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