the rank on the police force held by the officer
at the date of suspension of duty or retirement. A police officer shall be
considered 'on duty', while on any assignment approved by the chief of the
police department of the municipality he or she serves, whether the assignment
is within or outside the municipality." 40 ILCS 5/3--114.1 (West 1998).
The performance of an act of duty need not be the sole cause of the disability,
because, as this court has held, "section 3--114.1 does not bar the award
of a line-of-duty disability pension based upon the aggravation of a preexisting
physical condition." Olson v. City of Wheaton Police Pension Board, 153 Ill.
App. 3d 595, 598 (1987); see also Kellan v. Board of Trustees of the Firemen's
Pension Fund, 194 Ill. App. 3d 573, 582 (1990). Under section 3--114.2 of
the Code (40 ILCS 5/3--114.2 (West 1998)), a disabled officer is entitled
to a pension of 50% of the salary attached to the officer's rank if the
disability is the result of any cause other than the performance of an act
of duty.
For purposes of these provisions, the definition of "act of duty" set forth
in section 5--113 of the Code (40 ILCS 5/5--113 (West 1998)) applies. See
Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill.
2d 533, 540-41 (1997). As pertinent here, section 5--113 defines "act of
duty" as "[a]ny act of police duty inherently involving special risk, not
ordinarily assumed by a citizen in 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."
40 ILCS 5/5--113 (West 1998).
Our supreme court has expressly rejected the notion that the term "special
risk" encompasses only inherently dangerous activities. Johnson v. Retirement
Board of the Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518, 521
(1986). Johnson noted that officers discharging their duties to protect citizens
perform many tasks, such as driving automobiles, climbing stairs, and even
crossing streets, that are similar to those involved in civilian occupations.
Johnson, 114 Ill. 2d at 521-22. Johnson teaches that in determining whether
an officer is entitled to a line-of-duty benefit, "[t]he crux is the capacity
in which the police officer is acting" rather than the precise mechanism
of injury. Johnson, 114 Ill. 2d at 522. As such, an officer performing duties
involving special risks will be entitled to line-of-duty benefits even if
the immediate cause of injury is an act involving only an ordinary risk.
In Johnson, a police officer assigned to direct traffic was summoned by a
citizen requesting assistance regarding a traffic accident. While crossing
the street to respond, the officer slipped and suffered a disabling injury.
The Johnson court rejected the argument that the officer was not entitled
to line-of-duty benefits because crossing the street did not involve any
special risk:
"The provisions of [the Code] conferring the right to duty-disability benefits
do 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 added.)
[Citation.] In the plaintiff's case, the act of duty was the act of responding
to the call of a citizen for assistance. In performing that act, he was injured.
The defendant's interpretation envisions a police officer involved in a gun
battle, a high-speed car chase, or some other obviously dangerous situation
in order to qualify for duty-disability benefits. This is an overly restrictive
and unrealistic interpretation. If this court were to adopt the defendant's
narrow reading *** it could discourage police officers from the dedicated
and enthusiastic performance of their duties ***." Johnson, 114 Ill. 2d at
522-23.
Similarly, in Wagner v. Board of Trustees of the Police Pension Fund, 208
Ill. App. 3d 25 (1991), an injury that occurred when a rotted plank on a
porch gave way was held to be duty-related, where the officer was trying
to serve a notice to appear at the time his leg fell though the rotted plank.
The court noted that "[w]hile the act of walking across a porch is hardly
unique to police officers, serving notices to appear generally is." Wagner,
208 Ill. App. 3d at 29.
On the other hand, a line-of-duty benefit is not available if the disabling
condition is job-related stress associated with the general nature of police
work or with circumstances such as interpersonal conflicts and concern about
job performance, which are common in civilian workplaces. See, e.g., Robbins,
177 Ill. 2d at 542. Nor is a line-of-duty benefit available if the officer
is performing a function that civilians commonly perform. Thus, an officer
who became disabled when a chair rolled out from under him as he was filling
out a police report at his desk was not entitled to a line-of-duty pension.
Morgan v. Retirement Board of the Policemen's Annuity & Benefit Fund,
172 Ill. App. 3d 273, 276-77 (1988).
In White, an officer assigned to patrol duties slipped and suffered a disabling
injury when he exited his squad car to issue a parking ticket. A divided
panel of this court held that the officer was not entitled to line-of-duty
benefits. The majority compared an officer issuing a parking ticket to a
civilian placing a notice or flyer on a windshield, and also noted that Aurora
does, in fact, employ civilians to enforce traffic regulations. The majority
concluded that Morgan rather than Johnson was controlling:
"Unlike the case at bar, the police officer in Johnson was performing an
act that ordinary citizens are not obligated to perform; he was responding
to a citizen in need of assistance. This is an 'act of police duty inherently
involving special risk' because, 'unlike an ordinary citizen, the policeman
has no option as to whether to respond' (emphasis omitted) (Johnson, 114
Ill. 2d at 522). Unlike the officer in Johnson, in this case White exited
his car at his own discretion. White chose, at his own discretion, where
and when to stop his vehicle and how and when to exit it. It is not the mundane
nature of White's act that renders it ineligible for line of duty benefits
but the fact that it did not involve any special risk not ordinarily assumed
by ordinary citizens. Thus, White's actions were more like those of an ordinary
citizen and less like those of the officer in Johnson who had to respond
to a citizen's need for assistance whenever and wherever he was called. ***
We believe 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. Further, unlike the
officer in Johnson, White in this case was performing an act performed by
nonpolice officers, namely, placing a traffic citation on the windshield
of a vehicle." White, 323 Ill. App. 3d at 737.
The injury in the case before us is unlike those in the Johnson, Morgan,
Wagner, and White, in that it was not the result of any specific, identifiable,
physical trauma. Rather, the injury may have developed over the course of
time. In his report, Dr. McMillan suggested that plaintiff may have suffered
from a cumulative stress injury evolving from a cartilage tear that failed
to improve because of a natural misalignment of the knee. In its written
decision, the Board found that Dr. McMillan's theory of the injury was
"relevant." We take this to mean that the Board accepted Dr. McMillan's entire
report.
In its appellate brief, the Board raises the issue of causation. The Board's
brief states, "Dr. Robert McMillan[] indicated in his medical report that
it is unclear whether Alm suffered a discreet [sic] injury or whether his
knee condition evolved over a period of time because of the natural alignment
of his knees." The Board misapprehends Dr. McMillan's report. Although Dr.
McMillan believed that the disability may have evolved from a preexisting
condition, he also emphasized "that plaintiff had an active and full physical
life prior to the immediate onset of his symptoms and as such, it seems that
the police activity certainly was the proximate cause for his abnormality."
(Emphasis added.) Thus, Dr. McMillan's report clearly indicates that even
if plaintiff's disability could be traced to a preexisting condition, the
performance of plaintiff's bicycle patrol duties aggravated the condition
to the point that it was disabling. As noted, line-of-duty benefits are available
when the performance of an act of duty aggravates a preexisting injury. Moreover,
the Board's decision notes that the reports of Dr. Zoellick and plaintiff's
treating physician, Dr. Eugene P. Lopez, state that plaintiff was disabled
as a result of his work as a police officer. The only police work referenced
by the Board's decision is plaintiff's job as a bicycle patrol officer.
Plaintiff established that he incurred a disabling injury in the course of
pedaling his bicycle. The real question, therefore, is whether pedaling the
bicycle was an act of duty. Mindful of the principles discussed above, we
conclude that it was. While on patrol, plaintiff faced risks not ordinarily
encountered by civilians. He was required to ride his bicycle at night over
varying terrain, looking after his own personal safety while also remaining
vigilant in the performance of his patrol duties. Plaintiff was also carrying
a significant amount of additional weight. Under these conditions, risks
include falls and collisions as well as dangerous encounters with unsavory
elements of society. This particular duty has no clear counterpart in civilian
life. Therefore, we find that the bicycle patrol performed by plaintiff involved
special risk. Consequently, he was performing in a capacity that amounted
to an act of duty such that he was entitled to line of duty benefits.
The Board misses the point when it argues that plaintiff's act was simply
that of riding a bicycle. The characterization might be apt if one focused
narrowly on plaintiff's precise physical act at the moment of the injury.
But in Johnson, it could just as easily have been said that the officer's
act was simply walking across the street. As noted, however, Johnson makes
clear that the proper focus is on the capacity in which the officer is acting,
not the precise act leading to injury. Johnson, 114 Ill. 2d at 522. As in
Johnson, plaintiff was acting in a capacity that involved special risks.
In its written decision, the Board found it significant that plaintiff was
not responding to a call for assistance but rather was "riding at his own
pace and discretion, choosing what route to take and when and where to stop."
It is true that both Johnson and White placed some emphasis on the level
of discretion involved in the performance of a particular duty. Johnson noted
that, unlike a private citizen, the injured officer was not at liberty to
ignore a citizen's request for assistance. In contrast, in White, the majority
emphasized that the officer had discretion in deciding when, where, and how
to stop and exit his vehicle. However, we believe that both the Board and
the court in White misapprehended the discretion that our supreme court was
referring to in Johnson. The Johnson court explained that the officer did
not have discretion with regard to whether or not he would help the motorist.
Johnson, 114 Ill. 2d at 522. This supported the court's conclusion that the
actions performed by the officer were not those of an ordinary citizen because
"unlike an ordinary citizen, the policeman has no option as to whether to
respond; it is his duty to respond regardless of the hazard ultimately
encountered." (Emphasis in original.) Johnson, 114 Ill. 2d at 522. In short,
the Johnson court discussed whether or not the officer had discretion to
perform the act, not discretion with respect to the manner in which the precise
physical components of the act were performed. Whether an officer has discretion
to perform an act is relevant to determine whether the capacity in which
he is acting involves special risk and is, therefore, an act of duty. However,
the discretion involved in performing specific physical activities is not
relevant because such discretion does not bear upon the capacity in which
the officer is acting.
Furthermore, we believe that the majority in White focused on the act performed
instead of the capacity in which the officer was acting. The court in White
focused on the manner in which the officer acted in stopping and exiting
his vehicle and the discretion involved in performing these acts. However,
we believe that under Johnson the proper focus should have been the capacity
in which the officer was acting, namely, issuing a parking citation. Just
like the officer in Johnson, the officers in White and in this case were
required to "have [their] attention and energies directed towards being prepared
to deal with any eventuality." Johnson, 114 Ill. 2d at 522. Thus, to the
extent that White focuses on the relevance of an officer's precise physical
activities and the discretion involved in performing them, we find its analysis
to be at odds with the teachings of Johnson and we reject it.
For the foregoing reasons, the judgment of the circuit court of Lake County
affirming the Board's denial of line-of-duty benefits is reversed.
Reversed.
BYRNE, J., concurs
BOWMAN, J., dissenting:
I respectfully dissent. In my view, routine police bicycle patrol, without
more, does not qualify as a special risk that would entitle plaintiff to
line-of-duty disability benefits. I also disagree with the majority's rejection
of this court's previous decision in White v. City of Aurora, 323 Ill. App.
3d 733 (2001).
As our supreme court stated in Johnson v. Retirement Board of the Policemen's
Annuity & Benefit Fund, 114 Ill. 2d 518, 522 (1986), when determining
whether a police officer's activity involves a special risk not ordinarily
assumed by a citizen in the ordinary walks of life, "[t]he crux is the capacity
in which the police officer is acting." The majority never squarely addresses
the capacity in which plaintiff was acting when he incurred his injury. Instead,
it relies on general risks associated with bicycle riding and possible risks
that plaintiff did not actually encounter at the time he was injured. In
my view, none of the risks that the majority identifies, whether real or
imagined, elevate plaintiff's activities at the time of his injury to the
level of a special risk.
The undisputed facts of this case demonstrate that, at the time of his injury,
plaintiff encountered only general risks attendant to riding a bicycle. Contrary
to the majority, I am of the opinion that civilian bicyclists regularly deal
with varied terrain, sometimes at night, while at the same time observing
their surroundings. Hence, while I am not minimizing the importance of
plaintiff's work, his actions at the time he sustained his injury did not
involve a special risk that entitled him to line-of-duty disability.
Additionally, there is no support in the case law for the majority's reliance
on hypothetical dangers such as falls, collisions, and encounters with "unsavory"
individuals, as a basis for finding a special risk. Rather, as in Johnson,
the focus should be the actual circumstances surrounding plaintiff's injury.
See Johnson, 114 Ill. 2d at 522. The majority ignores the actual circumstances
of this case, contrary to Johnson, and enlarges the scope of an "act of duty"
to include any activity that might potentially involve a special risk. One
can easily envision scenarios under which virtually any aspect of a police
officer's duties could involve a special risk. Thus, under the majority's
analysis, officers will be entitled to line-of-duty benefits every time they,
while on duty, are injured while riding a bicycle, walking on a sidewalk,
or riding in a car, regardless of the capacity in which they are acting at
the time of the injury. Just as the legislature did not intend for the term
"special risk" to include only inherently dangerous activities (see Johnson,
114 Ill. 2d at 521-22), I do not believe that it intended for "special risk"
to include activities that might carry risk under hypothetical circumstances.
That is why, in order to prevent the definitions of "act of duty" and "special
risk" from becoming meaningless, we must look at what actually happened instead
of what could have happened. There was nothing about the actual circumstances
of plaintiff's injury that would elevate his activities to an "act of duty."
Even though he was injured while on duty and assigned to the bicycle patrol,
he was not acting in a capacity different from that of any civilian bicyclist.
The majority relies on Johnson in reversing the trial court. Johnson does
not support the majority's position for the reasons stated above and, also,
because it is factually distinguishable from the case at bar. The plaintiff
in Johnson was injured when he fell while crossing the street to assist a
citizen who asked for help. Johnson, 114 Ill. 2d at 520. The court held that
Johnson's act of duty "was the act of responding to the call of a citizen
for assistance." Johnson, 114 Ill. 2d at 522. The facts that Johnson was
called upon to assist a citizen and that he had no option but to respond
were the bases of the court's determination that the plaintiff's actions
constituted an "act of duty." Johnson, 114 Ill. 2d at 522. It is undisputed
that plaintiff in the case at bar was not responding to any request for
assistance, nor was he responding to any other situation that required his
intervention; he was simply riding his bicycle while on patrol. Thus, the
majority's attempts to liken his activities to those of the plaintiff in
Johnson are not persuasive.
Last, I disagree with the majority that this court's decision in White is
at odds with Johnson. The majority criticizes White for placing undue emphasis
on the precise activities the officer was performing and his discretion in
performing them. The majority acknowledges that consideration of an officer's
discretion is appropriate, but believes that White improperly focused on
the officer's discretion in performing specific physical actions rather than
on his discretion in performing the act of issuing a parking citation. The
majority's reasons for refuting White are unpersuasive. First, police officers
generally have discretion when deciding whether to issue a citation. Thus,
the analysis in White would not have been any different if the court had
addressed the officer's discretion in issuing a citation instead of his
discretion in exiting his vehicle. Moreover, the officer's exercise of discretion
in exiting his vehicle was not the basis of our decision in White. White
relied on the fact that the activity the officer was performing when he was
injured, placing a citation on a car windshield, is one that civilians routinely
perform. White, 323 Ill. App. 3d at 736. We addressed the officer's discretion
only to distinguish Johnson, upon which the officer had relied. See White,
323 Ill. App. 3d at 737. Accordingly, the majority's criticism of White is
unfounded.
For the foregoing reasons, I would affirm the denial of line-of-duty benefits.
This article appeared in the Fall 2004 issue of
IPMBA News. The text of the court's decision
was provided by
http://www.state.il.us/. |
