dissenting:
I respectfully dissent.
It is well settled that a fireman is not entitled to a pension in the first instance under either section 4 — 110 or 4 — 111 of the Illinois Pension Code (Ill. Rev. Stat. 1973, ch. 108M, pars. 4 — 110 and 4 — 111) solely by reason of the fact that he is no longer able to perform the duties of a fire fighter, but rather he must be disabled for service in the fire department in any full-time position, including fire inspector. (Peterson v. Board of Trustees, 54 Ill. 2d 260, 296 N.E.2d 721 (1973); Mulder v. Board of Trustees, 103 Ill. App. 2d 174, 242 N.E.2d 627 (1968).) Consequently, if there is sufficient evidence before the Board to support a finding that a fireman is capable of performing the duties of any full-time position of service for the department which is available, the Board can deny the fireman a pension and such decision must be affirmed on appeal. (See Peterson and Mulder.) However, as I see it, the question presented here is whether the Board, having once granted a pension, can properly terminate that pension if it subsequently gains evidence to support the conclusion that the fireman can perform an available job with the department involving lighter duties than fighting fire. I would hold that it can.
At the time of the Board’s decision, section 4 — 112 of the Code (Ill. Rev. Stat. 1973, ch. 108/2, par. 4 — 112), dealing with cessation of pensions, read in pertinent part as follows:
“Upon satisfactory proof being made to the Board that a fireman on the disability pension roll has recovered from his disability, the Board shall order that his pension cease.” (Emphasis added.)
It is the duty of the court to enforce the law as enacted according to its plain and unmistakable provisions. (Peterson; Stiles v. Board of Trustees, 281 Ill. 636, 641-42, 118 N.E. 202 (1977).) The instant section does not require proof that the fireman has fully recovered from, or is no longer subject to, the original mental or physical condition which afflicted him, but rather that there be proof that he has recovered from his disability. As definitively interpreted in Peterson, disability under the Code is equivalent to an inability to serve in any full-time position with the fire department. In view of these facts, any interpretation of this section other than that the Board is empowered to revoke a pension upon subsequent evidence of the fireman’s capacity to perform a full-time light duty position which is available would be unwarranted and an exercise in judicial legislation.
The current version of section 4 — 112 (Ill. Rev. Stat. 1977, ch. 10812, par. 4 — 112, as amended by Pub. Act 79-1187) provides for yearly medical examinations of a fireman retired for disability as a check of the continuance of his disability for service as a fireman. Both versions of this provision demonstrate that the finding of a “permanent” disability, required by statute before commencing a pension, is subject to alteration upon discovery of evidence refuting the prior determination of disability for service.
In the present case, there is no indication in the record that any evidence with respect to O’Brien’s ability to perform light work was considered prior to the commencement of his pension in July 1972. It was, however, undisputed at all times that he was unfit for fighting fires. It is my belief that under the Code’s scheme for cessation of a pension upon one’s recovery from disability that the Board’s finding that O’Brien was disabled for service on evidence directed solely towards his capacity for current fire fighting duties does not estop the Board from terminating his pension upon sufficient subsequent proof of his ability to perform service in the department of a light duty nature.
It is fundamental that the findings and conclusions of the Board on questions of fact are prima facie true and correct (Ill. Rev. Stat. 1973, ch. 110, par. 274; Peterson), and that on review the court’s duty is to ascertain if the findings and decision of the administrative agency are against the manifest weight of the evidence. Peterson; Cohn v. Smith, 14 Ill. 2d 388, 395, 153 N.E .2d 83 (1958).
There was sufficient evidence in the record to support the conclusion of the Board that a position as inspector or dispatcher was available to O’Brien and that he was physically capable of performing the duties of such positions. The conclusions of the Board on these issues should therefore not be disturbed. In addition to the inference to be derived from the December 1972 medical report of Dr. Ezenwa, as well as others apparently considered by the Board, substantial support for the Board’s finding as to O’Brien’s capacity to fill such positions is found in the evidence relating to his job with the Fire Commission. O’Brien drove his personal auto substantial distances to and from Springfield in order to engage in that job, which required his operation of a push-button dictaphone (see Peterson, where similar evidence of a fireman’s employment duties were considered as supportive of a Board’s decision). It thus appears that O’Brien is presently gainfully employed in performing the very type of duty upon which he bases his claim to entitlement to a disability pension.
I would affirm the judgment of the trial court.