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                                      Appellate Court                         Date: 2019.04.16
                                                                              09:09:53 -05'00'




                 Frisby v. Village of Bolingbrook Firefighters’ Pension Fund,
                                   2018 IL App (2d) 180218



Appellate Court           BETHANY FOY FRISBY, Plaintiff-Appellee, v. THE VILLAGE OF
Caption                   BOLINGBROOK FIREFIGHTERS’ PENSION FUND, THE
                          BOARD OF TRUSTEES OF THE VILLAGE OF BOLINGBROOK
                          FIREFIGHTERS’ PENSION FUND, and THE VILLAGE OF
                          BOLINGBROOK, Defendants-Appellants.



District & No.            Second District
                          Docket No. 2-18-0218


Filed                     December 31, 2018



Decision Under            Appeal from the Circuit Court of Du Page County, No. 17-MR-667;
Review                    the Hon. Paul M. Fullerton, Judge, presiding.



Judgment                  Reversed.
                          Board decision confirmed.


Counsel on                Jeffrey A. Goodloe, of Puchalski Goodloe Marzullo, LLP, of
Appeal                    Northbrook, for appellants Village of Bolingbrook Firefighters’
                          Pension Fund and Board of Trustees of the Village of Bolingbrook
                          Firefighters’ Pension Fund.

                          Kenneth M. Florey and M. Neal Smith, of Robbins Schwartz Nicholas
                          Lifton & Taylor, Ltd., of Bolingbrook, for other appellant.

                          Thomas W. Duda, of Palatine, for appellee.
     Panel                     JUSTICE JORGENSEN delivered the judgment of the court, with
                               opinion.
                               Justices Burke and Hudson concurred in the judgment and opinion.


                                                 OPINION

¶1         After a disabling injury, plaintiff, Bethany Foy Frisby, a firefighter for defendant the
       Village of Bolingbrook (Village), applied for a line-of-duty disability pension or, alternatively,
       a not-on-duty pension. Defendant the Board of Trustees of the Village of Bolingbrook
       Firefighters’ Pension Fund (Board) denied plaintiff’s request for a line-of-duty pension but
       granted her request for a not-on-duty pension. Plaintiff sought review in the trial court, which
       found that she was entitled to line-of-duty benefits and reversed the Board’s decision.
       Defendants, the Village of Bolingbrook Firefighters’ Pension Fund, the Board, and the
       Village, appeal. For the following reasons, we reverse the trial court’s judgment and confirm
       the Board’s decision.

¶2                                          I. BACKGROUND
¶3          The underlying facts are uncontested. Since 2006, plaintiff has been a full-time firefighter
       for the Village. Pursuant to the relevant collective bargaining agreement (CBA), plaintiff
       worked 24-hour shifts, followed by 48 hours off. Her workday began at 7 a.m. and ended the
       following day at 7 a.m.
¶4          On December 28, 2013, plaintiff drove her own vehicle to work and parked in the
       fire-station parking lot. She arrived at 6:40 a.m. Plaintiff kept her firefighter uniform at the fire
       station, as was allowed but not required, and she planned to change before commencing her
       shift. As plaintiff exited her vehicle, she slipped on black ice. Her left shoulder struck her
       vehicle’s running board and the ground. Plaintiff immediately felt throbbing and pain in her
       shoulder, but she entered the station to prepare for her shift. While at work, plaintiff performed
       an ambulance check, installed gear lockers, and drove an ambulance on a fire call. Plaintiff felt
       pain in her left arm and told her partner, who then notified plaintiff’s supervisor. The
       supervisor ordered plaintiff to go to the emergency room, and plaintiff left her shift to do so.
¶5          Ultimately, after a period of treatment, plaintiff applied for a line-of-duty disability
       pension or, alternatively, a not-on-duty pension. On June 21, 2016, and January 26, 2017, the
       Board held hearings on plaintiff’s application. At the hearings, plaintiff presented evidence
       concerning her visits to various treatment providers, multiple doctors’ opinions, and reports
       concerning surgery, therapy, and other treatments plaintiff received. We do not recount that
       evidence here, as it is now undisputed that (1) plaintiff injured her shoulder when she fell in the
       fire-station parking lot and (2) plaintiff is permanently disabled within the meaning of the
       Illinois Pension Code (40 ILCS 5/4-112 (West 2012)).
¶6          Additional evidence plaintiff introduced at the hearings included her performance reviews,
       which routinely assessed her punctuality and praised her consistent habit of being early to
       work and ready to start her shift on time. Further, plaintiff introduced a February 2, 2015,
       e-mail from the Village’s Superintendent of Public Safety, Tom Ross, which was sent to all
       firefighters and summarized his reflections and observations from recent station visits,


                                                     -2-
     including: “If you’re not early—you’re late. I appreciate you looking out for each other at shift
     changes.”
¶7        On January 26, 2017, the Board denied plaintiff’s request for a line-of-duty pension (65%
     of her final salary) but granted her request for a not-on-duty pension (50% of her final salary)
     (id. § 4-111). On April 17, 2017, the Board issued its written decision, explaining that it found
     that plaintiff was not injured while performing an “act of duty,” as that expression is defined in
     the Pension Code. Specifically, it found that, when she fell at 6:40 a.m., plaintiff was not yet on
     duty, as her shift did not commence until 7 a.m., and, further, that she was not performing an
     act for the direct purpose of saving the life or property of another. The Board also found that
     plaintiff was not on an assignment approved by the chief and related to fire protection of the
     Village, nor was she performing an act imposed by any Village ordinance or fire-department
     rule or regulation. “[Plaintiff] was merely getting out of her personal vehicle [20] minutes
     before her shift started when she slipped on a patch of ice and fell.” The Board rejected
     plaintiff’s argument that Ross’s statement in his e-mail, “If you’re not early—you’re late,”
     constituted a formal rule or regulation imposing a requirement that firefighters show up early
     for their shifts:
                  “First, it is axiomatic that if a person is not early or exactly on time for work then
              that person is late. The email does not impose a rule or regulation requiring a person to
              show up early, but rather encourages a person to be on time in accordance with the
              provision set forth in the CBA. Superintendent Ross cannot, through an email,
              unilaterally change the terms and conditions of the firefighters’ employment as set
              forth in the CBA. Additionally, Superintendent Ross’ email simply set forth his
              ‘take-aways’ or observations since becoming superintendent. The Pension Board notes
              that Superintendent Ross’ email also states that firefighters ‘. . . enjoy your job—try to
              have a little fun at work.’ If the Pension Board accepts [plaintiff’s] argument that the
              email is a rule or regulation of the Fire Department, then getting injured while trying to
              ‘have a little fun at work’ would constitute an ‘act of duty.’ Additionally, if the Pension
              Board accepts [plaintiff’s] argument then countless off-duty activities preceding a
              firefighter’s shift that resulted in injuries could potentially constitute ‘acts of duty’ for
              purposes of line[-]of[-]duty disability pension claims. The Pension Board rejects these
              expansive arguments.”
¶8        Plaintiff sought administrative review in the trial court. On January 3, 2018, the court
     reversed the Board’s decision. The court determined first that the sole issue presented was
     whether plaintiff’s injury occurred while she was performing an “act of duty” under the fire
     department’s rules and regulations. The court noted that “common sense dictates that in order
     to be ‘fully prepared, ready, and in uniform’ at the beginning of their shift, one would have to
     arrive to work, park a vehicle and walk into work prior to the beginning of the shift.”
     (Emphasis in original.) The court concluded that “[t]here must be some reasonableness to the
     time for arriving to work in order to be fully prepared and report for work at 7:00 a.m.—a
     requirement of [plaintiff’s] job.” The court took issue with defendants’ failure to agree that, if
     plaintiff’s injury had occurred one minute prior to her shift, she would be entitled to
     line-of-duty benefits. “If [plaintiff] was required to be fully prepared, ready and in uniform to
     begin her shift promptly at 7:00 a.m., yet also allowed to keep her uniform at the fire station,
     [plaintiff] obviously had to arrive within a reasonable time prior to the beginning of her shift to
     avoid violating a department rule or regulation.”


                                                   -3-
¶9         The court found that regular performance reviews evaluating plaintiff’s attendance and
       punctuality could create rules or regulations within the meaning of the Pension Code because
       they assessed her compliance with the fire department’s express written rules and regulations.
       The court then explained that, while there is a dearth of case law on this specific issue
       concerning a firefighter’s pension under the Pension Code, courts can look to the Illinois
       Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2016)) for aid in interpreting the
       Pension Code and that courts interpreting the Workers’ Compensation Act “have consistently
       understood that employment contemplates not only the scheduled time working, but also a
       reasonable time before beginning and after concluding scheduled work hours.” Thus, the court
       concluded plaintiff was attempting to comply with rules and regulations that she be prepared to
       begin her shift promptly at 7 a.m. and, as there was no way to comply with that requirement
       other than to show up at work at a reasonable time to prepare, she was entitled to line-of-duty
       benefits.
¶ 10       On March 12, 2018, the court denied defendants’ motion to reconsider. Defendants appeal.

¶ 11                                           II. ANALYSIS
¶ 12                                       A. Standard of Review
¶ 13       In an appeal for administrative review, we review the decision of the administrative
       agency, not the decision of the trial court, and only the record of the administrative
       proceedings. Lipscomb v. Housing Authority, 2015 IL App (1st) 142793, ¶¶ 11-16. “The
       applicable standard of review, which determines the degree of deference given to the agency’s
       decision, depends upon whether the question presented is one of fact, one of law, or a mixed
       question of law and fact.” AFM Messenger Service, Inc. v. Department of Employment
       Security, 198 Ill. 2d 380, 390 (2001). Factual findings are reviewed under the manifest-weight-
       of-the-evidence standard, whereas purely legal questions demand de novo review. Lipscomb,
       2015 IL App (1st) 142793, ¶ 16. However, where an agency’s decision involves a mixed
       question of law and fact, we will not reverse unless the decision is clearly erroneous, i.e.,
       unless we are left with a definite and firm conviction that a mistake has been committed.
       Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008).
       “Mixed questions of fact and law are questions in which the historical facts are admitted or
       established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
       standard, or to put it another way, whether the rule of law as applied to the established facts is
       or is not violated.” (Internal quotation marks omitted.) Id.
¶ 14       On appeal, the parties disagree on the appropriate standard of review, and indeed, both cite
       cases supporting their respective positions. For example, urging us to apply the clearly
       erroneous standard, defendants cite Howe v. Retirement Board of the Fireman’s Annuity &
       Benefit Fund, 2015 IL App (1st) 141350, ¶ 47, where the court applied that standard when the
       facts were undisputed and the question was whether a firefighter’s injury resulted from an act
       of duty. In contrast, however, plaintiff urges us to apply de novo review, citing Martin v. Board
       of Trustees of the Police Pension Fund, 2017 IL App (5th) 160344, ¶ 12, where the court
       applied that standard when the facts were undisputed and the issue was whether a police officer
       was injured while performing an act of duty. The Martin court determined that the issue turned
       on the interpretation of “act of duty” under the Pension Code, a question of law to be reviewed
       de novo.


                                                    -4-
¶ 15       Here, we believe that the clearly erroneous standard applies. We note that, although the
       facts might now be undisputed, they were not initially; the Board was tasked with considering
       whether plaintiff’s injury occurred when she fell in the parking lot or when installing lockers or
       performing other tasks during her shift. After weighing the evidence, the Board found that the
       injury occurred when she fell in the parking lot at 6:40 a.m. That finding is now undisputed,
       and the remaining question is whether those circumstances surrounding plaintiff’s injury
       satisfy the statutory standard, i.e., whether the injury occurred during the performance of an
       “act of duty,” as defined by the Pension Code, such that a line-of-duty pension is appropriate.
       In our view, this is a “textbook” example of an issue warranting the clearly erroneous standard.
       However, we note that, although we apply the clearly erroneous standard, our decision here
       does not hinge on the standard of review, for we would also reverse the trial court and affirm
       the Board under the de novo standard.

¶ 16                                      B. Line-of-Duty Pensions
¶ 17        As noted, we are asked to consider whether the Board correctly determined that plaintiff’s
       fall in the parking lot prior to her shift did not warrant a line-of-duty pension. The Pension
       Code provides that a firefighter is entitled to a line-of-duty pension if he or she is injured and
       rendered disabled from performing an “act of duty.” 40 ILCS 5/4-110 (West 2012). The
       Pension Code further defines an “act of duty” as follows:
                “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.”
                Id. § 6-110.
¶ 18        Defendants argue that the Board correctly found that, when she fell in the parking lot,
       plaintiff was not engaged in an act of duty as defined by the Pension Code. Defendants note
       that plaintiff was not on duty, as defined by the Pension Code,1 and that her shift did not start
       until 20 minutes after her accident. Further, defendants argue that no Village ordinances or
       fire-department rules or regulations required plaintiff to arrive at the fire station 20 minutes
       prior to her shift, drive her vehicle there, park in the station’s parking lot, or don her uniform at
       the station. Defendants argue that the expectation that plaintiff be punctual for work, as
       reflected in Ross’s colloquial e-mail or as assessed in her performance reviews, did not
       prescribe how she must accomplish punctuality. Defendants note that plaintiff would have
       been just as punctual if she had kept her uniform at home, obtained a ride to the fire station, and
       walked inside without crossing the parking lot. Indeed, defendants argue, there are a myriad of
       discretionary decisions that a firefighter might make prior to the start of his or her shift that
       might contribute to attendance and punctuality, and interpreting “act of duty” as including
       those innumerable acts among those “imposed” upon the firefighter would extend the
       definition too far. Defendants also note that plaintiff was not engaged in any act having for its
       direct purpose the saving of someone’s life or property. Her shift had not started, she was not
       on any assignment, and she slipped when exiting her personal vehicle in the fire-station
       parking lot.

           1
            We note that a firefighter is considered “on duty” while “on any assignment approved by the
       chief” even if away from the municipality, if the “assignment is related to the fire protection service of
       the municipality.” 40 ILCS 5/4-110 (West 2012).

                                                       -5-
¶ 19        Finally, defendants assert that the trial court erred when it relied on the Workers’
       Compensation Act and the concept of “arising out of and in the course of employment” to
       insert into the definition of “act of duty” a “reasonableness” element. Defendants argue that,
       even if plaintiff’s fall is compensable under the Workers’ Compensation Act, the Pension
       Code explicitly defines “act of duty” such that line-of-duty pension eligibility turns only on
       whether plaintiff was injured performing acts imposed on and required of her, not whether her
       acts were otherwise reasonable.
¶ 20        Plaintiff, in turn, asserts that the trial court correctly determined that her injury occurred
       while she was performing the duty of being timely and prepared to begin work on or before 7
       a.m., which was a requirement specifically prescribed by the CBA, her performance
       evaluations, and Ross’s e-mail. Plaintiff argues that she was expected to be ready and in
       uniform by 7 a.m., which meant that she had to be at work some time before 7 a.m. in order to
       comply. Plaintiff asserts that defendants are actually arguing that, “had the accident occurred
       three minutes or one minute before” 7 a.m., plaintiff still would not have been engaged in an
       act of duty. Plaintiff asserts that, because the assignment approved by her chief was to be at the
       fire station, in uniform, at 7 a.m., “all duties required of her to comply with that assignment are
       also ‘on duty.’ ” She asserts that this conclusion is not simply a reasonable inference but rather
       is directly confirmed by Ross’s e-mail and her performance reviews. Plaintiff also notes that
       the Pension Code provides that a firefighter can be considered on duty even when he or she is
       away from the municipality, whereas, here, she was at the fire station when her injury
       occurred. In addition, plaintiff asserts that, to constitute an act of duty, an act need not be
       dangerous and can be routine. As to the element of discretion involved in a firefighter’s
       activities, plaintiff states:
                    “Virtually any order or Standard Operating Guideline or other performance
                requirement carries with it an element of discretion. Standard Operating
                Policies/Guidelines do not contain the step by step manner of accomplishing the goal of
                suppressing a fire, transporting a victim from his residence to the ambulance,
                ventilating a roof, performing routine maintenance, getting in and out of each vehicle,
                complying with mandatory physical fitness routines, or the other regular shift activities
                prescribed for firefighting employees.”
¶ 21        Finally, plaintiff asserts that the trial court did not improperly rely on cases interpreting the
       Workers’ Compensation Act; rather, it simply referenced those cases as supporting the
       conclusion that it had already reached.
¶ 22        The Board’s decision that, when she fell and injured her shoulder, plaintiff was not
       performing an “act of duty” as defined by the Pension Code was not clearly erroneous. First,
       we note that, in our view, the allegedly “imposed” requirement of “punctuality” is a red
       herring. Plaintiff was not injured because she was rushing or desperately trying to be punctual;
       indeed, the evidence shows that she was 20 minutes early. Plaintiff’s reliance on the
       “punctuality” requirement has led the parties to raise hypotheticals that simply confuse the
       issues here (e.g., what if she had been only one minute early, what if she had been two minutes
       late). Rather, in our view, the pertinent facts are simple: plaintiff fell when she arrived at work
       before her scheduled shift. “Punctuality” is not the point.
¶ 23        In any event, the Board’s decision was simply not clearly erroneous. Again, “act of duty” is
       explicitly defined by the Pension Code. Plaintiff’s argument that she was injured while
       performing an act of duty relates to the first portion of the definition, as she contends that she

                                                     -6-
       fell while performing an act imposed upon her by Village ordinances or fire-department rules
       or regulations. However, plaintiff’s argument essentially would require an interpretation that,
       because the Village and the fire department require a firefighter to appear at work on time, any
       act in the process of doing so constitutes an act of duty. The Board did not clearly err in
       concluding that such an interpretation extends the definition too far. Indeed, not every act that
       happens even at work, while on duty, constitutes an “act of duty” for purposes of eligibility for
       a line-of-duty pension, as the last portion of the definition provides that an act of duty is one
       performed while on duty and “having for its direct purpose the saving of the life or property of
       another person.” Id. Here, plaintiff was not yet on duty, as her shift had not started, and no
       Village ordinance or fire-department rule or regulation imposed upon plaintiff the act of
       exiting her vehicle in the parking lot.
¶ 24        Although plaintiff cites numerous examples of other alleged acts of duty that require
       discretion in their performance, she misses the point in that each of the acts she cites would
       occur while the firefighter was performing a required task while on duty. Further, we disagree
       with plaintiff’s assertion that “all duties required of her to comply” with the assignment to be
       ready to start her shift at 7 a.m. must also be considered as having occurred while “on duty.”
       Such an interpretation would extend the concepts of “on duty” and “act of duty” beyond their
       intended scope. (Would this interpretation include injuries incurred from a fall while
       showering at home before work? Would it include injuries incurred in a car accident on the
       way to work?) Indeed, at oral argument, plaintiff seemed to agree that anything happening off
       of the fire station premises would extend the statutory definition too far, but what if another
       fire station does not have on-site parking and a fall happens on the street? Or what if plaintiff
       arrived not 20 minutes early, but 50 minutes early? 2 We agree with defendants that, under the
       facts here, construing plaintiff’s injury as having happened while she was performing an act of
       duty would strain the definition to an unworkable degree.
¶ 25        As to the parties’ argument concerning the propriety of the trial court’s reference to the
       Workers’ Compensation Act in interpreting the Pension Code, we note that the scope of our
       review is limited to the Board’s decision, not the trial court’s, and so we need not address the
       argument.

¶ 26                                       III. CONCLUSION
¶ 27       For the reasons stated, the judgment of the circuit court of Du Page County is reversed and
       the Board’s decision is confirmed.

¶ 28       Reversed.
¶ 29       Board decision confirmed.




           2
            These types of questions reinforce our view that our review should not be de novo but, rather, that
       deference in the form of the clearly erroneous standard of review must be given to the Board’s
       interpretation of whether certain acts performed by a firefighter constitute acts of duty as statutorily
       defined.

                                                      -7-
