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Appellate Court Date: 2020.03.31
22:07:39 -05'00'
Village of Buffalo Grove v. Board of Trustees of the Buffalo Grove Firefighters’
Pension Fund, 2020 IL App (2d) 190171
Appellate Court THE VILLAGE OF BUFFALO GROVE, Plaintiff-Appellant, v. THE
Caption BOARD OF TRUSTEES OF THE BUFFALO GROVE
FIREFIGHTERS’ PENSION FUND and KIM HAUBER,
Defendants-Appellees.
District & No. Second District
No. 2-19-0171
Filed January 17, 2020
Decision Under Appeal from the Circuit Court of Lake County, No. 18-MR-784; the
Review Hon. Diane L. Winter, Judge, presiding.
Judgment Affirmed.
Counsel on William H. Nichols, Gregory R. James, and Chad R. DeGroot, of
Appeal Laner Muchin, Ltd., of Chicago, for appellant.
Carolyn Welch Clifford, Michael B. Weinstein, and John E.
Motylinski, of Ottosen Britz Kelly Cooper Gilbert & Dinolfo, Ltd., of
Naperville, for appellee Board of Trustees of the Buffalo Grove
Firefighters’ Pension Fund.
Thomas W. Duda and Thomas E. Mazur, of Law Offices of Thomas
W. Duda, of Palatine, for other appellee.
Richard J. Reimer and Brian J. LaBardi, of Reimer & Dobrovolny PC,
of Hinsdale, for amici curiae Illinois Public Pension Fund Association
et al.
Margaret Angelucci and Matt Pierce, of Asher, Gittler & D’Alba, Ltd.,
of Chicago, for amicus curiae Associated Fire Fighters of Illinois.
Matthew S. Jarka, of Asher, Gittler & D’Alba, Ltd., of Chicago, for
amicus curiae Buffalo Grove Professional Firefighters’ Association.
Robert J. Smith Jr., Benjamin E. Gehrt, and Paul A. Denham, of Clark
Baird Smith LLP, of Rosemont, for amici curiae Northwest Municipal
Conference et al.
Tacy F. Flint and Caroline A. Wong, of Sidley Austin LLP, of
Chicago, and Carter G. Phillips, of Sidley Austin LLP, of Washington,
D.C., for amicus curiae Illinois Municipal League.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Presiding Justice Birkett and Justice Burke concurred in the judgment
and opinion.
OPINION
¶1 The defendant the Board of Trustees of the Buffalo Grove Firefighters’ Pension Fund
(Board) issued a decision finding that the defendant Kim Hauber, the widow of former
firefighter John Hauber (Hauber), was entitled to receive survivor’s benefits accruing from a
line-of-duty (duty) pension following Hauber’s death from colon cancer. The plaintiff, the
Village of Buffalo Grove (Village), which had intervened in the Board proceedings, filed an
administrative review action. The circuit court affirmed the Board’s decision, and the Village
now appeals.
¶2 I. BACKGROUND
¶3 Hauber was born in 1967 and joined the Buffalo Grove Fire Department in May 1994 as a
firefighter/paramedic. His job duties included, among other things, responding to emergency
medical and fire calls, providing rescue services including removing fire or accident victims
to safe locations, and participating in post-fire salvage operations. The job requirements
included the ability “to face possible exposure to carcinogenic dusts, such as asbestos, toxic
substances such as hydrogen cyanide, acids, carbon monoxide, or organic solvents either
through inhalation or skin contact.” Records produced by the fire department showed that
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during his career Hauber responded to at least 127 fire calls that included building fires, vehicle
fires, and outdoor fires involving flammable chemicals.
¶4 In May 2014, after 20 years of service with fire departments in Buffalo Grove and other
municipalities, Hauber was diagnosed with colon cancer. In October 2014, he applied for a
duty disability pension or, in the alternative, an occupational disease disability pension. By
June 2015, Hauber’s cancer had gone into remission, and he was able to return to work full
time. He withdrew his application for a disability pension, on which the Board had not yet
ruled.
¶5 Unfortunately, Hauber’s cancer returned in 2017. In June 2017, he underwent genetic
testing, and in July his treating physician at the cancer center, Dr. George Salti, noted that the
test “showed no deleterious mutation” that would suggest a genetic cause for the cancer. In
August 2017, Hauber filed two new applications for disability pensions. The first sought a duty
pension for disabling back pain, which he stated arose from a May 2017 on-the-job incident.
The second sought an occupational disease pension for his colon cancer.
¶6 Duty disability pensions are governed by section 4-110 of the Illinois Pension Code (Code):
“§ 4-110. Disability pension—Line of duty. If a firefighter, as the result of sickness,
accident or injury incurred in or resulting from the performance of an act of duty or
from the cumulative effects of acts of duty, is found *** to be physically or mentally
permanently disabled for service in the fire department, so as to render necessary his
or her being placed on disability pension, the firefighter shall be entitled to a disability
pension ***.” 40 ILCS 5/4-110 (West 2014).
¶7 Occupational disease disability pensions are governed by section 4-110.1 of the Code. That
section includes a legislative finding that firefighters are often exposed to, among other things,
“heavy smoke fumes, and carcinogenic, poisonous, toxic or chemical gases,” and it establishes
a presumption that certain diseases are caused by firefighting work, as long as various
requirements are met:
Ҥ 4-110.1. Occupational disease disability pension. The General Assembly finds
that service in the fire department requires firefighters in times of stress and danger to
perform unusual tasks; that firefighters are subject to exposure to extreme heat or
extreme cold in certain seasons while performing their duties; that they are required to
work in the midst of and are subject to heavy smoke fumes, and carcinogenic,
poisonous, toxic or chemical gases from fires; and that these conditions exist and arise
out of or in the course of employment.
***
Any active firefighter who has completed 5 or more years of service and is unable
to perform his or her duties in the fire department by reason of a disabling cancer, which
develops or manifests itself during a period while the firefighter is in the service of the
fire department, shall be entitled to receive an occupational disease disability benefit
during any period of such disability for which he or she does not have a right to receive
salary. In order to receive this occupational disease disability benefit, (i) the type of
cancer involved must be a type which may be caused by exposure to heat, radiation or
a known carcinogen as defined by the International Agency for Research on Cancer
and (ii) the cancer must (and is rebuttably presumed to) arise as a result of service as a
firefighter.” Id. § 4-110.1.
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¶8 As required, the Board set about obtaining independent medical evaluation (IME) reports
from three doctors. Hauber’s medical records and employment records, including the records
of his fire calls, were provided to the doctors. About that time, Hauber was advised that he
likely had only two weeks to live. Consequently, although the Board had not yet obtained the
IME reports, the Board held an emergency hearing on September 5, 2017, for the limited
purpose of preserving Hauber’s testimony.
¶9 In November 2017, Dr. Daniel Samo issued an IME report and a certification of disability.
Like all of the IME reports received by the Board in this case, it was based solely on a review
of Hauber’s medical records and the medical literature, not on any examination of Hauber. Dr.
Samo opined on whether Hauber qualified for (a) a duty disability pension based on his back
injury and (b) an occupational disease disability pension based on his colon cancer. As to the
back injury, Dr. Samo found that it was not Hauber’s primary disabling condition (the colon
cancer was) and that there was “no way to judge if it would be disabling” given the other
disabling effects of the cancer. Further, there was no objective change in the condition of
Hauber’s back following the May 2017 incident.
¶ 10 As for the colon cancer, Dr. Samo evaluated it solely in the context of whether it met the
criteria for an occupational disease disability pursuant to section 4-110.1 of the Code. Dr. Samo
found that Hauber qualified for such a pension. Specifically, he certified that Hauber’s cancer
was “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” (IARC), that
Hauber’s disability resulted “from service as a firefighter and/or paramedic,” and that the
cancer manifested itself while Hauber was in the service of the fire department and it arose
from that service. In his report, Dr. Samo described five “major studies” that were relevant to
his opinions. Two of these, the 2006 LeMasters study (a review and meta-analysis of 32 studies
on cancer among firefighters) and the 2013 Daniels study (studying the incidence of cancer in
firefighters in San Francisco, Chicago, and Philadelphia from 1950 through 2009), found an
association between firefighting and colon cancer. The three other studies did not. Dr. Samo
found that the Daniels study was the “most robust” study and believed that its conclusions were
the most reliable. He stated that he “would therefore be of the opinion that there is an
association between firefighting and *** Hauber’s cancer.”
¶ 11 Dr. Edward James produced a certification of disability and an IME report in December
2017, finding that Hauber was permanently disabled by his colon cancer. Dr. James went
farther than Dr. Samo, addressing whether the cancer resulted from “the performance of an act
of duty or from the cumulative effects of acts of duty,” an issue that bore on whether Hauber
qualified for a duty disability pension based on the cancer. He concluded that this was
“medically possible.” He also certified that Hauber’s cancer met the criteria for an occupational
disease disability pension. In his report, Dr. James opined that it was “possible that [Hauber’s]
risk of developing colon cancer was significantly increased due to his service as a
firefighter/paramedic.” This opinion was based on the facts that Hauber did not have colon
cancer when he was first hired, that he developed colon cancer while employed as a firefighter,
and that his genetic testing “did not reveal a specific genetic basis for his cancer.” The opinion
was also based on medical literature, including the “Baris et al study” and the “Demers et al
study,” which showed a “statistically significant excess risk for colon cancer in firefighters
with at least 20 years of service.”
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¶ 12 Hauber died of colon cancer at age 51 on January 27, 2018. At that point, the Board had
not yet ruled on his applications for disability pensions, as it was required to wait for the third
IME report.
¶ 13 On February 5, 2018, Hauber’s widow applied for survivor’s benefits of a duty pension
pursuant to section 4-114 of the Code, which provides that a pension shall be paid to a
firefighter’s survivors if, among other things, the firefighter died “as a result of any illness or
accident” but was not receiving an occupational disease or duty disability pension at the time
of death (40 ILCS 5/4-114 (West 2018)). Section 4-114 sets the level of pension benefits
payable to survivors under various scenarios. Under section 4-114(i), the pension to a survivor
of a firefighter who dies “as a result of sickness *** resulting from the performance of an act
of duty or from the cumulative effects of acts of duty” is 100% of the firefighter’s salary on
the last day of service, “notwithstanding subsection (d) or any other provision of this Article.”
Id. § 4-114(i). The first part of section 4-114(i), which sets out the standards for duty-level
survivor’s benefits, and section 4-110, which governs a firefighter’s application for a duty
disability pension, are essentially identical.
¶ 14 Soon after receiving the application for survivor’s benefits, the Board granted interim
nonduty pension benefits (equal to 75% of Hauber’s final pay) to the widow. These interim
benefits were paid while the three applications were pending, without prejudice to her
application for the higher, duty pension benefits.
¶ 15 The third IME report, from Dr. Marina Kuznetsova, was issued on March 5, 2018. Her
certification of disability stated that she was “unsure” whether it was medically possible that
Hauber’s cancer resulted “from the performance of an act of duty or from the cumulative
effects of acts of duty.” In her report, Dr. Kuznetsova mistakenly stated that there was
“definitely no genetic testing of Mr. Hauber.” That mistake affected her opinion regarding the
cause of his cancer:
“The main question of this case is the causation of Mr. Hauber’s cancer. The colon
cancer, according to the current data, may be caused by multiple factors such as diet,
excessive weight, alcohol consumption, sedentary lifestyle, and definitely genetic
predisposition. At this point, we do not routinely test patients for genetic predisposition
for colon cancer. We base our genetic assessment only on the family history. In Mr.
Hauber’s family, there was no indication of colon or breast cancer, though information
only on the very close relatives was provided in the records. Colon cancer may be
associated with BRCA l and BRCA 2 mutation which could be potentially tested, but
again, as I said, it is not a routine exam for colon cancer patients at this point. Given
the information, we have to assume that Mr. Hauber most likely had no genetic
predisposition. At the same time, though, the onset of colon cancer usually occurs in
patients who are genetically predisposed to this disease, and that definitely plays a role
in this case.
I have reviewed literature which is available regarding the cancer incidence in
firefighters. It is general consensus in the medical society that firefighters have high
risk for cancer development in general. *** As far as colon cancer is concerned, the
data is very controversial. Some articles show there may be some positive mild
correlation and some other articles say there is negative correlation. This data is
definitely not sufficient for definitive conclusion of the cause of cancer in this
unfortunate individual. There is also information on relation of the duration of the
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exposure to carcinogens during the firefighting and cancer development. There is no
such data regarding colon cancer specifically, though.
In conclusion, Mr. Hauber definitely had 20 years of exposure to the hazardous
materials. He developed early colon cancer and died of the disease. He was
permanently disabled at the time of the diagnosis. [But] I do not believe we have
enough evidence to support the lack of genetic predisposition for colon cancer in this
case. There is definitely no genetic testing of Mr. Hauber and the family history is
limited to immediate relatives. *** I have worked in Oncology for more than 45 years
and treat a fair number of patients with colon and rectal cancer. I understand that my
personal statistics are not necessarily correlating with the statistics in the rest of the
medical community, but I definitely did not see an increased number of firefighters
versus non firefighters with this disease in my practice over the years. I understand this
is not enough to conclude Mr. Hauber’s occupation as a firefighter was not a
contributing factor of development of the cancer in this unfortunate individual.”
Dr. Kuznetsova concluded that she could not say that Hauber’s cancer was caused by his
service as a firefighter.
¶ 16 The Board heard the three applications on March 23, 2018. The Village successfully
petitioned to intervene in the Board proceedings, which consisted solely of oral argument.
¶ 17 In May 2018, the Board issued its decision. Its findings of fact, which contained Hauber’s
job description and a detailed summary of his medical treatment over time, included the
following. At the time of his hire in 1994, Hauber reported no smoking or alcohol use and
weighed 170 pounds. In 2014, upon his first doctor’s visit for colon issues, he reported no
smoking and negligible alcohol use, and he weighed 194 pounds. Dr. Salti’s notes regarding
the June 2017 genetic testing stated that “[t]his genetic test lowers the likelihood that Mr.
Hauber’s cancer was due to a hereditary cause, however, not all mutations are detectable and,
not all genes were tested.” Dr. Salti stated that, because an underlying cause for Hauber’s
cancer had not been determined, “a hereditary cause remains possible.” However, “[g]iven the
negative genetic test results, the normal tumor IHC for MLH 1, MSH2, MSH6 and PMS2
results, and the lack of a strong family history of cancer, an underlying gene mutation cause of
his cancer is unlikely.” Hauber’s father, a smoker, had died of lung cancer in his eighties, but
there was no other family history of cancer. The Board also took note of an affidavit from the
Buffalo Grove Fire Department’s deputy chief, which stated that Hauber had participated in
over 409 hours of safety training and had never been cited for a safety infraction and that the
fire department had not experienced “an excessive rate of cancer diagnoses” among its active
and retired firefighters (Hauber had received the only colon cancer diagnosis).
¶ 18 The Board next considered each of the IME reports. The Board recognized that Dr. Samo
had explicitly noted the results of Hauber’s genetic testing and that Dr. Samo supported the
award of an occupational disease disability pension based on the cancer and the denial of a
duty disability pension based on the back injury. Similarly, the Board noted Dr. James’s
attention to the results of the genetic testing and the minimal incidence of cancer in Hauber’s
family. Dr. James certified that Hauber met the requirements for a duty disability pension based
on Hauber’s cancer as well as an occupational disease disability pension. As to Dr. Kuznetsova,
the Board noted her repeated (erroneous) assertions that a genetic source for Hauber’s cancer
could not be ruled out because no genetic testing had been done. Her conclusion was not
definitive, stating only that she was “unsure” whether his cancer resulted from a single act of
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duty or from the cumulative effects of acts of duty, as would be necessary to qualify for a duty
disability pension.
¶ 19 The Board’s findings of fact included the following. Hauber had been in good health and
physical condition before he developed colon cancer, “in contrast to the factors typically
responsible for contributing to the development of colon cancer, such as poor diet, excessive
weight, alcohol consumption, tobacco use, or sedentary lifestyle.” All three IME physicians
found that Hauber’s cancer was permanently disabling. Dr. James had opined that Hauber’s
cancer met the causation requirements for not only an occupational disease disability pension
(a documented association between the disease and his service as a firefighter) but also a duty
disability pension, as it was “medically possible” that his cancer resulted from the performance
of an act of duty or from the cumulative effects of acts of duty. Dr. Samo did not opine on
whether Hauber’s cancer met the requirements for a duty disability pension but did find that it
“arose as the result of his service as a firefighter/paramedic,” based on studies showing a
correlation between firefighting and colon cancer.
¶ 20 The third physician, Dr. Kuznetsova, was unsure whether Hauber’s colon cancer was
caused by an act of duty or the cumulative effects of acts of duty. However, the Board
discounted her opinion, because it was based on the mistaken belief that Hauber had not
undergone genetic testing. The Board stated that it “assign[ed] more weight” to the reports and
opinions of Drs. Samo and James than Dr. Kuznetsova, as Drs. Samo and James more
accurately reviewed the records and were more definitive in their conclusions. Accordingly,
the Board found the conclusions of Drs. Samo and James to be “more persuasive and reliable”
than that of Dr. Kuznetsova regarding the cause of Hauber’s cancer. The Board further found
Dr. Samo’s review of the medical literature to be particularly reliable, as he was a principal
member of the National Fire Protection Association Technical Committee on Fire Service
Occupational Safety and Health and thus was “well-versed” on firefighting-related exposures.
As for the affidavit offered by the deputy fire chief, the Board found that it was primarily
anecdotal, and thus assigned it little weight.
¶ 21 The final paragraph of the Board’s conclusions of fact stated: “In considering the totality
of the evidence and resolving any conflicts therein, the Board hereby finds that Kim Hauber
has met her burden of proving that FF/PM Hauber died as a result of colon cancer, which he
developed as a result of his performance of an act of duty or the cumulative effects of acts of
duty as a firefighter/paramedic with the Village of Buffalo Grove Fire Department.”
¶ 22 The Board then set out several “conclusions of law.” It found that it had jurisdiction over
Kim Hauber’s application for survivor’s benefits. It further found that Hauber’s two
applications for disability pensions were moot because he had died before the Board could
make any final determination on those applications.
¶ 23 The Board noted that Kim Hauber bore the burden of proving that she qualified for
survivor’s benefits under section 4-114(i) of the Code. It found that, as Hauber met the service
requirements for an occupational disease disability pension and his cancer was of a type that
can be caused by exposure to heat, radiation, or a known carcinogen as defined by the IARC,
a rebuttable presumption arose that his colon cancer resulted from his service as a firefighter.
There was no evidence of a genetic or other cause that would rebut this presumption. The
Board concluded that, if Hauber had survived his colon cancer, he would have met his burden
of proving either a duty disability pension or an occupational disease disability pension based
on that cancer. He would not have met the requirements for a duty disability pension based on
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his back injury. By a 3 to 2 vote, the Board declared Hauber’s disability pension applications
moot and granted Kim Hauber’s application for survivor’s benefits at a duty pension level.
¶ 24 The Village filed an action for administrative review in the circuit court, arguing that the
Board had improperly conflated the statutory standards for an occupational disease pension
and a duty disability pension and had essentially applied the occupational disease statute’s
rebuttable presumption of causation to the consideration of whether Hauber’s colon cancer had
been caused by an act of duty or the cumulative effects of acts of duty. The Village also argued
that the Board should not have found Hauber’s two disability applications moot and that the
evidence at most supported only an occupational disease pension. After briefing and oral
argument, the circuit court affirmed the Board’s decision. It viewed the Board’s finding that
Hauber’s cancer met the standard for an occupational disease pension as having been made in
the alternative in case the duty pension was reversed on appeal. The Board applied the
rebuttable presumption of causation in this alternative analysis, but not in its consideration of
Hauber’s eligibility for a duty disability pension. The court found that the Board did not act
improperly in mooting Hauber’s pension applications. The court found that the Board’s
decision was adequately supported by the evidence, as the decision was supported by the IME
reports, medical literature, and evidence that Hauber was exposed to smoke and other noxious
materials through his 23 years of service as a firefighter and his participation in 127 emergency
fire calls. The Village now appeals that ruling.
¶ 25 II. ANALYSIS
¶ 26 In an administrative review case, the appellate court reviews the decision of the agency,
not that of the trial court. Lindemulder v. Board of Trustees of the Naperville Firefighters’
Pension Fund, 408 Ill. App. 3d 494, 500 (2011). The Village argues that (1) the record does
not support the Board’s determination that Hauber’s cancer was caused by an act of duty or
the cumulative effects of acts of duty, (2) the lack of evidence of causation demonstrates that
the Board impermissibly applied the occupational disease statute’s presumption of causation,
and (3) the Board erred in declaring moot Hauber’s two disability pension applications. We
begin with the last of these arguments, as it is a preliminary issue. We will address the
applicable standard of review in the context of each argument.
¶ 27 A. Declaration of Mootness
¶ 28 The Village asserts that the Board erred in concluding that Hauber’s two applications for a
disability pension were moot, arguing that nothing in the applicable statutes mandates that
conclusion. The Village then argues that, because the applications were not moot, the Board
should first have addressed whether Hauber was eligible for a lower, nonduty pension under
the occupational disease statute. It argues that granting him such a pension would have
precluded his widow from obtaining the higher, duty pension benefits. The defendants counter
that the Board’s decision to treat Hauber’s two applications as moot was supported by section
4-110.1, which does not provide for benefits to a deceased firefighter, and they argue
strenuously that, even if such benefits had been granted, Hauber’s widow would have been
entitled to the higher, duty-level pension benefits based on section 4-114(i), which applies
“notwithstanding *** any other provision of this Article.” 40 ILCS 5/4-114(i) (West 2018).
¶ 29 A matter is moot if “ ‘no actual controversy exists or if events have occurred that make it
impossible *** to grant *** effectual relief.’ ” In re Marriage of Eckersall, 2015 IL 117922,
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¶ 9 (quoting In re Marriage of Peters-Farrell, 216 Ill. 2d 287, 291 (2005)). Rulings on
mootness are reviewed de novo. People v. Custer, 2019 IL 123339, ¶ 17 (claims of mootness
present questions of law, which are reviewed de novo).
¶ 30 Our review requires us to engage in statutory interpretation, the fundamental principles of
which are familiar. We must begin by examining the language of the statute, which is the most
reliable indicator of the legislature’s objectives in enacting a particular law. Yang v. City of
Chicago, 195 Ill. 2d 96, 103 (2001). The statutory language must be afforded its plain and
ordinary meaning, and where the language is clear and unambiguous we must apply the statute
without resort to further aids of statutory construction. In re Michael D., 2015 IL 119178, ¶ 9.
We will not depart from the plain language of a statute by reading into it exceptions,
limitations, or conditions that conflict with the express legislative intent. Id. “One of the
fundamental principles of statutory construction is to view all provisions of an enactment as a
whole,” and thus “words and phrases must be interpreted in light of other relevant provisions
of the statute.” J.S.A. v. M.H., 224 Ill. 2d 182, 197 (2007). Further, under the doctrine of
in pari materia, “where different statutes touch on the same or related subject matter, we
consider them together so as to render a harmonious result.” State Farm Mutual Automobile
Insurance Co. v. Burke, 2016 IL App (2d) 150462, ¶ 39.
¶ 31 The Board found that Hauber’s death made it impossible to grant him effective relief on
his two pending disability pension applications, as Hauber could no longer receive any benefits
even if his applications were granted. The Village argues that Hauber’s death did not render
his application for an occupational disease disability pension moot because his widow could
receive survivor’s benefits once his application was granted. In support, the Village points to
the following language in section 4-110.1, the occupational disease statute: “If a firefighter
dies while still disabled and receiving a disability pension under this Section, the disability
pension shall continue to be paid to the firefighter’s survivors ***.” 40 ILCS 5/4-110.1 (West
2018).
¶ 32 The Village’s reading of this statute is contrary to its plain language. Section 4-110.1
provides that a firefighter’s survivors may receive a continuation of the deceased firefighter’s
occupational disease disability pension if the firefighter dies while (a) still disabled and (b)
receiving such a pension. Here, however, the second of these requirements was not met,
because Hauber was not “receiving a disability pension” at the time of his death—his
application was still pending before the Board due to the lack of a third IME report. Section 4-
110.1 does not state that a disability pension must be paid to a firefighter’s survivors even if
the firefighter’s occupational disease disability pension application was still pending at the
time of his or her death. We will not read such a requirement into the statute. See Michael D.,
2015 IL 119178, ¶ 9.
¶ 33 The Village argues that our reading of section 4-110.1 is unduly narrow and could prevent
a firefighter’s estate from receiving disability benefits accruing prior to the firefighter’s death
for which the firefighter would otherwise have qualified. Our decision today should not be
construed as supporting this result. We hold only that, in the present circumstances, where
neither the deceased firefighter’s surviving spouse nor the firefighter’s estate sought an award
of predeath benefits and the surviving spouse instead filed a separate application for survivor’s
benefits, nothing in section 4-110.1 compelled the Board to proceed on the deceased
firefighter’s pending disability pension applications rather than the surviving spouse’s
application.
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¶ 34 In light of our conclusion that the Board was permitted to treat Hauber’s occupational
disease disability pension application as moot, we need not address the parties’ arguments
regarding the interaction between sections 4-110.1 and 4-114(i) of the Code.
¶ 35 B. Sufficiency of the Evidence of Causation
¶ 36 Having concluded that the Board did not err in proceeding only on the widow’s application
for survivor’s benefits, we turn to the primary issue on appeal: whether the Board’s decision
to grant that application was supported by sufficient evidence of causation. The Village argues
that the award of survivor’s benefits based on a duty pension requires evidence that the
disabling condition (here, colon cancer) was caused by a specific, identifiable act or acts of
duty, not simply a general correlation between a firefighter’s service and his disabling
condition. The defendants respond that the evidence amply supports the Board’s determination
that Hauber’s colon cancer was the result of “the cumulative effects of acts of duty” and charge
that the Village’s argument is merely an improper request that this court reweigh the evidence.
¶ 37 1. Standard of Review
¶ 38 Whether the evidence supports a pension board’s determination to grant or deny an
application for a duty pension is a question of fact, and it is therefore subject to the manifest
weight of the evidence standard of review. Wade v. City of North Chicago Police Pension
Board, 226 Ill. 2d 485, 505 (2007); Marconi v. Chicago Heights Police Pension Board, 225
Ill. 2d 497, 534 (2006) (per curiam); see also Covello v. Village of Schaumburg Firefighters’
Pension Fund, 2018 IL App (1st) 172350, ¶ 42 (whether an act of duty caused or contributed
to a firefighter’s disability is treated as a factual question; collecting cases). “An administrative
agency decision is against the manifest weight of the evidence only if the opposite conclusion
is clearly evident.” Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d
76, 88 (1992). “In examining an administrative agency’s factual findings, a reviewing court
does not weigh the evidence or substitute its judgment” for that of the agency. City of Belvidere
v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998). Thus, “[t]he mere fact that
an opposite conclusion is reasonable or that the reviewing court might have ruled differently
will not justify reversal of the administrative findings.” Abrahamson, 153 Ill. 2d at 88. Rather,
“[i]f the record contains evidence to support the agency’s decision, that decision should be
affirmed.” Marconi, 225 Ill. 2d at 534.
¶ 39 The Village argues that causation in this case was not a strictly factual determination and
instead involved a mixed question of fact and law, i.e., whether a given set of facts (regarding
Hauber’s cancer) met a statutory standard (that it “result[ed] from *** the cumulative effects
of acts of duty”). Mixed questions of fact and law are subject to the slightly less deferential
“clearly erroneous” standard of review. Belvidere, 181 Ill. 2d at 205. Under this standard, a
court must affirm the Board’s decision unless, after reviewing the entire record, it is “ ‘left
with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 40 In support of this argument, the Village cites Belvidere and two appellate cases: Wilfert v.
Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 318 Ill. App. 3d 507,
514 (2000), and Virden v. Board of Trustees of the Firefighters Pension Fund, 304 Ill. App. 3d
330, 335 (1999). In Belvidere, the issue was whether a municipality’s decision to contract out
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for paramedic services was a mandatory subject of collective bargaining because it fell within
a statutory definition, i.e., decisions that “ ‘affect[ ] wages, hours and other terms and
conditions of employment.’ ” Belvidere, 181 Ill. 2d at 203 (quoting 5 ILCS 315/4 (West 1994)).
Because the labor relations board had engaged in statutory interpretation, its decision was
subject to the “clearly erroneous” standard. Id. at 205.
¶ 41 In Wilfert, the pension board’s decision involved a legal issue because, to determine
whether a firefighter remained disabled, the board was required to construe and apply the term
“disability,” a statutory term “subject to legal interpretation.” Wilfert, 318 Ill. App. 3d at 514.
The appellate court also found that the trial court had committed legal error by shifting the
burden of proof from the employer to the firefighter. Id. at 518. Virden similarly involved a
legal error, where the trial court mistakenly applied the definition of “act of duty” from a police
pension statute to a case involving a firefighter, who was subject to a different statutory
definition of “act of duty.” Virden, 304 Ill. App. 3d at 335.
¶ 42 The Village argues that this case similarly presents a mixed question of fact and law
because it involves interpreting the statutory language that the disabling condition must “result
*** from the cumulative effects of acts of duty,” and thus the “clearly erroneous” standard
applies. We note, however, that the Village also asserts that the Board’s decision should be
reversed under either standard.
¶ 43 We find the cases cited by the Village inapposite, as they do not relate to the issue of
causation, which is a factual issue. Covello, 2018 IL App (1st) 172350, ¶ 42; Lindemulder, 408
Ill. App. 3d at 500. Further, the Village’s argument relates to the sufficiency of the evidence,
which our supreme court has held is subject to the manifest weight of the evidence standard.
Wade, 226 Ill. 2d at 505; Marconi, 225 Ill. 2d at 534. Finally, unlike in Belvidere, Wilfert, and
Virden, the Board’s determination in this case did not involve any issues of statutory
interpretation. Thus, we agree with the defendants that the Board’s decision was a purely
factual determination, subject to the manifest weight standard of review.
¶ 44 2. Evidence of Causation—What Must Be Shown?
¶ 45 Kim Hauber applied for survivor’s duty pension benefits under section 4-114(i), which
provides such benefits when “a firefighter *** dies *** as a result of sickness, accident, or
injury incurred in or resulting from the performance of an act of duty or from the cumulative
effects of acts of duty.” (Emphasis added.) 40 ILCS 5/4-114(i) (West 2018). 1 To be entitled to
a duty pension, a firefighter need not show that his or her job duties were the sole or primary
cause of the disabling condition; the causation requirement is met if an act of duty (or the
cumulative effects of acts of duty) contributed to or exacerbated the disability. Prawdzik v.
Board of Trustees of the Homer Township Fire Protection District Pension Fund, 2019 IL App
(3d) 170024, ¶ 40; Scepurek v. Board of Trustees of the Northbrook Firefighters’ Pension
Fund, 2014 IL App (1st) 131066, ¶ 27; Village of Oak Park v. Village of Oak Park Firefighters
Pension Board, 362 Ill. App. 3d 357, 371 (2005).
¶ 46 Although section 4-110 (which governs duty pensions for firefighters in smaller
municipalities like the Village) does not define the term “act of duty,” courts have held that it
1
As noted (supra ¶ 13), this section mirrors the language of section 4-110, which governs a
firefighter’s application for a duty disability pension. The parties agree that the case law involving
section 4-110 applies to section 4-114(i) cases.
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means the same thing as “act of duty” as defined in section 6-110 (40 ILCS 5/6-110 (West
2018)), a companion statute governing duty disability pensions for firefighters in large cities.
Jensen v. East Dundee Fire Protection District Firefighters’ Pension Fund Board of Trustees,
362 Ill. App. 3d 197, 203-04 (2005). Under that definition, an “act of duty” includes (1) “[a]ny
act imposed on an active fireman by the ordinances of a city,” (2) any act imposed “by the
rules or regulations of its fire department,” or (3) “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 2018). During the circuit court proceedings, the Village agreed that
the term “act of duty” encompasses “essentially any acts that the firefighter engages in on the
job,” and the Village does not dispute that, at a minimum, the 127 documented fire calls that
Hauber participated in were “acts of duty.” Thus, the question is whether any evidence in the
record supports the Board’s determination that the cumulative effects of Hauber’s acts of duty
caused or contributed to his colon cancer. See Marconi, 225 Ill. 2d at 534 (“If the record
contains evidence to support the agency’s decision, that decision should be affirmed.”).
¶ 47 The Village’s overarching argument is that an award of a duty pension is only proper when
there is evidence that the disabling condition was caused by a specific act of duty or the
cumulative effects of acts of duty and that no such evidence was considered by the Board or
the IME physicians. Instead, it asserts, the Board improperly relied on assumptions that Hauber
was exposed to carcinogenic materials simply by virtue of his firefighting service. The Village
argues vigorously that a disease arising from the work conditions inherent in firefighting is not
the same as a “sickness *** resulting from *** the cumulative effects of acts of duty.” To
support this argument, it cites Covello and Rokosik v. Retirement Board of the Firemen’s
Annuity & Benefit Fund of Chicago, 374 Ill. App. 3d 158 (2007).
¶ 48 Covello involved a firefighter’s application for a duty disability pension based on an
incident that allegedly exacerbated his post-traumatic stress disorder (PTSD) to the point that
it became disabling. The pension board denied the application. Covello, 2018 IL App (1st)
172350, ¶ 36. In concluding that the pension board’s decision was not against the manifest
weight of the evidence, the appellate court found that Covello had not shown a causal link
between his disabling PTSD and the one work-related incident he identified, which had
occurred several years earlier and after which he had continued to work. Id. ¶ 49. In citing
Covello, the Village emphasizes the appellate court’s additional finding that, although Covello
had responded to a number of other calls that were “indisputably traumatic” (id.) and although
firefighters in general were “repeatedly exposed to stressful and gruesome events,” “the stress
inherent in the job” could not serve as the basis for duty disability benefits (id. ¶ 50).
¶ 49 We do not find this statement in Covello persuasive, for several reasons. To begin with, the
statements emphasized by the Village were not necessary to the appellate court’s holding. Once
the court determined that the evidence supported the Board’s finding of no causal link between
the one work-related incident Covello identified and the fact that his PTSD eventually became
disabling, under the manifest weight of the evidence standard, the court was bound to affirm
the pension board’s decision. That is, even if the court had found that other calls to which
Covello had responded exacerbated his PTSD, at most that would have provided conflicting
evidence that the pension board was permitted to weigh and resolve. See Abrahamson, 153 Ill.
2d at 88. The court still would have been correct to affirm the pension board, because some
evidence in the record supported the denial of a duty disability pension. See Marconi, 225 Ill.
2d at 534.
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¶ 50 Moreover, the Covello court cited no support for its statement that conditions inherent in
the job could not serve as a basis for a duty pension, and that statement is contrary to other
case law. See Lindemulder, 408 Ill. App. 3d at 501 (“a line-of-duty pension may be awarded
if the [applicant] proves that the exposure to smoke, fumes, or some other condition of his
employment exacerbated his condition”); Scalise v. Board of Trustees of the Westchester
Firemen’s Pension Fund, 264 Ill. App. 3d 1029, 1033 (1993) (same). Covello simply did not
grapple with the fact that a duty disability pension can be appropriate not only where the
disabling condition results from a single, identifiable “act of duty” but also where it arises from
the “cumulative effects of acts of duty.” 40 ILCS 5/4-110 (West 2018). For all of these reasons,
we do not find the Village’s reliance on Covello to be well founded.
¶ 51 Instead, when considering the cumulative impact of repeated exposures to injurious
conditions, we find Oak Park more instructive. In that case, a firefighter’s hearing deficit
became disabling, and he applied for a duty disability pension. The pension board heard
conflicting evidence, including measurements of decibel levels for noise in the fire trucks when
the sirens were on, medical records from treating physicians showing hearing decline over
several years, and IME reports opining that the hearing loss was most likely genetic in nature,
as several of the firefighter’s family members had also experienced the onset of hearing loss
at about the same age. Oak Park, 362 Ill. App. 3d at 359-63. The pension board granted the
duty pension, finding that (1) the firefighter had presented sufficient evidence that his hearing
loss was caused by the cumulative effects of acts of duty and, (2) even if the hearing loss was
hereditary in origin, it was exacerbated by exposure to noise from firefighting equipment and
sirens. Id. at 364. On review, the appellate court affirmed, noting the conflicts in the evidence
and finding that the pension board’s decision was not against the manifest weight of the
evidence. Id. at 373. As the issue was whether the firefighter’s hearing loss was exacerbated
by the cumulative effects of acts of duty, the court did not require the firefighter to identify
specific acts of duty that caused or contributed to his hearing loss. Applying this approach here,
we find that the Board did not err by declining to require the widow to identify specific acts of
duty that contributed to the development of Hauber’s cancer.
¶ 52 The Village’s second argument on this front is that the standards for awarding a duty
pension under section 4-110 are designed to be different than those for awarding an
occupational disease pension under section 4-110.1 but the IME reports and the Board’s
decision improperly conflated those two standards. In support, the Village cites Rokosik (and
a supreme court decision, Bremer v. City of Rockford, 2016 IL 119889, that agreed with
Rokosik’s reasoning on this point).
¶ 53 Rokosik is distinguishable on its facts. Rokosik involved the widows of two Chicago
firefighters who had applied for occupational disease disability pensions pursuant to section 6-
151.1 (40 ILCS 5/6-151.1 (West 2000)). The firefighters did not seek duty disability pensions,
and no evidence was taken regarding whether they qualified for duty disability pensions. The
firefighters were granted occupational disease disability pensions and received those benefits
through their deaths. However, after the firefighters’ deaths, the widows claimed that they
should receive survivor’s benefits at the higher, duty level. Rokosik, 374 Ill. App. 3d at 159-
61. The widows argued 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” and that the occupational disease disability and duty
disability statutes were “identical in purpose.” Id. at 168. The pension board ruled against them
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on this point, and the appellate court affirmed, finding that the two statutes did not have the
same purposes or requirements for eligibility and that an award of an occupational disease
pension was not equivalent to an award of a duty pension. Id. at 171. Importantly, however,
although the appellate court held that proof of qualification for an occupational disease pension
was not sufficient in itself to show qualification for a duty pension, it declined to hold that “a
widow of a firefighter who was receiving an occupational disability benefit at the time of his
death *** may never qualify for a duty annuity,” and it rejected any such rule. Id.
¶ 54 Rokosik, in which the applications were for occupational disease benefits only and the
pension boards never considered or ruled on whether the firefighters qualified for duty benefits,
is distinguishable from this case. Here, the Board was considering an application for duty
benefits, and it reviewed the evidence and found that the requirements for such benefits in
Rokosik were met. We also observe that the language of the provision governing survivor’s
benefits (40 ILCS 5/6-140 (West 2004)) differs in important ways from the language of section
4-114(i), the provision applicable here.
¶ 55 We recognize the principle expressed in Rokosik and affirmed in Bremer: that the two
statutes serve different goals and have different eligibility requirements and a firefighter’s
qualification for an occupational disease pension is not, by itself, sufficient to support the
award of a duty pension. Rokosik, 374 Ill. App. 3d at 171; Bremer, 2016 IL 119889, ¶ 32.
Among other reasons, under the occupational disease statute, a firefighter with cancer (such as
Hauber) may be entitled to a presumption that his cancer was caused by his work as a
firefighter, while no such presumption applies to duty pension cases. The issue is the relevance
of this principle here.
¶ 56 The Village concedes that Hauber would have been able to meet the requirements for an
occupational disease pension simply on the basis of his long firefighting service and the
medical literature linking that service and colon cancer, but it argues that an applicant should
have to show something more to qualify for the higher, duty pension. The Village argues that
here this “something” must be a link between Hauber’s cancer and an identifiable act or acts
of duty.
¶ 57 We reject this argument because it ignores the statutory language authorizing a duty
pension for a condition that is caused or exacerbated by the “cumulative effects of acts of
duty.” The common meaning of that term indicates that a duty pension can be awarded for a
condition that emerges slowly over a period of years, without an identifiable triggering
incident. This common-sense reading of the statutory language is supported by ample case law.
See Oak Park, 362 Ill. App. 3d at 372 (award of duty pension was supported by IME
physician’s opinion that firefighter’s hearing loss was “ ‘more likely than not’ ” caused or
exacerbated by noise levels common to firefighting); Prawdzik, 2019 IL App (3d) 170024,
¶¶ 53-58 (affirming grant of duty pension for PTSD that became disabling over time and
criticizing the argument that inherent conditions of firefighting cannot serve as basis for duty
disability pension); see also Lindemulder, 408 Ill. App. 3d at 501 (award of duty pension is
justified where the applicant can show that exposure to smoke and noxious fumes “or some
other condition of his employment exacerbated his condition”); Scalise, 264 Ill. App. 3d at
1033 (same).
¶ 58 Statutory language must be afforded its plain and ordinary meaning (In re Michael D., 2015
IL 119178, ¶ 9) and interpreted so as to avoid rendering any part of the statute meaningless or
superfluous (Blum v. Koster, 235 Ill. 2d 21, 29 (2009)). Here, the term “cumulative effects of
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acts of duty” must be given its ordinary meaning and may not be read so narrowly as to remove
that term from the statute. Just as the firefighter in Oak Park was not required to identify any
particular act or acts of duty that caused or exacerbated his hearing loss, Hauber was not
required to point to one or more specific acts of duty as causing or contributing to his cancer.
¶ 59 Instead, we find that the best way to ensure that the award of a duty pension is justified is
to apply the statutory standards for such a pension, without reference to whether the evidence
might also justify the award of some different pension. Here, the Board’s decision was
supported by the expert opinions contained in the IME reports as well as by evidence that
Hauber responded to at least 127 fire calls. Although the fire call reports did not document
Hauber’s exact role and exposure at each fire, he was expected to be prepared to confront
various noxious and carcinogenic substances at any fire. Further, members of the Board had
experience firefighting and were well able to evaluate for themselves the likely level of
Hauber’s exposure during those calls. The record also contained medical evidence supporting
the finding that the cause of Hauber’s cancer likely was work-related, including test results
that failed to find any genetic basis for the cancer and medical records showing that, apart from
his cancer, Hauber was in good health, did not smoke, and drank alcohol only moderately. The
Village attacks this evidence in various ways, but none is persuasive.
¶ 60 Unlike in many cases in which courts have overturned pension boards’ determinations,
here none of the IME reports were contrary to the Board’s finding that the cumulative effects
of Hauber’s acts of duty over his 23 years as a firefighter caused or contributed to his colon
cancer. Dr. James certified that it was medically possible that Hauber’s cancer resulted from
the cumulative effects of Hauber’s acts of duty. His opinion rested not only on the medical
studies he identified, which showed a “statistically significant excess risk for colon cancer in
firefighters with at least 20 years of service,” but also on Hauber’s medical records and the
lack of a genetic basis for Hauber’s cancer.
¶ 61 Dr. Samo did not opine directly on whether the cumulative effects of Hauber’s acts of duty
caused or contributed to his cancer. However, Dr. Samo did certify that Hauber’s cancer arose
“from service as a firefighter and/or paramedic” and that Hauber met the standard for an
occupational disease pension. While qualification for an occupational disease pension is not in
itself enough to meet the requirements for a duty pension (Rokosik, 374 Ill. App. 3d at 171; see
also Bremer, 2016 IL 119889, ¶ 32), the evidence supporting the two may overlap. Thus, Dr.
Samo’s opinion that Hauber’s cancer most likely arose from his service as a firefighter was
relevant to the Board’s determination of whether Hauber qualified for a duty pension and
supports that determination. Further, the Board placed particular weight on Dr. Samo’s opinion
that a causal link was supported by the medical literature, because of his professional
qualifications and particular expertise in firefighting-related exposures to noxious and
potentially carcinogenic substances.
¶ 62 Even Dr. Kuznetsova, whose conclusions were the least definitive, did not certify that
Hauber’s cancer was not caused by his firefighting duties; she stated only that she was “unsure”
whether such a causal link existed. And the Board’s decision to give less weight to her opinion
was reasonable, as she failed to note Hauber’s genetic testing and indeed appeared to
mistakenly rely on the purported lack of such testing.
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¶ 63 The Village criticizes the IME reports as being based on conflicting medical studies. 2
However, these criticisms go to the weight that should be given the physicians’ opinions, not
to their admissibility. It was within the province of the Board to resolve any criticisms
regarding the medical literature, and we conclude that the Board’s careful review of that
literature and the IME reports is not so lacking in foundation as to be reversible. Belvidere, 181
Ill. 2d at 204.
¶ 64 The Village also attacks the evidence documenting Hauber’s response to at least 127 fire
calls. It first asserts that this evidence was not “pointed to or relied upon” by the Board or the
IME physicians. The Village is correct that, although the IME reports and the Board’s decision
mentioned Hauber’s overall physical condition and his years of service as a firefighter, they
did not explicitly refer to the 127 fire calls to which Hauber responded. But the records of these
calls were in the administrative record, which the physicians had access to in rendering their
opinions and which the Board reviewed prior to issuing its decision. Further, the Board’s
decision repeatedly referred to “Board Exhibit No. 8,” materials produced by the Village’s fire
department that included the 127 fire call reports. There is no support for the Village’s assertion
that these reports were not considered by the Board in reaching its decision to grant duty
pension benefits. And while it might have been better practice for the Board to have explicitly
noted the reports, our analysis is not confined to those portions of the record specifically
mentioned in the Board’s decision. Rather, we may affirm an agency’s decision on any basis
appearing in the record. Brazas v. Property Tax Appeal Board, 339 Ill. App. 3d 978, 984
(2003).
¶ 65 The Village also argues that the fire call reports do not constitute evidence of actual
exposure to noxious or carcinogenic substances, because the reports lack detail about Hauber’s
level of participation in fighting each of these fires. We disagree. Hauber’s documented
participation in 127 fire calls is circumstantial evidence of exposure to noxious and
carcinogenic substances. That is to say, while the fire reports do not directly establish such
exposure, they support the reasonable inference of exposure. They are not mere speculation.
Any arguments about the strength or weakness of that evidence go to the weight it should be
given, not whether it is evidence at all.
¶ 66 To summarize the evidence, two of the three IME reports supported a causal connection
between Hauber’s cancer and the cumulative effects of his acts of duty. The third IME report,
which neither supported nor contradicted that conclusion, was appropriately discounted given
the factual errors that it contained. Further, the record contained at least some evidence of
Hauber’s exposure to noxious and carcinogenic substances, as well as genetic and other
medical evidence showing a decreased likelihood that Hauber’s cancer arose independent of
his service as a firefighter. In light of this evidence, the Board’s decision to grant Kim Hauber
survivor pension benefits at the duty level was not against the manifest weight of the evidence.
2
At the Board hearing, the Village did not object to the admission of the IME physicians’ opinions
regarding the medical literature, and thus it may not now argue that they were hearsay. See Jackson v.
Board of Review of the Department of Labor, 105 Ill. 2d 501, 508-09 (1985) (“when hearsay evidence
is admitted without an objection, it is to be considered and given its natural probative effect”; such
evidence “may be considered by the administrative body and by the courts on review”).
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¶ 67 C. Nonapplication of the Rebuttable Presumption
¶ 68 Finally, the Village argues that the Board erroneously applied the occupational disease
pension statute’s rebuttable presumption of causation (see 40 ILCS 5/4-110.1 (West 2018)) in
evaluating whether the standards for a duty pension were met. The Village’s argument rests on
(1) the Board’s references to findings related to occupational disease benefits in part of its
decision and (2) the Village’s belief that the Board must have applied the presumption, because
otherwise the evidence of causation was insufficient to support a duty pension.
¶ 69 As to the first, the Board responds that its findings related to the occupational disease
statute were included in the alternative, so it would not have to conduct a new hearing if a court
later overturned its award of duty disability pension benefits. Our review of the Board’s
decision supports this assertion. And we have already rejected the Village’s second contention,
that evidence of causation was lacking. Accordingly, the record does not support this
assignment of error.
¶ 70 III. CONCLUSION
¶ 71 For the reasons stated, the judgment of the circuit court of Lake County and the decision
of the Board are affirmed.
¶ 72 Affirmed.
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