                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




     Mingus v. Board of Trustees of the Police Pension Fund, 2011 IL App (3d) 110098




Appellate Court            JOHN A. MINGUS, Plaintiff-Appellant, v. THE BOARD OF
Caption                    TRUSTEES OF THE POLICE PENSION FUND OF PEORIA, an
                           Illinois Administrative Agency, and JOSEPH SPEARS, RYAN
                           ALWOOD, AL MISENER, JERRY MITCHELL, JOHN RENNICK,
                           Members of the Board of Trustees, Defendants-Appellees.



District & No.             Third District
                           Docket No. 3-11-0098


Filed                      December 9, 2011


Held                       The finding of the board of trustees of defendant police pension fund that
(Note: This syllabus       plaintiff police officer suffered a nonduty injury when he stopped to assist
constitutes no part of     a motorist who got stuck in snow when his vehicle slid off a road
the opinion of the court   following a snowstorm was against the manifest weight of the evidence,
but has been prepared      since the officer was on duty in full uniform and in a squad car patrolling
by the Reporter of         the roads at the time he came upon the stuck motorist, he was required to
Decisions for the          stop and attend to the situation and he was performing an act of duty
convenience of the         when he and two citizens, who stopped to help, pushed the car back onto
reader.)
                           the road; therefore the board’s finding was set aside and the cause was
                           remanded to the board with directions to award plaintiff a line-of-duty
                           disability pension.


Decision Under             Appeal from the Circuit Court of Peoria County, No. 10-MR-287; the
Review                     Hon. Michael E. Brandt, Judge, presiding.
Judgment                    Circuit court reversed; Board’s ruling set aside; and cause remanded to
                            the Board with directions.


Counsel on                  Ronald L. Hanna (argued), of Hanna & Hanna, P.C., of Peoria, for
Appeal                      appellant.

                            Robert H. Jennetten (argued) and Jennifer L. Morris, both of Quinn,
                            Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellees.


Panel                       PRESIDING JUSTICE CARTER delivered the judgment of the court,
                            with opinion.
                            Justices Lytton and O’Brien concurred in the judgment and opinion.




                                              OPINION

¶1          Plaintiff, John A. Mingus, a Peoria police officer who was injured on duty while trying
        to push a motorist’s stuck vehicle out of the snow, applied for a line-of-duty disability
        pension. After a hearing, the Board of Trustees of the Police Pension Fund of Peoria (the
        Board) found that Mingus’s injury was not a result of the performance of an act of duty and
        awarded Mingus a nonduty disability pension instead. The trial court affirmed the Board’s
        ruling upon administrative review. Mingus appeals, arguing that the Board erred in finding
        that his injury was not incurred in the performance of an act of duty and in denying his
        request for a line-of-duty disability pension on that basis. We reverse the trial court’s ruling,
        set aside the Board’s ruling, and remand this case with directions to the Board to award
        Mingus a line of duty disability pension.

¶2                                             FACTS
¶3          The issue presented in this appeal is very narrow. There is no dispute that Mingus is
        disabled for service as a police officer. The only finding in dispute is the Board’s
        determination that Mingus’s injury was not incurred as the result of the performance of an
        act of duty. The evidence presented at the hearing in that regard can be summarized as
        follows.
¶4          Mingus testified that he had been a police officer for about 30 years as of the date of the
        hearing. On December 8, 2006, Mingus was on duty during the day shift and was on patrol
        in full uniform and in a squad car. There was about six inches of snow on the ground from
        previous snowstorms. According to Mingus, it had snowed earlier that morning, it was cold
        out, and the roads were icy. The official weather data, however, showed that it had actually

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     snowed lightly the night before and that it had not snowed that morning, although it was
     foggy and some of the fog had turned to ice. At about 12:15 p.m., Mingus was on patrol
     heading northbound on Big Hollow Road in Peoria when he came across a vehicle that had
     gone off the road in the southbound lane. The vehicle was facing southbound with its back
     end off the road and stuck in the snow and its front end partially on the paved portion of the
     southbound lane. According to Mingus, the entire roadway in that area was covered with ice.
¶5        Mingus made a U-turn, activated his overhead squad car lights, pulled in behind and
     slightly to the left of the stuck vehicle, and parked in the southbound lane with his lights
     activated. The teenage driver told Mingus that the vehicle started slipping on the ice and that
     he lost control of the vehicle and went into the ditch. At some point, another vehicle with two
     occupants stopped to help. At the hearing in August of 2010, Mingus testified that the other
     vehicle stopped after he arrived. However, in his report that was prepared shortly after the
     incident in 2006, Mingus stated that the other vehicle was already there when he arrived.
     Mingus did not call for a tow truck or to check the amount of time it would take for a tow
     truck to arrive at that location. Mingus’s squad car was equipped with a push bumper;
     however, Mingus was not able to get behind the stuck vehicle to push it with his squad car
     because of the snow and ice. In addition, although Mingus could have used his push bumper
     to push the vehicle from the front so that it was completely out of the roadway and all the
     way into the ditch, he did not do so.
¶6        Mingus decided to try to push the vehicle out of the snowbank by hand and back onto the
     roadway with the assistance of the two civilians who had stopped to help. Mingus testified
     that he did so because he wanted to get the vehicle out of that location as soon as possible
     due to the safety hazard. The road was icy in that area and although vehicles could pass in
     both directions, vehicles going southbound had to travel into the turn lane to pass the stuck
     vehicle and Mingus’s squad car. Mingus did not remember how much traffic there was at
     that time but indicated that he did not have to direct traffic or call for a backup officer to
     assist him. Mingus acknowledged that he allowed the two civilians to help him despite the
     safety hazard, but stated that he kept watch to make sure that there were no oncoming
     vehicles while he and the two civilians attempted to push the stuck vehicle out of the ditch.
     Mingus also acknowledged that he never considered giving the teenage driver a ticket and
     stated that he did not want to make the young driver’s problems worse. As Mingus pushed
     the vehicle, he felt immediate pain and a pop or a pull in his groin area. Mingus and the two
     civilians were able to push the stuck vehicle back onto the roadway. Mingus called dispatch
     to have the road salted but did not close the road or stay to warn motorists of the hazardous
     conditions. The pain that Mingus experienced in his groin area that day was later determined
     to be a hernia. Despite several attempts at corrective treatment, Mingus eventually was
     unable to perform his police officer duties because of the injury.
¶7        At the hearing, the Board asked Mingus several questions. The majority of the questions
     pertained to why Mingus did not take a different course of action, such as calling a tow truck,
     why Mingus did not ticket the driver, and why Mingus allowed the two civilians to assist him
     if the situation posed a safety hazard as he had claimed. At the conclusion of the hearing, the
     Board found that Mingus was disabled for service as a police officer, but that the disability
     was not the result of the performance of an act of duty. In reaching that conclusion, the Board

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       specifically found that Mingus’s testimony was not credible regarding the safety hazard and
       the need for immediate action and that it appeared that Mingus had skewed his testimony in
       an attempt to support his claim. The Board denied Mingus’s request for a line-of-duty
       disability pension and awarded Mingus a nonduty disability pension instead. Mingus filed
       a complaint for administrative review, and the trial court affirmed the Board’s ruling. This
       appeal followed.

¶8                                           ANALYSIS
¶9          On appeal, Mingus argues that the Board erred in denying his request for a line-of-duty
       disability pension. Mingus asserts that the evidence showed that he was injured in the
       performance of an act of duty and that the Board incorrectly found that Mingus had suffered
       a nonduty injury. Mingus asserts further that the Board’s decision was improper in that it was
       heavily based upon factors that should have been given no weight in a proper legal analysis
       of this issue. Mingus asks, therefore, that we set aside the Board’s ruling.
¶ 10        In cases involving administrative review, the appellate court reviews the decision of the
       administrative agency, not the determination of the circuit court. Marconi v. Chicago Heights
       Police Pension Board, 225 Ill. 2d 497, 531 (2006). The standard of review that applies on
       appeal is determined by whether the question presented is one of fact, law, or a mixed
       question of law and fact. Marconi, 225 Ill. 2d at 532. As to questions of fact, the agency’s
       decision will not be reversed on appeal unless it is against the manifest weight of the
       evidence. Marconi, 225 Ill. 2d at 532. Questions of law, however, are subject to de novo
       review, and mixed questions of law and fact are reviewed under the clearly erroneous
       standard. Marconi, 225 Ill. 2d at 532. Regardless of which standard of review applies, the
       plaintiff in an administrative proceeding bears the burden of proof and will be denied relief
       if he or she fails to sustain that burden. Marconi, 225 Ill. 2d at 532-33.
¶ 11        In his brief on appeal, Mingus tries to frame the issue in such a manner as to invoke a
       more favorable de novo or clearly erroneous standard of review. Our supreme court,
       however, has already ruled upon this issue and has found that the determination of whether
       a person is entitled to line-of-duty disability pension benefits is a question of fact. See
       Marconi, 225 Ill. 2d at 534; Wade v. City of North Chicago Police Pension Board, 226 Ill.
       2d 485, 505 (2007). We are bound by that ruling. See Angelini v. Snow, 58 Ill. App. 3d 116,
       119 (1978). Therefore, we will not reverse the Board’s decision denying Mingus’s request
       for line-of-duty disability pension benefits unless that decision is against the manifest weight
       of the evidence. See 735 ILCS 5/3-110 (West 2008); Marconi, 225 Ill. 2d at 531-34. For
       reversal to be warranted, it must be clearly evident from the record that the Board should
       have reached the opposite conclusion. See Marconi, 225 Ill. 2d at 534. That the opposite
       conclusion is reasonable or that this court might have ruled differently if it were the trier of
       fact is not enough to justify a reversal. See Marconi, 225 Ill. 2d at 534.
¶ 12        Turning to the merits, we note that the provisions governing the pensions of police
       officers must be liberally construed in favor of the applicant. See Johnson v. Retirement
       Board of the Policemen’s Annuity & Benefit Fund, 114 Ill. 2d 518, 521 (1986). After all, the
       pension fund was created and maintained for the benefit of police officers, their surviving


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       spouses, children, and other dependents. See 40 ILCS 5/3-101 (West 2008); Johnson, 114
       Ill. 2d at 521. For a police officer in a municipality with less than 500,000 inhabitants to
       obtain a line-of-duty disability pension, he must prove: (1) that he is disabled for service in
       the police department, and (2) that his disability was caused by sickness, accident, or injury
       incurred in or resulting from the performance of an act of duty. 40 ILCS 5/3-114.1(a) (West
       2008); Johnson, 114 Ill. 2d at 522; Merlo v. Orland Hills Police Pension Board, 383 Ill. App.
       3d 97, 100 (2008). A police officer who is injured in the performance of an act of duty is
       entitled to a disability pension equal to 65% of his salary at the date of suspension from duty
       (40 ILCS 5/3-114.1(a) (West 2008)), while an officer who is injured from a cause that is not
       an act of duty is only entitled to 50% of his salary (40 ILCS 5/3-114.2 (West 2008)).
¶ 13        As noted above, to qualify for a disability pension, an officer must be injured in the
       performance of an act of duty. 40 ILCS 5/3-114.1(a) (West 2008); Merlo, 383 Ill. App. 3d
       at 100. An act of duty requires more than simply being on duty at the time of the injury.
       Merlo, 383 Ill. App. 3d at 100. Rather, an act of duty is “[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 2008); see also
       Merlo, 383 Ill. App. 3d at 100-01. Although an injury that results from risks comparable to
       those risks encountered in a civilian occupation does not qualify as an act of duty (Merlo,
       383 Ill. App. 3d at 101), the term “special risk” does not encompass only inherently
       dangerous activities (Johnson, 114 Ill. 2d at 521). As our supreme court stated in Johnson:
            “Police officers assigned to duties that involve protection of the public discharge those
            duties by performing acts which are similar to those involved in many civilian
            occupations. Driving an automobile, entering a building, walking up stairs, and even
            crossing the street are activities common to many occupations, be it policeman or
            plumber.
                There can be little question, police officers assigned to duties that involve protection
            of the public discharge their responsibilities by performing acts which are similar to those
            involved in many civilian occupations. The crux is the capacity in which the police
            officer is acting.
                When a policeman is called upon to respond to a citizen, he must have his attention
            and energies directed towards being prepared to deal with any eventuality.
                Additionally, unlike an ordinary citizen, the policeman has no option as to whether
            to respond; it is his duty to respond regardless of the hazard ultimately encountered. In
            the case at bar, at the time of his disabling injury, the plaintiff was discharging his sworn
            duties to the citizens of Chicago by responding to the call of a citizen to investigate an
            accident. There is no comparable civilian occupation to that of a traffic patrolman
            responding to the call of a citizen.
                The defendant’s ultimate reliance on the fact that the plaintiff was ‘traversing a street’
            when he was injured is misplaced. The provisions of section 5-154 of the Illinois Pension


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            Code [citation] conferring the right to duty-disability benefits do not require that an
            officer be injured by an act of duty. Rather, the duty disability is awarded when an officer
            is ‘disabled *** as the result of injury incurred *** in the performance of an act of duty.’
            *** [Citation.] In the plaintiff’s case, the act of duty was the act of responding to the call
            of a citizen for assistance. In performing that act, he was injured.
                 The defendant’s interpretation envisions a police officer involved in a gun battle, a
            high-speed car chase, or some other obviously dangerous situation in order to qualify for
            duty-disability benefits. This is an overly restrictive and unrealistic interpretation. If this
            court were to adopt the defendant’s narrow reading of section 5-113, it could discourage
            police officers from the dedicated and enthusiastic performance of their duties, to the
            detriment of all the citizens of Chicago.” (Emphases in original.) Johnson, 114 Ill. 2d at
            521-23.
¶ 14        After reviewing the record in the present case and applying the legal principles set forth
       above, we conclude that the Board’s finding–that Mingus’s injury was not caused in the
       performance of an act of duty–is against the manifest weight of the evidence. The undisputed
       facts show that at the time of the injury, Mingus was on duty in full uniform and in a squad
       car patrolling the roads. During that patrol, Mingus came across a young driver who had
       skidded off the road in an icy area and gone into the ditch. The front of the driver’s vehicle
       remained on a portion of the paved roadway. Unlike an ordinary citizen, as a police officer,
       Mingus was required to stop and attend to the situation. See Johnson, 114 Ill. 2d at 521-23.
       Thus, at the time of the injury, Mingus was performing an act of duty. See Johnson, 114 Ill.
       2d at 523 (police officer, who was injured when he slipped and fell while walking across the
       street to respond to a citizen’s request for assistance regarding a traffic accident, was injured
       in the performance of an act of duty); Merlo, 383 Ill. App. 3d at 102-03 (police officer, who
       responded to a citizen’s call of mischievous juvenile activity and was injured when he
       attempted to remove concrete parking blocks that juveniles had stacked in parking lot, was
       injured in the performance of the act of duty, even though city’s department of public works
       would have removed the blocks upon request); Wagner v. Board of Trustees of Police
       Pension Fund, 208 Ill. App. 3d 25, 29-30 (1991) (police officer, who was injured when his
       leg went through a rotted porch that he was walking across while attempting to serve notice
       and again when he stepped into a culvert offset while answering a call about a disturbance,
       was injured in the performance of an act of duty); Sarkis v. City of Des Plaines, 378 Ill. App.
       3d 833, 840-42 (2008) (police officer, who injured his shoulder while attempting to place
       support block into railroad crossing gate, was injured in the performance of an act of duty,
       even though civilians were trained to perform same function, evidence was not clear whether
       officer responded to situation or merely came across situation while on patrol, and there was
       no indication whether situation was obstructing traffic); Alm v. Lincolnshire Police Pension
       Board, 352 Ill. App. 3d 595, 601-03 (2004) (police officer, who was assigned to bike patrol
       and whose knee was injured over time in riding police bicycle, was injured in the
       performance of an act of duty).
¶ 15        Because Mingus’s injury resulted from the performance of an act of duty, he is entitled
       to a line-of-duty disability pension. While it is true that ordinary citizens at times stop during
       the winter to help motorists that have become stuck and that tow-truck companies are also

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       available to assist motorists in such a situation, those facts, while relevant, are not dispositive
       of the issue that was before the Board. See Sarkis, 378 Ill. App. 3d at 840-42. In addition, it
       appears from the record that the Board’s focus at the hearing was misplaced. The Board lost
       sight of the fact the Mingus was required to stop and assist the motorist and instead focused
       on the alternatives available to Mingus to address the situation, after he stopped to assist.
       Although a credibility determination by the Board will often be dispositive of the issue in a
       case such as this, here the Board’s finding, that Mingus’s testimony was not credible as to
       the need for immediate action for safety reasons, went to an issue that was not material. It
       does not matter whether Mingus was incorrect or even incredible in his assessment of the
       situation and decision that immediate action was necessary. Rather, what is important for our
       determination here is that as a police officer, Mingus was required to stop and assist the stuck
       motorist. See Johnson, 114 Ill. 2d at 521-23. Everything that occurred after that point was
       merely a matter of Mingus exercising his discretion in how best to handle the situation. Thus,
       without question, Mingus was engaged in the performance of an act of duty at the time of the
       injury. To rule otherwise would be to adopt a view that is much narrower than that expressed
       by our supreme court in Johnson. See Johnson, 114 Ill. 2d at 521-23. It is not the precise
       physical act that controls but the capacity in which the officer was acting. Johnson, 114 Ill.
       2d at 522. We conclude, therefore, that the Board’s finding of a nonduty injury was against
       the manifest weight of the evidence.
¶ 16       For the foregoing reasons, we reverse the trial court’s ruling, set aside the Board’s ruling,
       and remand this case with directions to the Board to award Mingus a line of duty disability
       pension.

¶ 17       Circuit court reversed; Board’s ruling set aside; and cause remanded to the Board with
       directions.




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