                                                                      THIRD DIVISION
                                                                      JUNE 4, 2008




1-06-3729

MICHAEL MERLO,                                                )       Appeal from the
                                                              )       Circuit Court of
               Petitioner-Appellee,                           )       Cook County.
                                                              )
       v.                                                     )       No. 06 CH 1314
                                                              )
ORLAND HILLS POLICE PENSION BOARD,                            )       Honorable
                                                              )       Nancy J. Arnold,
               Respondent-Appellant.                          )       Judge Presiding.


       JUSTICE CUNNINGHAM delivered the opinion of the court:

       The petitioner, Michael Merlo, filed a complaint in the circuit court of Cook County against

the respondent, Orland Hills Police Pension Board, for administrative review of the respondent’s

decision to deny him a line of duty pension. The trial court reversed the respondent’s decision and

awarded the petitioner a line-of-duty pension for injuries he sustained while on patrol. On appeal,

the respondent argues that the trial court’s findings are against the manifest weight of the evidence.

For the following reasons, we affirm the judgment of the circuit court.

                                         BACKGROUND

       The petitioner has been an officer with the Village of Orland Hills police department since

January 4, 1982, and is also a member of the Orland Hills Police Pension Plan. On October 23,

2002, the petitioner was assigned to work patrol for his 3 p.m. to 11 p.m. shift. At that time, the

petitioner was ranked as a sergeant within the department. During his shift, the petitioner was
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dispatched to the community recreation center to respond to a call reporting juveniles engaging in

mischievous conduct. The head of recreation for the village reported that juveniles were stacking

parking blocks in the community center parking lot. When the petitioner arrived, three concrete

parking blocks were stacked in the parking lot. The petitioner attempted to move the parking blocks

and injured his back. Several physicians subsequently examined the petitioner’s injury and

determined that he was disabled and no longer able to perform the duties of a police officer.

       The petitioner filed an application for line-of-duty disability benefits pursuant to section 3-

114.1 of the Illinois Pension Code (the Code) (40 ILCS 5/3-114.1 (West 2004)) with the Orland Hills

Police Pension Fund. On June 8, 2005, the petitioner sent a letter to the respondent to amend his

application to include “not on duty benefits” pursuant to section 3-114.2 of the Code (40 ILCS 5/3-

114.1 (West 2004)). On June 28, 2005, the respondent, the Orland Hills Police Pension Board, held

a hearing on the petitioner’s application. On December 21, 2005, the respondent issued its finding

and decision, denying the petitioner a line-of-duty disability pension. The respondent found that the

petitioner’s injuries were not caused or incurred in the performance of an act of police duty. The

respondent granted the petitioner a non-duty-related disability pension equal to 50% of his salary.



       On January 19, 2006, the petitioner filed a complaint in the circuit court of Cook County for

administrative review of the respondent’s findings and decisions. The petitioner argued that the

respondent’s findings were against the manifest weight of the evidence, and were arbitrary and

capricious. The trial court held that the petitioner was subject to a special risk because he was acting

in the mandatory police capacity of responding to a call. The court explained that the petitioner had

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a duty to act as necessary to ensure public safety. The court found it irrelevant that the petitioner had

the option to call the public works department to remove the parking blocks. The court held that the

respondent’s finding was clearly erroneous and reversed the decision. The respondent has appealed.

                                             ANALYSIS

        On appeal, the respondent argues that the petitioner was not injured while performing an “act

of duty” as required for a line-of-duty pension under the Code. The respondent contends that the

petitioner was on duty at the time of the injury; however, his injury did not result from an act of

police duty involving special risks. The respondent explains that the petitioner did not injure his

back by responding to the disturbance call from the community center. Rather, the petitioner

engaged in an act, the removal of the parking blocks, that was the statutory duty of the village public

works department. The petitioner argues that he was engaged in a patrol response when he was

injured. He contends that patrol is an act that is not performed by a citizen in the ordinary walks of

life. The petitioner argues that the respondent improperly focused on the precise physical activity

and the discretion involved in the performance of the activity. The petitioner contends that the

moving of the parking blocks was an extension of his duty to protect the public.

        The applicable standard of review of an administrative agency’s decision depends upon

whether the issue presented before the court is one of either fact or law. Carpetland U.S.A., Inc. v.

Illinois Department of Employment Secretary, 201 Ill. 2d 351, 369, 776 N.E.2d 166, 177 (2002).

If the issue is purely a question of law then it is reviewed de novo. Carpetland U.S.A., Inc., 201 Ill.

2d at 369, 776 N.E.2d at 177. However, when the court reviews an administrative agency’s factual

findings, the findings and conclusions are deemed to be “prima facie true and correct,” and the

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manifest weight of the evidence standard is applied. Carpetland U.S.A., Inc., 201 Ill. 2d at 369, 776

N.E.2d at 177. In some cases, the issue presented to the court may involve a mixed question of fact

and law. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d

295, 302 (1998); Carpetland U.S.A., Inc., 201 Ill. 2d at 369, 776 N.E.2d at 177. As in this case, a

clearly erroneous standard is appropriate for review of an agency’s decision that presents a mixed

question of fact and law. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d at 205,

692 N.E.2d at 302. “We will reverse only if, after review of the entire record, we are ‘ “left with the

definite and firm conviction that a mistake has been committed.” ’ ” Carpetland U.S.A., Inc., 201

Ill. 2d at 369, 776 N.E.2d at 177, citing AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001), quoting United States v. United States

Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

       In this case, the statute relevant to resolution, section 3-114.1(a) of the Code states in

pertinent part:

                         “(a) If a police officer as the result of sickness, accident or

                  injury incurred in or resulting from the performance of an act of duty,

                  is found to be physically or mentally disabled for service in the police

                  department, so as to render necessary his or her suspension or

                  retirement from the police service, the police officer shall be entitled

                  to a disability retirement pension equal to *** 65% of the salary

                  attached to the rank on the police force held by the officer at the date

                  of suspension of duty or retirement ***.

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                         A police officer shall be considered ‘on duty’ while on any

                 assignment approved by the chief of the police department of the

                 municipality he or she serves, whether the assignment is within or

                 outside the municipality.” 40 ILCS 5/3-114.1(a) (West 2004).

An officer who is injured from a cause that is not an act of duty is entitled to a pension equal to 50%

of his salary at the date of suspension of duty. 40 ILCS 5/3-114.2(a) (West 2004).

          An officer does not qualify for line-of-duty disability benefits merely because he was injured

while on duty. White v. City of Aurora, 323 Ill. App. 3d 733, 736, 753 N.E.2d 1244, 1246 (2001).

Section 5-113 of the Code defines an act of duty as “[a]ny act of police duty inherently involving

special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a

policeman by the statutes of this State or by the ordinances or police regulations of the city in which

this Article is in effect or by a special assignment; or any act of heroism performed in the city having

for its direct purpose the saving of the life or property of a person other than the policeman.” 40

ILCS 5/5-113 (West 2004). “[I]njuries resulting from risks comparable to those encountered in

civilian occupations are not compensable as resulting from acts of duty.” Morgan v. Retirement

Board of Policemen’s Annuity & Benefit Fund, 172 Ill. App. 3d 273, 276, 526 N.E.2d 493, 496

(1988).

          The supreme court in Johnson v. Retirement Board of the Policemen’s Annuity & Benefit

Fund, 114 Ill. 2d 518, 502 N.E.2d 718 (1986), and Robbins v. Board of Trustees of the Carbondale

Police Pension Fund of the City of Carbondale, Illinois, 177 Ill. 2d 533, 542, 687 N.E.2d 39, 44

(1997), clarified the definition of an “act of duty.” In Johnson, the petitioner was a police officer on

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traffic control duty and was injured when a citizen asked him to assist in a traffic accident. As the

officer crossed the intersection, he slipped and fell on wet pavement, injuring his right arm and hand.

The respondent argued that the officer only qualified for ordinary disability benefits because

“traversing a street” is not inherently dangerous and is involved in many civilian occupations.

Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 719. The Illinois Supreme Court rejected this reasoning

and held that the Code does not “require that an officer be injured by an act of duty.” (Emphasis

omitted.) Johnson, 114 Ill. 2d at 522, 502 N.E.2d at 720. But, rather, the Code requires that the

“officer is ‘disabled *** as the result of injury incurred *** in the performance of an act of duty.’

Ill. Rev. Stat. 1983, ch. 108 ½ , par. 5-154.” (Emphasis omitted.) Johnson, 114 Ill. 2d at 522, 502

N.E.2d at 720. In Robbins, 177 Ill. 2d at 542, 687 N.E.2d at 44, the Illinois Supreme Court also

examined a claim for duty-related stress and held that officers must demonstrate that their disability

resulted from a specific identifiable act, unique to police work.

       This appellate court has addressed this issue in Morgan v. Retirement Board of Policemen’s

Annuity & Benefit Fund, 172 Ill. App. 3d 273, 276, 526 N.E.2d 493, 496 (1988), White v. City of

Aurora, 323 Ill. App. 3d 733, 736, 753 N.E.2d 1244, 1246 (2001), and Alm v. Lincolnshire Police

Pension Board, 352 Ill. App. 3d 595, 816 N.E.2d 389 (2004). In Morgan, the petitioner was injured

while completing a police report when he sat down and his chair rolled away from him. The court

held that many “injuries resulting from risks comparable to those encountered in civilian occupations

are not compensable as resulting from acts of duty.” Morgan, 172 Ill. App. 3d at 277, 526 N.E.2d

at 496. In White, the petitioner was injured when he slipped and fell while exiting his car to place

a parking citation on another vehicle. The court held that the petitioner was completing a clerical

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act, not unlike many civilian occupations, when the petitioner filled out citations and placed them

on vehicles. The court explained that the petitioner’s injury was not the result of a “special risk not

ordinarily assumed by citizens in the ordinary walks of life.” White, 323 Ill. App. 3d at 736, 753

N.E.2d at 1247. In White, the dissenting justice explained that “the capacity in which the police

officer is acting” must be examined to determine whether the police officer’s injury occurred during

an act of duty. Lastly, in Alm, the petitioner developed a knee injury from riding in the bicycle

patrol unit of the police department. The majority, in that case, agreeing with the dissent in White,

held that in deciding whether an officer is injured in an act of duty, the court must examine the

capacity in which the officer was acting when he was injured. Alm, 352 Ill. App. 3d at 602, 816

N.E.2d at 395. We agree with the reasoning in Alm and find it instructive for resolution of the case

before us.

        In this case, the petitioner responded to a civilian call reporting mischievous juveniles

stacking concrete parking blocks in a parking lot. When the petitioner arrived, he attempted to

remove the hazard by unstacking the concrete parking blocks and injured his back. The respondent

argues that the petitioner did not engage in an act of duty because the alleged mischievous juveniles

had already left the premises and it was the duty of the village public works department to move the

parking blocks. We disagree.

        Our supreme court in Johnson instructs us to examine whether the petitioner was injured

“ ‘in the performance of an act of duty.’ Ill. Rev. Stat. 1983, ch. 108 ½, par. 5-154.” Johnson, 114

Ill. 2d at 522, 502 N.E.2d at 720. In this case, the petitioner, in his capacity as a police officer,

responded to a call reporting juveniles stacking parking blocks. In response to this call, the petitioner

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decided to unstack the parking blocks to eliminate a safety hazard to the general public in the parking

garage. “‘A policeman is actually engaged in the performance of his duty for the protection of life

and property whenever he is carrying out the official orders or requirements of his office.’” Johnson,

114 Ill. 2d at 522, 502 N.E.2d at 720, quoting Blanchard v. New Orleans Police Department, 210 So.

2d 585, 588 (La. App. 1968). As a patrol officer, the petitioner had a duty, not only to confront the

juveniles in the parking lot, but to eliminate the safety hazard which they created on the premises.

        The respondent also contends that the petitioner’s act did not involve any special risks

because the village public works department, a civilian office, had a duty to remove the parking

blocks. It argues that the petitioner was involved in an act of duty when he responded to the call, but

after he arrived and found the stacked parking blocks, he only faced a risk encountered by ordinary

citizens. Again, we disagree. The petitioner’s duty to protect the public was not eliminated because

the village public works department had a duty to remove the stacked parking blocks at some later

time.

        Under the respondent’s reasoning, a police officer would risk losing his line-of-duty disability

pension by eliminating a safety hazard to the general public if the hazard was a risk faced by ordinary

citizens. This reasoning is not only contrary to public policy and safety, it is contrary to the holding

in Johnson. As the court held in Alm, we must examine the capacity in which the police officer was

acting when he was injured. Alm, 352 Ill. App. 3d at 602, 816 N.E.2d at 395. The respondent’s

position focuses solely on the acts of the petitioner at the specific instant of injury and not the

capacity in which he performed those acts. The petitioner was responding to a call from a civilian

reporting juveniles creating a safety hazard on the premises of a parking lot. Although the petitioner

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did not have the opportunity to confront the juveniles, we find that he was acting in his capacity as

a police officer and properly exercised his discretion when he attempted to remove the safety hazard

created by the juveniles.

        Unlike in Morgan and White, the petitioner was not injured while performing an act of duty

that is void of special risks unique to police work and encountered by ordinary citizens. The village

public works department may be duty bound to move concrete parking blocks; however, the

employees of that department are not required to respond to a citizen’s call to confront mischievous

juveniles or immediately eliminate the resulting safety hazards to the general public. The petitioner’s

acts were that of a police officer responding to a civilian call; trying to immediately eliminate a

public safety hazard. Thus, the petitioner is entitled to a line-of-duty pension for his injuries.

       For the following reasons, we affirm the judgment of the circuit court of Cook County.

       Affirmed.

       QUINN, P.J., and THEIS, J., concur.




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