                                                                        SECOND DIVISION
                                                                        March 31, 2006




No. 1-05-2457

DANIEL MABIE,                                             )      Appeal from the
                                                          )      Circuit Court of
         Plaintiff-Appellee,                              )      Cook County.
                                                          )
                v.                                        )
                                                          )
VILLAGE OF SCHAUMBURG,                                    )
                                                          )      Honorable
         Defendant-Appellant.                             )      Mary Anne Mason,
                                                          )      Judge Presiding.


         JUSTICE WOLFSON delivered the opinion of the court:

         Daniel Mabie, a fireman, sues the Village of Schaumburg for sick leave and

vacation benefits he did not receive while recovering from injuries incurred at the fire

station. He says he is entitled to those benefits under the Public Employee Disability

Act (PEDA) (5 ILCS 345/0.01 et seq. (West 2000)).

         The Village claims it does not have to pay the benefits because the plaintiff=s

injury did not occur "in the line of duty" under PEDA.

         This case requires us to construe and apply PEDA=s use of the words "line of

duty." The trial court granted summary judgment to the plaintiff. We affirm the trial

court.

FACTS

         Plaintiff was employed by the defendant as a full-time

firefighter when he was injured on April 12, 1999.                        He fell down

fire station stairs on his way to roll call.                      He was unable to
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perform his duties as a firefighter from April 13, 1999, to

August 5, 1999.     The arbitrator ruled in favor of the plaintiff

on his workers= compensation claim, finding the plaintiff

suffered "a compensable injury arising out of and in the course

of his employment."    The Illinois Industrial Commission and the

trial court confirmed the arbitrator=s decision.    The Village

appealed to the Illinois Appellate Court, Industrial Commission

Division.    While the Village=s appeal was pending, the parties

agreed to settle the workers= compensation claim.    The settlement

awarded the plaintiff $32,500 for medical expenses, permanent

disability, and interest.    The parties agreed to dismiss the

Village=s appeal.

     Following the settlement, the plaintiff filed a complaint

for injunctive relief pursuant to PEDA seeking an order directing

the Village to reinstate his sick leave and vacation benefits.

Under PEDA, a firefighter who suffers an injury "in the line of

duty" shall continue to be paid by his employer on the same basis

as before his injury, with no deduction from sick leave credits,

overtime accumulation, or vacation.    5 ILCS 345/1 (West 2000).

The defendant filed a motion to dismiss, alleging the plaintiff

waived his right to ask for additional benefits outside the

settlement agreement.    The trial court dismissed the plaintiff=s

complaint.


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     On appeal, this court reversed, finding the language of the

settlement agreement was limited to those claims that could be

enforced by the Industrial Commission.     Mabie v. Village of

Schaumburg, 1-04-1709 (2004) (unpublished order under Supreme

Court Rule 23).   The plaintiff could not have waived his right to

bring his PEDA claim, and the agreement did not have any res

judicata effect as to plaintiff=s claim.    Mabie, 1-04-1709, slip

op. at 6.

     On remand to the trial court, the plaintiff moved for

summary judgment on two alternative theories: (1) he suffered an

injury in the line of duty that was compensable under PEDA; and

(2) the Village was barred from challenging the cause of

plaintiff=s disability and its legal effect based on the res

judicata or judicial estoppel effect of the settlement agreement

and prior Industrial Commission decisions.

     The trial court granted summary judgment to the plaintiff,

based on the doctrine of collateral estoppel.

DECISION

     Summary judgment is appropriate where the pleadings,

depositions, affidavits, admissions, and exhibits on file, when

viewed in the light most favorable to the nonmovant, show there

is no genuine issue of material fact and the movant is entitled

to judgment as a matter of law.   735 ILCS 5/2-1005(c) (West


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2000); Illinois Farmers Insurance Co. v. Marchwiany, 361 Ill.

App. 3d 916, 919, 838 N.E.2d 172 (2005).   Our review is de novo.

Illinois Farmers Insurance Co., 361 Ill. App. 3d at 919.

     Collateral estoppel, a branch of res judicata, prohibits the

relitigation of an issue actually decided in an earlier

proceeding between the same parties.   McCulla v. Industrial

Commission, 232 Ill. App. 3d 517, 520, 597 N.E.2d 875 (1992).     In

order to apply collateral estoppel, (1) the issue decided in the

prior adjudication must be identical to the issue in the current

action; (2) the party against whom estoppel is asserted must have

been a party or in privity with a party in the prior action; and

(3) the prior adjudication must have resulted in a final judgment

on the merits.   Dowrick v. Village of Downers Grove, 362 Ill.

App. 3d 512, 516, 840 N.E.2d 785 (2005).

     The question is whether the prior decision in the workers=

compensation case that the injury "arose out of and in the course

of employment" collaterally estopped the defendant from

relitigating the issue of causality in the PEDA case.   PEDA

provides compensation for a firefighter who "suffers any injury

in the line of duty which causes him to be unable to perform his

duties."    5 ILCS 345/1(b) (West 2000).

     Because there is no definition of "line of duty" in PEDA,

and no cases directly on point, the parties rely on cases


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comparing workers= compensation claims with line-of-duty

disability pension claims.

     The Workers= Compensation Act (WCA) provides for

compensation for accidental injuries "arising out of and in the

course of the employment" of the injured employee.    820 ILCS

305/2 (West 2000).   The applicable section of the Illinois

Pension Code (Pension Code) allows a pension board to grant a

line-of-duty disability pension for "sickness, accident, or

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

duty or from the cumulative effects of acts of duty."      40 ILCS

5/4-110 (West 2000).

     There is no definition of "act of duty" in the section of

the Pension Code applying to firefighters in municipalities with

populations of 500,000 and under.     However, this court has held

the definition in the Pension Code for cities with populations

over 500,000 applies equally to all firefighters.     See Jensen v.

East Dundee Fire Protection District Firefighters= Pension Fund

Board of Trustees, 362 Ill. App. 3d 197, 204, 839 N.E.2d 670

(2005).   That section defines an "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, or any

            act performed by an active fireman while on


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1-05-2457

            duty, having for its direct purpose the

            saving of the life or property of another

            person."   40 ILCS 5/6-110 (West 2000).

     If a firefighter is injured while performing an act imposed

on him by the ordinances of a city or the rules and regulations

of the fire department, he is not required to prove the act had

for its direct purpose the saving of the life or property of

another person.   O=Callaghan v. Retirement Board of Firemen=s

Annuity & Benefit Fund of Chicago, 302 Ill. App. 3d 579, 583, 706

N.E.2d 979 (1998) (Firefighter who injured his knee during a

training course was entitled to benefits under the Pension Code).

     The defendant contends the court in Demski v. Mundelein

Police Pension Board, 358 Ill. App. 3d 499, 831 N.E.2d 704

(2005), made clear that whether an accident arose "out of and in

the course of employment" for purposes of workers= compensation

is a different issue than whether an accident occurred during an

"act of duty" under the Pension Code.    There, the plaintiff, a

police officer, injured her back during a routine physical

fitness agility examination.    Demski, 358 Ill. App. 3d at 500.

The Illinois Industrial Commission determined her injury arose

out of the course of her employment.    The pension board denied

her application for a line-of-duty pension, finding her

disability was not caused by the performance of an act of duty.


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1-05-2457

Demski, 358 Ill. App. 3d at 502.       The court held collateral

estoppel did not apply.   The pension board was not bound by the

Industrial Commission=s determination because the issue in the

two cases was not identical.    Demski, 358 Ill. App. 3d at 502-

503.

       The issue before the pension board was whether the accident

occurred during an "act of duty," as defined by section 5-113 of

the Pension Code.   Demski, 358 Ill. App. 3d at 503.      Section 5-

113, applicable to police officers in cities with populations

over 500,000, defines an "act of duty" as:

            "Any 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 2000).

The court held the issue of whether Demski was injured while

performing an act of duty never had been litigated.      Demski, 358


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1-05-2457

Ill. App. 3d at 503.   That is, the workers= compensation case did

not decide whether Demski was performing an act involving a

special risk not ordinarily shared by a citizen.    Demski, 358

Ill. App. 3d at 503-504.   The issues were "substantially

different."   Demski, 358 Ill. App. 3d at 504.

       The specialized definition of "act of duty" in Demski does

not apply here.   In Jensen, the court found the language in

section 5-113 of the Pension Code defining an act of duty for

police officers is different than the language defining the term

"act of duty" as it relates to firefighters.     Jensen, 362 Ill.

App. 3d at 203.   Because the pension board improperly applied the

definition of the term >act of duty= in section 5-113, the court

held the board never addressed the issue of whether the

plaintiff=s injury was incurred in or resulted from "acts of

duty" within the meaning of section 4-110 of the Pension Code.

Jensen, 362 Ill. App. 3d at 204-205.

       When we look at cases not involving the "special risk"

definition in Demski, it is clear the courts treat the causal

test under the Pension Code as equivalent to the test under the

WCA.   In Wilfert v. Retirement Board of Firemen=s Annuity &

Benefit Fund of Chicago, 263 Ill. App. 3d 539, 543, 640 N.E.2d

1246 (1994), the court held the Pension Code "serves an

equivalent purpose to the objectives of workers= compensation"


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1-05-2457

and is to be liberally construed in favor of the applicant to

achieve its beneficent purpose.    Moreover, the "line of duty"

test in pension cases is the same as the general test of "arising

out of and in the course of the employment" applied in workers=

compensation cases.   Wilfert, 263 Ill. App. 3d at 544, citing

Unger v. Continental Assurance Co., 107 Ill. 2d 79, 85, 481

N.E.2d 684 (1985).    See also Luchesi v. Retirement Board of the

Firemen=s Annuity & Benefit Fund of Chicago, 333 Ill. App. 3d

543, 551, 776 N.E.2d 703 (2002) (courts interpret the causal test

under the Code as similar to the test under the WCA);

O=Callaghan, 302 Ill. App. 3d at 583 (tests should be interpreted

similarly).

     In McCulla, a firefighter appealed the denial of workers=

compensation benefits.   Previously, the pension board had awarded

him a "not in duty" pension, meaning he was disabled " >as a

result of any cause other than an act of duty.= "   McCulla, 232

Ill. App. 3d at 521, citing Ill. Rev. Stat. 1985, ch. 108 1/2,

par. 4-111.   The court held that under collateral estoppel, the

pension board=s decision barred the firefighter from relitigating

the issue of whether his injuries were causally connected to his

employment.   McCulla, 232 Ill. App. 3d at 521. The court said,

            "[w]e find no difference between the issue

            adjudicated before the pension board and the


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1-05-2457

            issue of causation subsequently before the

            Commission.   The claimant had a full

            opportunity to adjudicate the issue of the

            work-related nature of his disability before

            the pension board.    The pension board found

            his disability did not arise out of his

            duties as a fire fighter.   He did not appeal

            this determination.    Therefore, he is

            collaterally estopped from relitigating that

            issue before the Commission."   McCulla, 232

            Ill. App. 3d at 521.

     Similarly, in Dempsey v. City of Harrisburg, 3 Ill. App. 3d

696, 698, 279 N.E.2d 55 (1971), the court held the issues in

proceedings under the WCA and the Policemen=s Pension Fund were

"sufficiently alike that it would be a pointless quibble to deny

that they are identical."    The statute governing the pension fund

in Dempsey provided benefits in the event " >a policeman loses

his life in the performance of duty.= "     Dempsey, 3 Ill. App. 3d

at 698, citing Ill. Rev. Stat. 1967, ch. 108 1/2, par. 3-118.

The court held the Industrial Commission=s decision was res

judicata and binding on the defendants in the pension action.

Dempsey, 3 Ill. App. 3d at 698.

     We see no meaningful difference between the "line of duty"


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1-05-2457

standard in PEDA and the causation test in workers= compensation

claims--that the injury "arose out of and in the course of

employment."   There is no reason to require a firefighter to

provide different proof that he was injured in the line of duty

under PEDA than he would in a "line-of-duty" pension case.

Accordingly, we find the defendant is collaterally estopped from

relitigating the issue of causation, based on the finding in the

workers= compensation claim that plaintiff=s injury arose out of

the course of his employment.

     The defendant contends a material issue of fact remains as

to whether plaintiff tripped on an aerosol can or whether he

slipped for some other reason.   In an affidavit attached to his

motion for summary judgment, plaintiff said he stepped on an

aerosol can and fell down the fire station stairs.   The defendant

refers to statements made by the plaintiff, his captain, and his

doctor that indicate plaintiff fell down the stairs but do not

mention an aerosol can.   Can or no can, the plaintiff was on his

employer's premises and proceeding to work at the direction of

his employer when the accident occurred.   Precisely how the

plaintiff slipped or tripped does not matter.   See Unger, 107

Ill. 2d at 85-86, quoting Chmelik v. Vana, 31 Ill. 2d 272, 278,

201 N.E.2d 434 (1964) (injury must occur " >within the period of

employment at a place where the employee may reasonably be in the


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performance of his duties, and while he is fulfilling those

duties= ").   No issue of material fact remains.

CONCLUSION

     We affirm the trial court=s grant of summary judgment for

the plaintiff.

     Affirmed.

     GARCIA, P.J., and SOUTH, J., concur.




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