Rokosik v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago

FIFTH DIVISION

June 1, 2007

Nos. 1-05-1501 & 1-05-1502 (consolidated)

)

CAROL ROKOSIK, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County

)

v. )

)

THE RETIREMENT BOARD OF THE FIREMEN’S ) Honorable

ANNUITY AND BENEFIT FUND OF CHICAGO, ) William O. Maki,

) Judge Presiding.

Defendant-Appellee. )

)

________________________________________________ ))

))

)) Appeal from the

ELLEN PRESTON, )) Circuit Court of

)) Cook County

Plaintiff-Appellant, ))

))

v.

Honorable

THE RETIREMENT BOARD OF THE FIREMEN’S William O. Maki,

ANNUITY AND BENEFIT FUND OF CHICAGO, Judge Presiding.

Defendant-Appellee.

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiffs Carol Rokosik and Ellen Preston each filed separate complaints for

administrative review in the circuit court against defendant, the Retirement Board of the

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Firemen's Annuity and Benefit Fund of Chicago (Board). In their complaints, both plaintiffs

challenged Board decisions granting them widow's non-duty-related annuity benefits pursuant to

section 6-141.1 of the Illinois Pension Code (Code or Pension Code) (40 ILCS 5/6-141.1 (West

2004)), rather than the greater widow's duty-related annuity benefits pursuant to section 6-140 of

the Code (40 ILCS 5/6-140 (West 2004)). In addition, Preston's complaint sought a writ of

mandamus ordering the Board "to notify all potential widows of their rights under the [Pension

Code] and to conduct a hearing conforming to fair notice and due process."

A section 6-141.1 widow's non-duty-related annuity ("non-duty death benefit" or "non-

duty annuity") entitles a widow of a firefighter who was not retired and had at least 1½ years of

creditable service at the time of his death to the greater of (1) "30% of the salary attached to the

rank of first class firefighter in the classified career service at the time of the fireman's death" or

(2) 50% of the retirement annuity for which her husband would have been eligible had he retired

the day before his death. 40 ILCS 5/6-141.1 (West 2004). A section 6-140 widow's duty-related

annuity ("duty death benefit" or "duty annuity") entitles a widow to a benefit equal to 75% of her

husband's salary. 40 ILCS 5/6-140 (West 2004).

On September 10, 2003, the circuit court entered an order dismissing the count of

Preston's complaint which sought a writ of mandamus. On April 22, 2005, the circuit court

entered two separate written orders affirming the Board's decisions denying plaintiffs' requests

for duty annuities. On May 9, 2005, Preston filed a notice of appeal seeking review of both the

circuit court's order dismissing her request for a writ of mandamus and its order affirming the

Board's denial of her request for a duty annuity. On that same date, Rokosik filed a separate

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notice of appeal seeking review of the circuit court's order affirming the Board's denial of her

request for a duty annuity. Thereafter, on July 29, 2005, this court entered an order consolidating

the two appeals pursuant to an agreed motion filed by counsel for Preston and Rokosik.

Plaintiffs contend on appeal that they are entitled to duty annuities under section 6-140 because

their husbands were receiving occupational disability benefits at the time of their deaths for

diseases that permanently prevented them from returning to active service. In addition, Preston

contends that the trial court should have granted her request for a writ of mandamus.

BACKGROUND

Ellen Preston

Ellen Preston is the widow of John Preston (Mr. Preston). Mr. Preston began working for

the Chicago fire department in November 1974, and on October 22, 2000, at age 49, he suffered

a heart attack while on duty. Following his heart attack, Mr. Preston applied for an occupational

disability benefit, and in December 2001 the Board conducted an evidentiary hearing on that

application.

Various medical reports and records were presented at that hearing. A report by Board

physician George S. Motto, who evaluated Mr. Preston following this event, related the

circumstances surrounding the heart attack as follows:

"[W]hile on[] duty at a firehouse on October 22, 2000 [Mr.

Preston] developed a[n] uneasy feeling and a tightness in his upper

chest by his clavicle (collar bone). He then walked up a flight of

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stair[s] and when he entered his room, in the presence of a friend

actually had a syncopic episode from which he awakened. He had

very little pain although he describes marke[d] diaphoresis

(sweating). He finally decided to seek help in the hospital. He was

brought to St. Francis Hospital in Blue Island where he was having

an acute anterior wall myocardial infarction."

Dr. Motto's report additionally noted that Mr. Preston "suffered an acute myocardial infarction

which required stenting and then angioplasty" and opined that "[b]ecause of his coronary artery

disease he is disabled and should not perform paramedic duties."

A report prepared by Dr. Joseph V. Messer, who also evaluated Mr. Preston, noted that

Mr. Preston had "generally enjoyed good health except for significant obesity with a 100 pound

weight gain over the past five years, until [the date of his heart attack], when he lost

consciousness after climbing the stairs to his office." Dr. Messer noted in his report that he

"urged [Mr. Preston] to contact his primary care physician for an evaluation of his serum lipids

with appropriate therapy if indicated, and for referral to a weight loss program such as 'Weight

Watchers' in an effort to reduce his significant, near-morbid exogenous obesity."

At the hearing on his application for occupational disability benefits, Mr. Preston was

asked, "Did you develop your heart condition during the time you were in service with the Fire

Department?" Mr. Preston responded "I can't say. I believe I did. I had a heart attack the

morning I went to work on October 22, of 2000." Mr. Preston additionally testified that he had

no knowledge of any heart problems prior to his heart attack. Dr. Motto, the only witness other

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than Mr. Preston to testify at the hearing, opined that Mr. Preston's disability was permanent.

At the conclusion of the hearing, the Board granted Mr. Preston an occupational disease

disability benefit pursuant to section 6-151.1 of the Pension Code (40 ILCS 5/6-151.1 (West

2000)), and upon the motion of one of the Board members, found that the disability was

permanent. The Board's "Decision and Findings of Facts," dated December 19, 2001, states that

Mr. Preston "is unable to perform his duties in the Chicago Fire Department by reason of heart

disease resulting solely from his service as a fireman."

Mr. Preston died on September 10, 2002, at age 50; the death certificate states that the

cause of death was coronary artery disease. Following her husband's death, Preston submitted an

application for widow's annuity. The Board subsequently granted Preston an ordinary widow's

annuity pursuant to section 141.1 of the Pension Code and notified her of its decision in an

October 2002 letter.

On December 30, 2002, Preston filed a two-count complaint for administrative review.

Count I alleged "[t]he decision of the Board should be reversed on the grounds that as a matter of

law and the manifest weight of the evidence, [Preston] is entitled to section 6-140 duty death

widow benefit." In addition, count I asserted that the Board's actions violated Preston's due

process rights to a fair hearing and specifically alleged that "the [Board's] notice of hearing and

post-hearing letters to plaintiff failed to provide any notice of any material facts or controversy to

which [she had a] right to be present, retain an attorney, present evidence, or cross-examine

witnesses." Count II alleged that "[a] substantial number of widows whose husbands died while

in receipt of duty disability benefits have a clear legal right to Section 6-140 widow's annuity"

and asserted that a substantial number of widows "are now receiving substantially less because

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the Board failed to afford a due process hearing as required by the Illinois and United States

Constitutions." Based on these allegations, Preston sought a writ of mandamus ordering the

Board to notify all potential widows of their rights under the Pension Code and to conduct a

hearing conforming to fair notice and due process.

The trial court dismissed count II of Preston's complaint pursuant to a motion filed by the

Board. However, the trial court remanded count I of Preston's complaint to the Board for a

hearing, finding that the Board failed to satisfy the requirements of due process before rendering

its decision on Preston's application for an annuity benefit.

The record on appeal reflects that on remand counsel for Preston submitted several

exhibits, including papers relating to this litigation, legislative activities related to the Illinois

Pension Code, and a transcript of a Board meeting regarding a fireman unrelated to Mr. Preston.

The record does not reflect that counsel for Preston presented any evidence regarding an alleged

connection between Mr. Preston's coronary artery disease and a specific incident relating to his

work as a paramedic.

Following the remand hearing, the Board concluded Mr. Preston was not a fireman killed

in the performance of duty pursuant to section 6-140, and therefore his widow was not entitled to

a duty annuity benefit. In support of this conclusion, the Board found:

"7. There is no language contained in 40 ILCS § 5/6-140

that specifically states that the widow of a fireman who was

receiving occupational disease disability benefits, is entitled to

receive the annuity provided in that Section upon the death of the

fireman.

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8. Payment of a Duty Death Widow's Annuity benefit

pursuant to 40 ILCS § 5/6-140 to the widow of a fireman who died

while in receipt of occupational disease disability benefits would

result in the widow receiving an annuity that was greater (75% of

salary) than the occupational disease disability benefit that the

fireman was receiving (65% of salary) prior to his death.

9. Ellen M. Preston did not produce sufficient medical

evidence to support a finding that John T. Preston was prevented

from subsequently resuming active service in the Chicago Fire

Department as a result of his performance of an act or acts of

duty."

In addition the Board's decision included the following conclusion:

"[I]t would not be consistent with the expressed intent of the

Legislature to have granted a benefit to the widow of a fireman

whose husband died while receiving occupational disease disability

benefits that [were] greater than the disability benefit that the

husband was receiving while he was alive."

Thereafter, on January 6, 2005, Preston filed a memorandum in the circuit court in

support of her complaint for administrative review of the Board's decision. In that memorandum,

Preston contended that "[a] duty disability benefit is the same as an occupational disease

disability benefit" and that "widows of both duty and occupationally disabled firemen are entitled

to the same benefits of section 6-140." The circuit court upheld the Board's decision denying

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Preston's request for a duty annuity. In support of its holding, the court explained:

"The Retirement Board correctly points out that the Pension

Code does not provide benefits to widows greater than the benefits

firemen are entitled to receive while still alive. The court finds this

argument persuasive. John Preston was not awarded a duty

disability which would have entitled him to 75% of his salary

while still living and which would have made his widow eligible

for 75% of his salary upon his death. John Preston was awarded an

occupational disability which entitled him to 65% of his salary

while living. There is no provision in the Pension Code that would

allow Ellen Preston to receive 'Death in the line of duty' benefits at

75% of her husband's salary, and no provision in the Pension Code

that would allow Ellen Preston to continue to receive 65% of her

husband's salary. ***

In cities with over 500,000 people, the Illinois legislature

has chosen to award a higher benefit to firemen eligible for duty

disability. Therefore, a duty disability and an occupational

disability are clearly not the same benefit. *** This court agrees

with the Retirement Board that Ellen Preston is not eligible to

receive greater benefits than her spouse was eligible to receive

while he was still living."

Carol Rokosik

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Carol Rokosik is the widow of Edward D. Rokosik (Mr. Rokosik). Mr. Rokosik began

working for the Chicago fire department in October 1978. In September 1998, Mr. Rokosik was

diagnosed with kidney cancer. Following this diagnosis, Mr. Rokosik applied for an

occupational disability benefit, and in February 2000 the Board conducted an evidentiary hearing

on that application.

At that hearing, Mr. Rokosik testified that he developed his cancer during the time that he

was in service with the Chicago fire department. Mr. Rokosik indicated that he had been

exposed to heat, noxious fumes and gases while employed as a firefighter. The following

exchange then took place between Mr. Rokosik and the Board's attorney:

"Q. Do you have any specific incidents that you would point to?

A. No, sir.

Q. You are just talking about the cumulative effect of exposure?

A. Yes."

Board physician Dr. Motto testified that he examined Mr. Rokosik and reviewed his

medical records. Dr. Motto opined that Mr. Rokosik was not able to perform his duties as a

firefighter "because of his kidney cancer and the resultant need for surgery and other treatments."

In addition, Dr. Motto testified that several medical studies he had reviewed found an increased

risk of kidney cancer in firefighters and indicated "a connection between an activity as a

firefighter and the development of kidney cancer."

At the conclusion of the hearing, the Board granted Mr. Rokosik an occupational disease

disability benefit pursuant to section 6-151.1 of the Pension Code (40 ILCS 5/6-151.1 (West

2000)), and upon the motion of one of the Board members, found that the disability was

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permanent. The Board's "Decision and Findings of Facts," dated February 16, 2000, states that

Mr. Rokosik "is unable to perform his duties in the Chicago Fire Department by reason of his

development of a type of cancer which may be caused by exposure to heat, radiation or a known

carcinogen as defined by the International Agency for Research on Cancer." (Emphasis added.)

Mr. Rokosik died in July 2003; the death certificate states the cause of death was kidney

cancer. Thereafter, Rokosik submitted an application for widow's annuity.

Following a hearing on Rokosik's application, the Board concluded Rokosik was eligible

to receive a non-duty annuity pursuant to section 6-141.1 of the Pension Code but had not

produced sufficient evidence to prove she was entitled to receive a duty annuity pursuant to

section 6-140 of the Code. In support of this conclusion, the Board found that Mr. Rokosik "died

from kidney cancer which was not directly related to his performance of an act or acts of duty."

In addition, the Board noted that widows of firemen who were in receipt of occupational disease

disability benefits (at the time of their deaths) are not entitled to widow's annuities under section

6-140 of the Code.

Thereafter, in October 2003, Rokosik filed a complaint for administrative review of the

Board's decision in the circuit court. The circuit court upheld the Board's decision in an April 22,

2005, memorandum opinion and order, following the same reasoning which it applied in

reviewing Preston's complaint for administrative review.

Rokosik and Preston filed separate appeals of the circuit court orders denying them duty

annuities. In addition to seeking review of the denial of a duty annuity, Preston's appeal sought

review of the trial court's order dismissing her request for a writ of mandamus. On July 29, 2005,

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this court consolidated these two appeals pursuant to an agreed motion filed by plaintiffs'

counsel.

ANALYSIS

Plaintiffs maintain on appeal that "the resolution of this case depends, not upon evidence

heard by the Board or even application of those facts to the law (a mixed question of fact and law

to which a clearly erroneous standard should apply), but upon the purely legal question of the

proper interpretation of the statutory provisions governing annuity benefits for the widows of

firefighters found to be disabled by a job related causation." Specifically, plaintiffs contend that

because their husbands were receiving occupational disability benefits at the time of their deaths

for illnesses which permanently prevented them from returning to active service, plaintiffs are, as

a matter of law, entitled to a duty annuity under section 6-140. Accordingly, plaintiffs argue, the

Board's decision denying them duty death benefits is subject to de novo review.

Section 6-140 of the Code states in relevant part:

"The annuity for the widow of a fireman whose death

results from the performance of an act or acts of duty shall be an

amount equal to 50% of the current annual salary attached to the

classified position to which the fireman was certified at the time of

his death and 75% thereof after December 31, 1972.

Unless the performance of an act or acts of duty results

directly in the death of the fireman, or prevents him from

subsequently resuming active service in the fire department, the

annuity herein provided shall not be paid; nor shall such annuities

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be paid unless the widow was the wife of the fireman at the time of

the act or acts of duty which resulted in his death." (Emphasis

added.) 40 ILCS 5/6-140 (West 2004).

Section 6-110 defines "act of duty" as:

"Any act imposed on an active fireman by the ordinances of a city,

or by the rules or regulations of its fire department, or any act

performed by an active fireman while on duty, having for its direct

purpose the saving of the life or property of another person." 40

ILCS 5/6-110 (West 2004).

The plain language of section 6-140 of the Code thus provides that in order to receive a

duty annuity, a widow of a deceased fireman must establish that "the performance of an act or

acts of duty" either directly resulted in the death of her husband or prevented him from resuming

active service in the fire department. 40 ILCS 5/6-140 (West 2004). This court, in construing

section 6-140, has clarified that in the latter situation a widow must establish the act or acts of

duty in question permanently caused the fireman to be unable to return to active duty. Bertucci v.

Retirement Board of the Firemen's Annuity & Benefit Fund, 351 Ill. App. 3d 368, 373-74 (2004);

Barry v. Retirement Board of the Firemen's Annuity & Benefit Fund, 357 Ill. App. 3d 749, 768

(2005) (following Bertucci). Thus, contrary to plaintiffs' position, resolution of whether the

Board properly denied their requests for duty annuities does depend on evidence presented to the

Board and whether the Board properly applied section 6-140 of the Code to that evidence.

Accordingly, we apply the clearly erroneous standard to our review of plaintiffs' appeal. See

Barry, 357 Ill. App. 3d at 764-65 (whether Board properly construed and applied section 6-140 in

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concluding that widows were not entitled to duty death benefits presents a mixed question of law

and fact subject to the clearly erroneous standard of review).

With respect to Preston's claim for a duty annuity, the Board found that she "did not

produce sufficient medical evidence to support a finding that John T. Preston was prevented from

subsequently resuming active service in the Chicago Fire Department as a result of his

performance of an act or acts of duty." We have reviewed the evidence presented to the Board at

the remand hearing on Preston's claim for a duty annuity and find no basis for disturbing this

finding. We recognize that Mr. Preston suffered a heart attack while on duty and that the Board

thereafter granted him an occupational disability benefit. Furthermore, we are mindful that the

Board's written decision granting him an occupational disability benefit stated that he was unable

to perform his duties in the Chicago fire department by reasons of heart disease resulting solely

from "his service as a fireman." We emphasize, however, that the Board's decision did not state

that Mr. Preston's heart disease resulted from "an act or acts of duty."

As noted above, section 6-110 of the Code defines "act of duty" as "[a]ny act imposed on

an active fireman by the ordinances of a city, or by the rules or regulations of its fire department"

as well as "any act performed by an active fireman while on duty, having for its direct purpose

the saving of the life or property of another person." 40 ILCS 5/6-110 (West 2004). The

evidence before the Board in the instant case reflects that Mr. Preston suffered a heart attack

shortly after climbing stairs at the firehouse. Preston, however, presented no evidence to the

Board indicating that an act undertaken by her husband in an attempt to save a person or the

property of a person caused his heart disease or prevented him from returning to active service.

Furthermore, Preston presented no evidence to the Board indicating that the performance of an

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act imposed upon her husband by city ordinance or by a rule or regulation of the fire department

caused him to contract the heart disease which prevented him from returning to work and of

which he ultimately died. In short, while Preston did present the Board with its own finding,

made at her husband's occupational disability hearing, that Mr. Preston was rendered

permanently disabled by reasons of heart disease resulting solely from his "service as a fireman,"

she did not present the Board with evidence indicating that a specific act or acts of duty rendered

him disabled.

With respect to Rokosik's claim for a duty annuity, the Board found that Mr. Rokosik

"died of kidney cancer which was not directly related to his performance of an act or acts of

duty." We have reviewed the evidence before the Board at the time it rendered its decision and

find no basis for disturbing this finding. We recognize, as plaintiffs note in their brief, that Board

physician Dr. Motto testified at the hearing on Mr. Rokosik's application for duty disability that

medical studies he had reviewed found an increased risk of kidney cancer in firefighters and

indicated "a connection between an activity as a firefighter and the development of kidney

cancer." We note, however, that Rokosik presented no evidence to the Board indicating that a

specific act performed by her husband in an attempt to save a person or the property of a person

caused his kidney cancer or prevented him from returning to active service. Furthermore,

Rokosik presented no evidence to the Board indicating that the performance of an act imposed

upon Mr. Rokosik by city ordinance or by a rule or regulation of the fire department caused him

to contract the kidney cancer which prevented him from returning to work and of which he

ultimately died.

Plaintiffs' primary contention on appeal, as noted earlier, is that they are each entitled to a

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duty annuity under section 6-140 of the Code, as a matter of law, because their husbands were

receiving occupational disability benefits, at the time of their deaths, for diseases which

permanently prevented them from returning to active duty. In essence, plaintiffs ask us to

construe section 6-140 to automatically entitle widows of firemen to a duty annuity if their

husbands were receiving an occupational disability benefit, at the time of their deaths, for a

disease or condition which permanently prevented them from returning to active service.

"The primary rule of statutory construction is to ascertain and give effect to the intent of

the legislature." Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320 (2003). "To do

so, we examine the language of the statute, the most reliable indicator of the legislature's

objectives in enacting the law." Rogers, 204 Ill. 2d at 320. "We afford the language of the

statute its plain and ordinary meaning [citation] and construe the statute as a whole." Rogers,

204 Ill. 2d at 320. "Words and phrases must not be viewed in isolation but must be considered in

light of other relevant provisions of the statute." Rogers, 204 Ill. 2d at 320. "We also presume

that in enacting the statute the legislature did not intend absurdity, inconvenience, or injustice."

Rogers, 204 Ill. 2d at 320.

The plain language of section 6-140 does not state that the widow of a fireman who was

receiving occupational disability benefits at the time of his death for a permanent disability is

automatically entitled to a duty annuity. Plaintiffs acknowledge in their reply brief that section 6-

140 does not specifically address the widows of occupationally disabled firemen. They argue,

however, that a review of case law and other related statutory provisions supports their

construction of section 6-140.

To support their contention that the fact that their husbands were receiving occupational

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disabilities at the time of their deaths entitled plaintiffs to a duty annuity, plaintiffs cite our recent

holdings in Barry and Bertucci that the widow of a fireman who was receiving duty disability at

the time of his death is entitled to a duty annuity if she can establish that her husband's disability

permanently prevented him from returning to active service. Plaintiffs then argue that "[a] duty

disability benefit is the same as an occupational disease disability benefit" and that, therefore,

widows such as themselves, whose husbands were receiving occupational disability benefits at

the time of their deaths and whose disabling conditions prevented them from returning to active

service, are automatically entitled to receive a duty annuity.

Plaintiffs' argument is based upon two separate premises. First, plaintiffs' argument is

based on the premise that the widow of a fireman who was receiving a duty disability benefit at

the time of his death is entitled to a duty annuity if she can establish that her husband's disability

permanently prevented him from returning to active duty. We agree with this premise - indeed it

is essentially the rule construing section 6-140 of the Code, which we noted above and which this

court recently applied in Barry and Bertucci. See Barry, 357 Ill. App. 3d at 768; Bertucci, 351 Ill.

App. 3d at 373-74.

The second premise underlying plaintiffs' argument is that the requirements for

establishing a duty disability and an occupational disability are the same and, thus, that the grant

of an occupational disability benefit necessarily entitles a widow to a duty annuity when her

husband's occupational disability permanently prevents him from returning to active duty.

Specifically plaintiffs contend "Duty Disability Benefits in Section 6-151 are identical in purpose

to Occupational Disability Benefits in Section 6-151.1 of the Code. The Retirement Board's

attempt to make a distinction is meritless. The fact is, the two disability benefits are for job

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related injuries or illnesses. The disability standard is the same for both benefits. [Citation.] The

proof of disability is the same."

We reject this second premise as a comparison of the two statutory provisions governing

duty disability and occupational disability reflects that the requirements for establishing

eligibility for those benefits are not the same.

Section 6-151, which provides for duty disability benefits, states in relevant part:

"An active fireman who is or becomes disabled on or after

the effective date as the result of a specific injury, or of cumulative

injuries, or of specific sickness incurred in or resulting from an act

or acts of duty, shall have the right to receive duty disability benefit

during any period of such disability for which he does not receive

or have a right to receive salary, equal to 75% of his salary at the

time the disability is allowed." 40 ILCS 5/6-151 (West 2004).

Section 6-151.1, which provides for occupational disability benefits, states in relevant

part:

"The General Assembly finds and declares that service in

the Fire Department requires that firemen, in times of stress and

danger, must perform unusual tasks; that by reason of their

occupation, firemen are subject to exposure to great heat and to

extreme cold in certain seasons while in performance of their

duties; that by reason of their employment firemen are required to

work in the midst of and are subject to heavy smoke fumes and

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carcinogenic, poisonous, toxic or chemical gases from fires; and

that in the course of their rescue and paramedic duties firemen are

exposed to disabling infectious diseases, including AIDS, hepatitis

C, and stroke. The General Assembly further finds and declares

that all the aforementioned conditions exist and arise out of or in

the course of such employment.

Any active fireman who has completed 7 or more years of

service and is unable to perform his duties in the Fire Department

by reason of heart disease, tuberculosis, any disease of the lungs or

respiratory tract, AIDS, hepatitis C, or stroke resulting from his

service as a fireman, shall be entitled to receive an occupational

disease disability benefit during any period of such disability for

which he does not have a right to receive salary.

Any active fireman who has completed 7 or more years of

service and is unable to perform his duties in the fire department by

reason of a disabling cancer, which develops or manifests itself

during a period while the fireman is in the service of the

department, shall be entitled to receive an occupational disease

disability benefit during any period of such disability for which he

does not have a right to receive salary. In order to receive this

occupational disease disability benefit, the type of cancer involved

must be a type which may be caused by exposure to heat, radiation

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or a known carcinogen as defined by the International Agency for

Research on Cancer.

***

The occupational disease disability benefit shall be 65% of

the fireman's salary at the time of his removal from the Department

payroll." 40 ILCS 5/6-151.1 (West 2004).

The plain language of section 6-151.1 states the nature of firemen's occupation exposes

them to an inherently dangerous environment and provides that firemen who have completed at

least seven years of service may potentially be entitled to an occupational disability. Section

6-151.1 provides that some of what a fireman must establish in order to receive an occupational

disability benefit is contingent upon the nature of the disease, illness, or condition giving rise to

the disability. Specifically, the second paragraph of section 6-151.1 states that a fireman who

develops heart disease, tuberculosis, any disease of the lungs or respiratory tract, AIDS, hepatitis

C, or stroke may qualify for an occupational disability benefit if he can establish that the subject

disease or condition prevented him from being able to perform his duties and "result[ed] from

his service as a fireman." (Emphasis added.) 40 ILCS 5/6-151.1 (West 2004). On the other

hand, the third paragraph of section 6-151.1 states that a fireman who develops a certain type of

cancer may potentially qualify for an occupational disability benefit and does not require that he

establish that the cancer resulted from his service as a fireman. 40 ILCS 5/6-151.1 (West 2004).

Regardless of the nature of the disease, a fireman will not be eligible for an occupational

disability benefit unless he has completed seven years of service. This seven-year requirement

reflects that occupational disability benefits were intended to compensate firemen for diseases

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likely to be contracted as a result of repeated exposure to the inherently dangerous conditions

which firemen confront in the course of their service. Finally, the benefit provided for

occupational disability is 65% of a firemen's salary. 40 ILCS 5/6-151.1 (West 2004).

In contrast to an occupational duty disability benefit under section 6-151.1 of the Code,

which requires a fireman with a disease other than cancer to establish that the disease resulted

from his "service as a fireman," a section 6-151 duty disability benefit requires a fireman to

establish that he became disabled "as the result of a specific injury, or of cumulative injuries, or

of specific sickness incurred in or resulting from an act or acts of duty." (Emphasis added.) 40

ILCS 5/6-151 (West 2004). Furthermore, whereas an occupational duty disability compensates

firemen who are repeatedly exposed to inherently dangerous environments and conditions and is

not awarded to firemen who have completed less than seven years of service, a duty disability

seeks to compensate firemen for injuries or conditions sustained as a result of specific,

identifiable act or acts of duty and is not conditioned upon completion of a fixed number of years

of service. Finally, the benefit provided for duty disability is not 65% of a fireman's salary but,

rather, is 75% of a fireman's salary. 40 ILCS 5/6-151 (West 2004). In short, contrary to

plaintiffs' contention, the requirements for establishing entitlement to occupational and duty

disability benefits are not the same. Accordingly, for the foregoing reasons, we reject plaintiffs'

argument that section 6-140 of the Code, the statutory provision governing duty annuities,

entitles widows of occupationally disabled firemen to receive a duty annuity as a matter of law

when their husbands' disability permanently prevented them from resuming active service.

We note that we do not hold today that a widow of a firefighter who was receiving an

occupational disability benefit at the time of his death (i.e., 65% of her husband's salary) may

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never qualify for a duty annuity (i.e., 75% of her husband's salary), and we reject the dicta

included in the decisions of the Board and the circuit court supporting such a rule. We

emphasize that eligibility for a duty annuity requires review of the individual facts of a given case

in order to determine whether a widow's husband's performance of an act or acts of duty

permanently prevented him from resuming active service in the fire department. We can

envision factual contexts in which the passage of time and/or advancements in medical science

could enable the widow of a fireman who was receiving an occupational duty disability to

establish, following her husband's death, that a specific act or acts of duty caused her husband's

disease, sickness or condition. Such factual context is not presented by the instant case.

Accordingly, based upon the foregoing discussion, we conclude that the Board's denial of duty

annuities to plaintiffs was not clearly erroneous.

In addition to challenging the Board's decision granting her a non-duty annuity rather than

a duty annuity, Preston argues on appeal that the trial court erred by dismissing count II of her

complaint for administrative review. Count II of her complaint, as noted above, alleged that "[a]

substantial number of widows whose husbands died while in receipt of duty disability benefits

have a clear legal right to Section 6-140 widow's annuity" and alleged that a substantial number

of widows "are now receiving substantially less because the Board failed to afford a due process

hearing." Based on the these allegations, Preston requested a writ of mandamus ordering the

Board "to notify all potential widows of their rights under the [Code] and to conduct a hearing

conforming to fair notice and due process."

A party seeking a writ of mandamus to compel a defendant to perform an act or duty

which does not affect the public at large must establish, among other things, that it previously

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demanded performance of that act or that the making of such a demand would have been

unavailing. Murphy v. City of Park Ridge, 298 Ill. 66, 71-72 (1921); People ex rel. Edelman v.

Hunter, 350 Ill. App. 75, 78 (1953).

Preston's complaint in the instant action does not seek to compel the Board to undertake

an action which affects the public at large and does not allege that she demanded the Board "to

notify all potential widows of their rights under the [Pension Code] and to conduct a hearing

conforming to fair notice and due process." Furthermore, Preston's complaint does not allege any

basis for concluding that a demand upon the Board for such action would have been unavailing.

Accordingly, we affirm the dismissal of count II of Preston's complaint.

CONCLUSION

Based on the foregoing reasons, we affirm the Board's decisions denying plaintiffs duty

annuities, the trial court's decisions upholding those decisions by the Board, and the trial court's

dismissal of count II of Preston's complaint.

Affirmed.

O’BRIEN, P.J., and GALLAGHER, J., concur.

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