                             2015 IL App (2d) 130920
                                  No. 2-13-0920
                            Opinion filed April 27, 2015
______________________________________________________________________________

                                              IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

WILLIAM BREMER,                        ) Appeal from the Circuit Court
                                       ) of Winnebago County.
      Plaintiff-Appellee and           )
      Cross-Appellant,                 )
                                       )
v.                                     ) No. 08-MR-437
                                       )
THE CITY OF ROCKFORD,                  )
                                       ) Honorable
      Defendant-Appellant and          ) J. Edward Prochaska,
      Cross-Appellee.                  ) Judge, Presiding.
______________________________________________________________________________

          JUSTICE BURKE delivered the judgment of the court, with opinion.
          Justice Jorgensen concurred in the judgment and opinion.
          Justice McLaren concurred in part and dissented in part in the judgment, with opinion.

                                             OPINION

¶1        Defendant, the City of Rockford, appeals from the entry of summary judgment in favor of

plaintiff, William Bremer, and the denial of Rockford’s cross-motion for summary judgment, on

Bremer’s claim for health care benefits under the Public Safety Employee Benefits Act (Benefits

Act) (820 ILCS 320/1 et seq. (West 2008)).          In another proceeding, Bremer, a firefighter

suffering from a heart condition, obtained an occupational disease disability pension under

section 4-110.1 of the Illinois Pension Code (Pension Code) (see 40 ILCS 5/4-110.1 (West

2008)).     In this case, the trial court ruled that the pension qualified him for benefits under

section 10 of the Benefits Act.    On appeal, Rockford argues that the trial court erred in granting
2015 IL App (2d) 130920


Bremer summary judgment on his claim under section 10, because (1) his eligibility for the

occupational disease disability pension does not mean that he suffered a “catastrophic injury,”

which is required for health care benefits (see 820 ILCS 320/10(a) (West 2008)), and (2)

Bremer’s injury did not result from his “response to what is reasonably believed to be an

emergency,” which is also required (see 820 ILCS 320/10(b) (West 2008)).         We hold that an

occupational disease disability pension granted under section 4-110.1 of the Pension Code

satisfies the “catastrophic injury” element of section 10(a), but that a question of fact regarding

section 10(b) precludes summary judgment for Bremer on his claim for health care benefits

under the Benefits Act.

¶2     Bremer cross-appeals from the trial court’s orders denying his claim under the Attorneys

Fees in Wage Actions Act (Wage Actions Act) (705 ILCS 225/1 et seq. (West 2008)) and

dismissing portions of his claim for damages arising out of unpaid health insurance premiums

and medical expenses that he incurred while uninsured.     We agree with the trial court that, as a

matter of law, Bremer is not entitled to recover attorney fees under the Wage Actions Act,

because, even if he were to prevail on his claim for postemployment health care benefits under

the Benefits Act, those benefits would not qualify as “wages earned and due and owing

according to the terms of the employment.” 705 ILCS 225/1 (West 2008).            We further hold

that Bremer’s claim for unpaid health insurance premiums and medical expenses is not ripe for

adjudication, because there is no longer a judgment requiring Rockford to pay health insurance

premiums for Bremer or his wife.

¶3     In sum, we affirm the trial court’s order denying Bremer’s request for attorney fees.   We

reverse the entry of summary judgment for Bremer on his claim brought under section 10 of the




                                               -2-
2015 IL App (2d) 130920


Benefits Act.   We vacate the rulings on Bremer’s claim for unpaid health insurance premiums

and medical expenses, and we remand the cause for further proceedings on that claim.

¶4                                     I. BACKGROUND

¶5     Rockford hired Bremer as a firefighter in 1976. On May 12, 2004, Bremer filed an

application with the City of Rockford Firefighters’ Pension Board (Board), seeking an

occupational disease disability pension pursuant to section 4-110.1 of the Pension Code (see 40

ILCS 5/4-110.1 (West 2008)). Bremer presented evidence that his cardiomyopathy rendered him

unable to work as a firefighter.

¶6     On February 1, 2007, the Board granted Bremer’s application for an occupational disease

disability pension under section 4-110.1 of the Pension Code. The Board found that Bremer was

a firefighter with more than five years of creditable service who was rendered disabled as a result

of a disease of the heart, cardiomyopathy, which resulted from service in the fire department. The

Board found that Bremer had been exposed to chemicals and toxins while fighting fires and that he

had experienced heavy to very heavy exertion during emergency calls when he entered fires, lifted

people and equipment, overhauled fire scenes, and responded to ambulance calls. The Board also

found that Bremer’s disability was permanent. Bremer’s pension was effective January 5, 2005.

¶7     Pursuant to a city ordinance, Rockford paid health insurance premiums as a benefit for

Bremer and his wife, Sally, from January 2005 through February 2008.       On February 21, 2008,

Rockford informed Bremer that, on March 1, 2008, Rockford would no longer pay the

premiums, which were approximately $1,100 per month.         Rockford directed Bremer to pay the

premiums himself, from his pension checks, if he wished to maintain the benefits.




                                               -3-
2015 IL App (2d) 130920


¶8     On March 20, 2008, Bremer applied to Rockford for the payment of health insurance

premiums pursuant to the Benefits Act.     Bremer supplemented the application with the Board’s

finding that he was disabled and entitled to an occupational disease disability pension.

¶9     Following an informal meeting with Bremer, Rockford denied the application on the

basis that Bremer had not suffered a “catastrophic injury” as required by section 10(a) of the

Benefits Act (see 820 ILCS 320/10(a) (West 2008)).         Rockford determined that, although a

line-of-duty pension under section 4-110 of the Pension Code is synonymous with a

“catastrophic injury,” the occupational disability pension that Bremer received under section

4-110.1 is not.

¶ 10   On June 1, 2008, Bremer filed a two-count complaint for a declaratory judgment and

attorney fees in the trial court.   Count I sought a declaratory judgment that the meaning of

“catastrophic injury,” as used in section 10(a) of the Benefits Act, includes “the line-of-duty

disability Occupational Diseases under Section 4-110.1 of the Illinois Pension Code.”      Bremer

also sought a declaration that Rockford was obligated to pay future health insurance premiums

for him and Sally and reimburse Bremer for any premiums he paid in 2008.           Count II sought

attorney fees under the Wage Actions Act.

¶ 11   The parties filed cross-motions for summary judgment as to count I.      On April 19, 2011,

the trial court granted Bremer’s motion and denied Rockford’s motion, declaring that the

occupational disease disability pension that Bremer received under section 4-110.1 of the

Pension Code qualified him and Sally for health care benefits under section 10 of the Benefits

Act.   The trial court ordered Rockford to reinstitute the health care benefits and to reimburse

Bremer for the premiums he paid after Rockford’s denial of his application.




                                               -4-
2015 IL App (2d) 130920


¶ 12   Count II remained pending until January 23, 2013, when the trial court granted

Rockford’s motion for summary judgment, ruling that “[the Act’s] post-employment health

insurance benefits do not qualify as ‘wages earned and due and owing according to the terms of

employment,’ ” such that, as a matter of law, Bremer was not entitled to recover attorney fees

under the Wage Actions Act.

¶ 13   Meanwhile, on May 25, 2011, the trial court granted Bremer leave to add a count III to

the complaint.   Bremer alleged that, during the period in which Rockford declined to pay the

insurance premiums, Bremer could not afford to pay for health insurance for him and Sally, and

they remained uninsured.    During that period, Bremer and Sally allegedly incurred more than

$39,000 in medical expenses, for which Bremer sought reimbursement.         Bremer also sought

$38,000 for “the premiums which ought to have been paid but were not,” as he and Sally “were

deprived of the value of these premiums and [Rockford] was unjustly enriched for failing to

comply with its obligations under the law.”

¶ 14   In May 2012, Rockford filed a combined motion to dismiss count III pursuant to sections

2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619, 2-619.1

(West 2008)).    On September 28, 2012, pursuant to section 2-615, the trial court dismissed the

claim for $38,000 for unpaid premiums.        See 735 ILCS 5/2-615 (West 2008).     Pursuant to

section 2-619, the court also dismissed Bremer’s claim for approximately $36,000 in medical

expenses relating to a one-car collision involving Sally.   See 735 ILCS 5/2-619 (West 2008).

Those expenses had been paid under Bremer’s auto insurance policy, and the trial court

determined that Bremer lacked standing to sue under the Rights of Married Persons Act,

commonly known as the Family Expense Act.        See 750 ILCS 65/15 (West 2008). Following a

hearing on August 9, 2013, regarding health insurance premiums that Bremer actually paid and



                                               -5-
2015 IL App (2d) 130920


other out-of-pocket medical expenses, the trial court ordered Rockford to pay Bremer $6,381

plus court costs under count III.

¶ 15   Rockford filed a notice of appeal, seeking review of the trial court’s grant of summary

judgment in favor of Bremer on count I.             Bremer filed a cross-appeal as to the grant of

summary judgment on count II and the dismissed portions of his damages claim under count III. 1

¶ 16                                        II. ANALYSIS

¶ 17                                     A. The Benefits Act

¶ 18   Rockford contends that the trial court erred in granting Bremer’s motion for summary

judgment, and denying Rockford’s cross-motion, on count I.         Summary judgment is appropriate

only when “the pleadings, depositions, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2008).               “A triable

issue precluding summary judgment exists where the material facts are disputed, or where, the

material facts being undisputed, reasonable persons might draw different inferences from the

undisputed facts.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).          The use of

summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit;

however, it is a drastic means of disposing of litigation and should be allowed only when the

right of the moving party is clear and free from doubt.       Springborn v. Village of Sugar Grove,

       1
           Bremer also filed a motion in this court to strike portions of Rockford’s reply brief or for

leave to file a surreply, arguing that Rockford’s reply brief raised “new points and authorities” in

violation of Illinois Supreme Court Rule 341(j) (eff. Feb. 6, 2013). We decline to strike any

portion of Rockford’s reply brief, and we deny the motion to that extent; however, we grant

Bremer leave to file a surreply brief, instanter.



                                                    -6-
2015 IL App (2d) 130920


2013 IL App (2d) 120861, ¶ 24.         We review de novo a trial court’s grant of summary judgment.

Springborn, 2013 IL App (2d) 120861, ¶ 24.

¶ 19      “When parties file cross-motions for summary judgment, they agree that only a question

of law is involved and invite the court to decide the issues based on the record.” Pielet v.

Pielet, 2012 IL 112064, ¶ 28.          However, the mere fact that cross-motions for summary

judgment have been filed does not establish that there is no issue of material fact, nor does it

obligate a court to render summary judgment. Pielet, 2012 IL 112064, ¶ 28.

¶ 20      The parties dispute the interpretation of section 10 of the Benefits Act and sections 4-110

and 4-110.1 of the Pension Code.          The fundamental objective of statutory construction is to

ascertain and give effect to the intent of the legislature.       Blum v. Koster, 235 Ill. 2d 21, 29

(2009).     The most reliable indicator of legislative intent is the statutory language, given its plain

and ordinary meaning.       Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228

Ill. 2d 200, 216 (2008).       When the statutory language is clear and unambiguous, it must be

applied as written without resort to extrinsic aids of statutory interpretation.     MidAmerica Bank,

FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009).           We will not depart from the plain

statutory language by reading into it exceptions, limitations, or conditions that conflict with the

expressed intent of the legislature.    MidAmerica Bank, FSB, 232 Ill. 2d at 565-66.

¶ 21      The trial court ordered Rockford to pay Bremer’s health insurance premiums pursuant to

section 10 of the Benefits Act, which provides in relevant part as follows:

                 “(a) An employer who employs a full-time law enforcement, correctional or

          correctional probation officer, or firefighter, who, on or after the effective date of this Act

          suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of




                                                   -7-
2015 IL App (2d) 130920


       the employer’s health insurance plan for the injured employee, the injured employee’s

       spouse, and for each dependent child of the injured employee ***.

                                              ***

              (b) In order for the law enforcement, correctional or correctional probation

       officer, firefighter, spouse, or dependent children to be eligible for insurance coverage

       under this Act, the injury or death must have occurred as the result of the officer’s

       response to fresh pursuit, the officer or firefighter’s response to what is reasonably

       believed to be an emergency, an unlawful act perpetrated by another, or during the

       investigation of a criminal act. Nothing in this Section shall be construed to limit health

       insurance coverage or pension benefits for which the officer, firefighter, spouse, or

       dependent children may otherwise be eligible.”    820 ILCS 320/10 (West 2008).

¶ 22                         1. Catastrophic Injury (Section 10(a))

¶ 23                       a. Line-of-Duty Disability (Section 4-110)

¶ 24   The parties dispute whether Bremer’s disability is synonymous with a catastrophic injury

suffered in the line of duty as required under section 10(a) of the Benefits Act.    The Pension

Code defines three types of disability: (1) a line-of-duty disability (40 ILCS 5/4-110 (West

2008)), (2) an occupational disease disability (40 ILCS 5/4-110.1 (West 2008)), and (3) a

non-line-of-duty disability (40 ILCS 5/4-111 (West 2008)).       In this case, the evidence of a

catastrophic injury under section 10(a) is confined to the 2007 proceeding in which the Board

granted Bremer an occupational disease disability pension.

¶ 25   We are guided by Krohe v. City of Bloomington, 204 Ill. 2d 392 (2003), where a

firefighter had been adjudicated disabled under section 4-110 of the Pension Code but denied




                                              -8-
2015 IL App (2d) 130920


benefits under the Benefits Act.     Our supreme court addressed the meaning of “catastrophic

injury” under section 10(a).

¶ 26   After finding the phrase to be ambiguous, the Krohe court investigated the statute’s

legislative history and debates.   Noting that “the legislative history and debates could not be

clearer” (Krohe, 204 Ill. 2d at 398) the Krohe court construed “catastrophic injury” as

“synonymous with an injury resulting in a line-of-duty disability pension under section 4-110 of

the [Pension] Code” (Krohe, 204 Ill. 2d at 400).         A firefighter is entitled to a line-of-duty

disability pension under section 4-110 if he or she, “as the result of 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, is found *** to be physically or mentally permanently disabled for service in the

fire department, so as to render necessary his or her being placed on disability pension.” 40

ILCS 5/4-110 (West 2008).

¶ 27   Relying on Krohe, this court held in Richter v. Village of Oak Brook, 2011 IL App (2d)

100114, that, “because the legislature intended an injured firefighter or police officer to be

eligible for benefits under section 10(a) of [the Benefits Act] whenever his or her injuries were

sufficient to qualify for a line-of-duty pension, the pension board’s determination in this regard

establishes as a matter of law that the firefighter or police officer received a catastrophic injury.”

Richter, 2011 IL App (2d) 100114, ¶ 16.         More recently, this court held that, where it is

undisputed that a firefighter had been awarded a line-of-duty pension, “it is an uncontroverted

fact that he was catastrophically injured for purposes of section 10(a) of the Act.” Village of

Vernon Hills v. Heelan, 2014 IL App (2d) 130823, ¶ 20.          Thus, it is well settled that, under

Krohe, the award of a line-of-duty pension under section 4-110 of the Pension Code satisfies the




                                                -9-
2015 IL App (2d) 130920


“catastrophic injury” element of section 10(a) of the Benefits Act.       Rockford unequivocally

conceded this point in its appellate brief and during oral argument.

¶ 28                   b. Occupational Disease Disability (Section 4-110.1)

¶ 29   The issue then in this case is whether a “catastrophic injury” under section 10(a) of the

Benefits Act is also synonymous with a firefighter’s occupational disease disability under section

4-110.1 of the Pension Code.    Section 4-110.1 provides, in relevant part, as follows:

                “An active firefighter with 5 or more years of creditable service who is found,

       pursuant to Section 4-112, unable to perform his or her duties in the fire department by

       reason of heart disease, stroke, tuberculosis, or any disease of the lungs or respiratory

       tract, resulting from service as a firefighter, is entitled to an occupational disease

       disability pension during any period of such disability for which he or she has no right to

       receive salary.” 40 ILCS 5/4-110.1 (West 2008).

¶ 30   Section 4-110.1 defines a firefighter’s occupational disease disability as “heart disease,

stroke, tuberculosis, or any disease of the lungs or respiratory tract, resulting from service as a

firefighter” (40 ILCS 5/4-110.1 (West 2008)), while section 4-110 defines a firefighter’s

line-of-duty disability as a “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 2008)).

¶ 31   We agree with the trial court that these provisions are similar in the way they define a

firefighter’s injury resulting in disability. Section 4-110 refers broadly to “sickness, accident or

injury,” while section 4-110.1 is more disease-specific, listing “heart disease, stroke,

tuberculosis, or any disease of the lungs or respiratory tract.” The conditions specified in

section 4-110.1 are examples of injuries that are also covered by section 4-110.



                                               - 10 -
2015 IL App (2d) 130920


¶ 32       A line-of-duty disability pension requires that the applicant’s sickness, accident, or injury

be “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 2008).              “Act of duty” is specifically defined 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 duty, having for its

direct purpose the saving of the life or property of another person.” 40 ILCS 5/6-110 (West

2008).

¶ 33       Section 4-110.1 applies to “heart disease, stroke, tuberculosis, or any disease of the lungs

or respiratory tract, resulting from service as a firefighter” or “a disabling cancer, which develops

or manifests itself during a period while the firefighter is in the service of the fire department.”

(Emphases added.) 40 ILCS 5/4-110.1 (West 2008).               In describing the occupational disease

disability pension, the legislature acknowledged that firefighters are subject to exposure to heat,

cold, heavy smoke fumes, and carcinogenic, poisonous, toxic, or chemical gasses from fires “and

that these conditions exist and arise out of or in the course of employment.” (Emphasis added.)

40 ILCS 5/4-110.1 (West 2008).

¶ 34       Thus, a line-of-duty pension must result from an act of duty or cumulative acts of duty,

which are specifically defined under section 6-110 of the Pension Code, but an occupational

disease disability must result from “service as a firefighter,” which is not specifically defined by

statute.     However, neither section 10(a) nor the legislators’ comments discussed in Krohe

mention “acts of duty” as the basis for finding a catastrophic injury; rather, they refer generally

to an injury suffered in the line of duty. The legislature provided different requirements for

line-of-duty and occupational disease pensions, but the causation requirement under the Benefits




                                                  - 11 -
2015 IL App (2d) 130920


Act is specifically set forth in section 10(b), but not 10(a), such that the differences are not

relevant to identifying a catastrophic injury suffered in the line of duty under section 10(a).

¶ 35   The Krohe court held that any injury required for a line-of-duty disability pension under

section 4-110 of the Pension Code satisfies the “catastrophic injury” element of section 10(a) of

the Benefits Act. We agree with the trial court that there is “no meaningful distinction between

a line-of-duty disability based on sickness resulting from cumulative acts of duty (section 4-110),

and an occupational disease disability based on cardiomyopathy resulting from service as a

firefighter (section 4-110.1).” For the purpose of our statutory interpretation in this case, Krohe

supports our determination that “catastrophic injury” under section 10(a) of the Benefits Act is

synonymous with Bremer’s cardiomyopathy, the injury for which he was eligible for an

occupational disease disability pension under section 4-110.1.

¶ 36   We further note that sections 4-110 and 4-110.1 use an identical method for calculating

disability pensions, which also supports our conclusion.           Each statute provides that the

firefighter shall be entitled to a disability pension equal to the greater of (1) 65% of the salary

attached to the rank held by the firefighter in the fire department at the date he or she is removed

from the municipality’s fire department payroll or (2) the retirement pension that the firefighter

would be eligible to receive if he or she retired (but not including any automatic annual increase

in that retirement pension). 40 ILCS 5/4-110, 4-110.1 (West 2008).           Moreover, each statute

provides that the firefighter shall also be entitled to a child’s disability benefit of $20 per month

for each child who is natural born or legally adopted, under 18 years old, and dependent upon the

firefighter for support.   Under each statute, the total child’s disability benefit payable to the

firefighter, when added to the firefighter’s disability pension, shall not exceed 75% of the salary




                                                - 12 -
2015 IL App (2d) 130920


that the firefighter was receiving at the end of his or her employment.         40 ILCS 5/4-110,

4-110.1 (West 2008).

¶ 37   In contrast, a firefighter eligible for a non-line-of-duty disability pension under section

4-111 of the Pension Code receives less.     “A firefighter having at least 7 years of creditable

service who becomes disabled as a result of any cause other than an act of duty, and who is

found, pursuant to Section 4-112, to be physically or mentally permanently disabled so as to

render necessary his or her being placed on disability pension, shall be granted a disability

pension of 50% of the monthly salary attached to the rank held by the firefighter in the fire

service at the date he or she is removed from the municipality’s fire department payroll.” 40

ILCS 5/4-111 (West 2008).

¶ 38   The legislature’s methodology in calculating the three pensions indicates that, unlike a

non-line-of-duty disability under section 4-111, an occupational disease disability under section

4-110.1 is to be treated the same as a line-of-duty disability under section 4-110, for purposes of

determining the existence of a catastrophic injury under section 10(a) of the Benefits Act.

¶ 39   Rockford argues that “Bremer is ineligible for [Benefits Act] benefits because he did not

apply for or receive a line-of-duty pension, which is required under [the Benefit Act’s] clear

legislative history.” (Emphasis added.) This is not accurate.      Nowhere does the Benefits Act

or Krohe and its progeny hold that the failure to receive a line-of-duty pension (or even apply for

one) precludes someone from receiving benefits under the Act.

¶ 40   Rockford also quarrels with the trial court’s comment that Bremer likely would have

qualified for a line-of-duty pension under section 4-110 if he had applied for one.      Rockford

argues that the court abused its discretion by usurping the Board’s exclusive authority to decide

pension applications.   We disagree. The court did not base its determination that Bremer was



                                              - 13 -
2015 IL App (2d) 130920


eligible for benefits on a finding that he was eligible for a line-of-duty pension.       Rather, the

court concluded that Bremer’s occupational disease disability was synonymous with a

catastrophic injury under section 10(a).

¶ 41     We further disagree with Rockford that Rokosik v. Retirement Board of the Firemen’s

Annuity & Benefit Fund, 374 Ill. App. 3d 158 (2007), compels a different result.          In Rokosik,

two Chicago firemen were granted occupational disease disability benefits by the retirement

board.       When the firemen later died, their widows sought from the board line-of-duty widow

annuities under section 6-140 of the Pension Code; instead, they were awarded non-duty-related

widow annuities pursuant to section 6-141.1. 2      One premise of the widows’ argument was “that

the requirements for establishing a duty disability and an occupational disability are the same.”

Rokosik, 374 Ill. App. 3d at 168.     The appellate court rejected this premise, concluding that duty

disability benefits and occupational disability benefits have different requirements:

                  “In contrast to an occupational duty disability benefit under section 6-151.1 of the

         [Pension] Code, which requires a fireman with a disease other than cancer to establish

         that the disease resulted from his ‘service as a fireman,’ a section 6-151 duty disability

         benefit requires a fireman to establish that he became disabled ‘as the result of a specific

         injury, or of cumulative injuries, or of specific sickness incurred in or resulting from an

         act or acts of duty.’ (Emphasis added.) 40 ILCS 5/6-151 (West 2004). Furthermore,

         whereas an occupational duty disability compensates firemen who are repeatedly exposed

         to inherently dangerous environments and conditions and is not awarded to firemen who

         2
             Sections 6-140 and 6-141.1 of the Pension Code apply to municipalities with populations

of more than 500,000 and are worded slightly differently from the Pension Code provisions at

issue in this case.



                                                 - 14 -
2015 IL App (2d) 130920


       have completed less than seven years of service, a duty disability seeks to compensate

       firemen for injuries or conditions sustained as a result of specific, identifiable act or acts

       of duty and is not conditioned upon completion of a fixed number of years of service.

       Finally, the benefit provided for duty disability is not 65% of a fireman’s salary but,

       rather, is 75% of a fireman’s salary.    40 ILCS 5/6-151 (West 2004).      In short, contrary

       to [the widows’] contention, the requirements for establishing entitlement to occupational

       and duty disability benefits are not the same.     Accordingly, for the foregoing reasons,

       we reject [the widows’] argument that section 6-140 of the [Pension] Code, the statutory

       provision governing duty annuities, entitles widows of occupationally disabled firemen to

       receive a duty annuity as a matter of law when their husbands’ disability permanently

       prevented them from resuming active service.”      Rokosik, 374 Ill. App. 3d at 170-71.

¶ 42   The Rokosik court’s discussion of the differences in the causation requirements for

line-of-duty and occupational disease disability pensions is accurate.             However, those

differences are not relevant to a section 10(a) determination regarding catastrophic injury,

because, as discussed, section 10(b) sets forth the causation requirement for the Benefits Act.

Moreover, the Rokosik court emphasized that the benefit for a duty disability is 75% of a

firefighter’s salary under section 6-151, while the benefit for an occupational disease disability is

65% of his salary under section 6-151.1.    However, that discrepancy in benefit does not exist in

sections 4-110 and 4-110.1 of the Pension Code, each of which provides for a 65% salary

benefit, with a maximum 75% salary benefit.

¶ 43   The dissent focuses on the different causation requirements for line-of-duty and

occupational disease disability pensions.    While we refuse to respond in kind to the hyperbolic

tone of the dissent, we certainly recognize that there are differences in the pension requirements.



                                               - 15 -
2015 IL App (2d) 130920


The occupational disease disability pension may be available to some firefighters who would be

excluded from eligibility for a line-of-duty pension, and vice versa.      Our analysis addresses

whether the holding in Krohe applies to an occupational disease disability pension, i.e., whether

the phrase “catastrophic injury” in section 10(a) is “synonymous” with an injury or disease

resulting in a pension under section 4-110.1.     See Krohe, 204 Ill. 2d at 400.   For the reasons

stated above, we determine that it is.

¶ 44                               2. Causation (Section 10(b))

¶ 45   The trial court was faced with the questions of whether (1) Bremer was catastrophically

injured (see 820 ILCS 320/10(a) (West 2008)) and (2) if so, whether the injury occurred as the

result of a response “to what is reasonably believed to be an emergency, an unlawful act

perpetrated by another, or during the investigation of a criminal act” (see 820 ILCS 320/10(b)

(West 2008)).    Although we conclude that, as a matter of law, an occupational disease disability

under section 4-110.1 of the Pension Code is synonymous with a catastrophic injury under

section 10(a) of the Benefits Act, that determination is not dispositive of whether the trial court

erred in granting Bremer summary judgment on his Benefits Act claim.            A question of fact

regarding section 10(b) precludes summary judgment.

¶ 46   “The plain language of subsection (b) provides that public safety employees will receive

section 10 benefits when the injury or death occurs as a result of: (1) a response to fresh pursuit;

(2) a response to what is reasonably believed to be an emergency; (3) an unlawful act of another;

or (4) the investigation of a criminal act.” Gaffney v. Board of Trustees of the Orland Fire

Protection District, 2012 IL 110012, ¶ 57 (citing 820 ILCS 320/10(b) (West 2006)).        The four

factors set forth different types of scenarios encountered by public safety employees.     Gaffney,

2012 IL 110012, ¶ 57.



                                                - 16 -
2015 IL App (2d) 130920


¶ 47      In this case, Bremer argues that he is eligible for benefits under section 10 of the Benefits

Act because his condition resulted from the cumulative effect of his “response[s] to what is

reasonably believed to be an emergency.” 820 ILCS 320/10(b) (West 2008).                In support of

their motions for summary judgment, the parties filed a transcript of the Board’s hearing on

Bremer’s occupational disease disability pension application, including the reports and opinions

of several physicians and the Board’s findings.      To its motion for summary judgment, Rockford

also submitted an affidavit from one of its arson investigators regarding the scope of Bremer’s

employment as it related to his application for benefits under the Benefits Act.           In granting

Bremer’s motion, the trial court cited the Board’s findings that most of Bremer’s calls over his

27 years of service were in response to emergencies and that the calls occurred daily and caused

significant stress.

¶ 48      However, to be eligible for a section 4-110.1 occupational disease disability pension,

Bremer’s cardiomyopathy need only have “result[ed] from service as a firefighter.” (Emphasis

added.) 40 ILCS 5/4-110.1 (West 2008).             Thus, the Board was charged with determining

whether the injury resulted from Bremer’s service as a firefighter.          The Board exceeded its

obligation when it articulated the specific acts of service that it found to be the cause of Bremer’s

injury.    Since the Board’s decision to grant the pension did not require findings regarding the

nature of Bremer’s service as a firefighter, the trial court improperly relied on the Board’s dicta

on the matter. An examination of Gaffney and Pedersen v. Village of Hoffman Estates, 2014 IL

App (1st) 123402, illustrates that a section 10(b) determination is a fact-specific endeavor.

¶ 49      In Gaffney, our supreme court defined the legal standard for determining an emergency

under section 10(b) of the Benefits Act.         The Gaffney court held that “[t]o be entitled to

continuing health coverage benefits under section 10(b), the injury must occur in response to



                                                 - 17 -
2015 IL App (2d) 130920


what is reasonably believed to be an unforeseen circumstance involving imminent danger to a

person or property requiring an urgent response.”        Gaffney, 2012 IL 110012, ¶ 64.

¶ 50    Gaffney involved two consolidated cases.           Firefighter Gaffney was injured during a

training exercise involving an actual fire on the third floor of a building.    Gaffney wore full fire

gear for the exercise, and his battalion chief instructed him to treat the exercise as an actual

emergency.        The fire hose became stuck as the crew was moving it between the second and

third floors.     Due to smoke, there was no visibility.    Gaffney followed the hose back down to

the second floor and discovered that it was hooked around a loveseat.          In moving this piece of

furniture, Gaffney injured his shoulder. Gaffney, 2012 IL 110012, ¶¶ 6-8.

¶ 51    Our supreme court held that Gaffney’s training exercise became an emergency when

there arose the unforeseen event of the hose becoming stuck. Gaffney, 2012 IL 110012, ¶ 66.

This event created imminent danger and required an urgent response, as “the crew was stranded

on the stairwell to the third floor of the burning building with no visibility and no water to put

out the fire.” Gaffney, 2012 IL 110012, ¶ 66.       Moreover, when Gaffney went to free the hose,

he “put himself at risk of becoming lost and disoriented in the smoke-filled building.” Gaffney,

2012 IL 110012, ¶ 67.       The court noted that Gaffney had no “option of ending his participation

in the exercise after it became an emergency.”     Gaffney, 2012 IL 110012, ¶ 67.

¶ 52    The other firefighter in Gaffney, Lemmenes, also was injured during a training exercise.

The exercise took place at an abandoned factory, where the firefighters were required to wear

full fire gear.    There was no actual fire, but the firefighters’ masks were blackened to simulate

live fire conditions, and they were told to act as if there was an emergency.         The firefighters

were instructed that a fellow firefighter was trapped inside the building, was running out of air,

and would die if not found and rescued.      The firefighters were given specific instructions for the



                                                - 18 -
2015 IL App (2d) 130920


exercise, including a path for running the fire hose into the building.           Fire department

supervisors testified that the individual acting as the trapped firefighter was never in real danger

during the exercise, which was performed under “ ‘controlled conditions.’ ” Gaffney, 2012 IL

110012, ¶¶ 21-24.

¶ 53   Lemmenes was injured when he attempted to free the trapped firefighter.       Gaffney, 2012

IL 110012, ¶ 22.     Our supreme court held that Lemmenes could not have reasonably believed

that he was responding to an “emergency” under section 10(b).           The court noted that the

exercise was conducted under “ ‘controlled conditions,’ ” no one was in imminent danger at any

point during the exercise, and “[n]o unexpected or unforeseen developments arose during th[e]

drill, unlike the situation in Gaffney where the hose line became entangled in an unknown

object.” Gaffney, 2012 IL 110012, ¶ 77.

¶ 54   In Pederson, firefighter Pederson and others responded to a call regarding a tanker truck

fire on an Illinois toll road and proceeded to the location in full gear, with emergency lights and

siren activated.    After the fire was extinguished, while Pedersen and other firefighters were

cleaning the scene and packing their equipment, the fire engine remained positioned to protect

the firefighters, who were still working upon the toll road.   The fire engine’s emergency lights

remained activated as an additional safeguard for the firefighters.       Pedersen was returning

safety triangles from the tanker truck and was within feet of the fire engine when the siren was

inadvertently and unexpectedly activated, causing hearing loss.    The appellate court determined

that Pedersen’s testimony regarding these facts fell within the scope of a response to what was

reasonably believed to be an emergency under section 10(b) of the Benefits Act, notwithstanding

the municipality’s opinion to the contrary.   The appellate court concluded that it was reasonable

for Pederson to believe that the emergency was ongoing and that the scene remained dangerous.



                                               - 19 -
2015 IL App (2d) 130920


Accordingly, Pedersen was injured as the result of an unforeseen circumstance involving

imminent danger to a person or property requiring an urgent response.     Pedersen, 2014 IL App

(1st) 123402, ¶ 58 (citing Gaffney, 2012 IL 110012, ¶ 66).

¶ 55   The question of whether an emergency exists is not categorical, but depends on the

circumstances of the moment.       An event or incident that is not initially an emergency can

become an emergency as the circumstances change.         Pedersen, 2014 IL App (1st) 123402, ¶ 58

(citing Gaffney, 2012 IL 110012, ¶ 66).     Even in light of the Board’s findings about Bremer’s

service as a firefighter, the materials submitted in support of the cross-motions for summary

judgment raise a question of fact concerning whether Bremer’s cardiomyopathy was a result of a

response to what was reasonably believed to be an emergency under section 10(b).             This

question of fact precludes the entry of summary judgment on his section 10 claim. 3

¶ 56                                   B. Wage Actions Act

¶ 57   Bremer cross-appeals from the trial court’s grant of summary judgment in favor of

Rockford on count II of the complaint, which sought the recovery of attorney fees pursuant to the

Wage Actions Act.      The Wage Actions Act provides in relevant part as follows:

       “Whenever a[n] *** employee brings an action for wages earned and due and owing

       according to the terms of the employment, and establishes by the decision of the court or

       3
           In Pedersen, the Village, as a home-rule unit, was authorized to develop procedures for

reviewing claims under the Benefits Act. Pedersen, 2014 IL App (1st) 123402, ¶ 37 (“a home

rule unit may employ an administrative procedure for assessing claims without acting in a manner

inconsistent with the requirements of the [Benefits] Act”). Here, Rockford does not argue that it

has such procedures in place or that Bremer must exhaust his administrative remedies before filing

his declaratory judgment action in the trial court.



                                                - 20 -
2015 IL App (2d) 130920


       jury that the amount for which he or she has brought the action is justly due and owing,

       and that a demand was made in writing at least 3 days before the action was brought, for

       a sum not exceeding the amount so found due and owing, then the court shall allow to the

       plaintiff a reasonable attorney fee of not less than $10, in addition to the amount found

       due and owing for wages, to be taxed as costs of the action.” (Emphasis added.) 705

       ILCS 225/1 (West 2008).

¶ 58   After paying the health insurance premiums for three years, Rockford stopped paying in

March 2008.    Bremer’s claim under the Wage Actions Act represents the premiums that he paid

after Rockford refused to do so.   Bremer made his demand for reimbursement for the premiums

on May 20, 2008.    Bremer seeks “the sum of $2,214 in health insurance premiums representing

two months of premiums which [Rockford] refused to pay.”

¶ 59   The Wage Actions Act applies to actions “for wages earned and due and owing according

to the terms of the employment.” The trial court concluded that “[u]nder Section 1 of the Act’s

statutory language, health insurance benefits under the [Wage Actions] Act do not qualify as

‘wages earned and due and owing according to the terms of employment’ as they are not

payments to an employee for services rendered.”       We agree.   Benefits under the Benefits Act

are postemployment benefits.   As our supreme court has stated:

       “According to the relevant legislative history, then, [the Benefits Act] was enacted to

       protect officers who already have been forced into retirement by a line-of-duty injury.

       It provides a postemployment benefit, designed to ensure that the termination of an

       officer’s employment, whether by death or by injury, does not likewise precipitate the

       termination of his or her family’s employer-sponsored health insurance coverage.     This




                                             - 21 -
2015 IL App (2d) 130920


       is how the legislative sponsors understood [the Benefits Act], and it is how we

       understand it as well.

              Notably, this reading of [the Benefits Act] makes perfect sense from a public

       policy standpoint. Again, according to [the Benefits Act’s] legislative sponsors, one of

       [the Benefits Act’s] primary purposes is to continue the provision of employer-sponsored

       health insurance coverage for officers and the families of officers who, due to a

       line-of-duty injury, have been forced to take a line-of-duty disability pension.   That is,

       [the Benefits Act] ensures a continuation of health insurance coverage following the

       termination of the officer’s employment.   The reason this makes sense is that, unless and

       until the officer’s employment is terminated by the awarding of a line-of-duty disability

       pension, he remains an employee of the municipality in question and therefore fully

       eligible for all employee benefits, including his employer-sponsored health insurance

       coverage.   In other words, prior to the awarding of a line-of-duty disability pension, an

       injured officer’s employer-sponsored health insurance coverage would ‘continue’

       whether or not [the Benefits Act] was on the books.” Nowak v. City of Country Club

       Hills, 2011 IL 111838, ¶¶ 16-17.   (Emphases in original and added.)

¶ 60   Bremer relies on several dictionaries to define “wage”; however, each definition refers to

“hired person,” “employee,” or “employer.” See Black’s Law Dictionary 1416 (5th ed. 1979);

Webster’s Third New International Dictionary 2568 (1986).      None of those definitions applies

to a person who is no longer employed, which is a sine qua non of receiving benefits under

section 10.   In no case can the section 10 benefits, which can be granted only after the

termination of a claimant’s employment, be considered “wages” under the Wage Actions Act.

We hold, as a matter of law, that section 10 benefits are not wages under the Wage Actions Act.



                                             - 22 -
2015 IL App (2d) 130920


Although we reverse the trial court’s judgment and remand as to whether benefits should be

ordered under the Benefits Act, Bremer could not prevail on his Wage Actions Act claim even if

he ultimately receives benefits.     Therefore, we affirm the trial court’s grant of summary

judgment for Rockford on count II of the complaint.

¶ 61                         C. Reimbursement of Medical Expenses

¶ 62   Bremer next contends that the trial court erred in dismissing in part his claim arising

during a period in which Bremer and his wife were uninsured.         Bremer seeks (1) the value of

the health insurance premiums that went unpaid during this period and (2) the medical expenses

that Bremer’s automobile insurance company paid after Sally was injured in a one-car accident.

Since we have reversed and remanded for further proceedings on count I, there is no judgment

requiring Rockford to pay any health insurance premiums for Bremer or his wife.          Thus, any

claim for damages that is based on Rockford’s failure to pay such premiums is not ripe for

adjudication, and we vacate the trial court’s rulings on count III of the complaint.

¶ 63                                    III. CONCLUSION

¶ 64   For these reasons, the judgment of the circuit court of Winnebago County is affirmed in

part, reversed in part, and vacated in part, and the cause is remanded for further proceedings.

¶ 65   Affirmed in part, reversed in part, and vacated in part; cause remanded.

¶ 66   JUSTICE McLAREN, concurring in part and dissenting in part.

¶ 67   I concur with the majority holding regarding the Wage Action Act.

¶ 68   However, I dissent from the majority’s Benefits Act analysis and its holding that “an

occupational disease disability pension granted under section 4-110.1 of the Pension Code

satisfies the ‘catastrophic injury’ element of section 10(a)” of the Act.         Supra ¶ 1.      The

majority’s utter confusion on this issue is encapsulated in paragraph 34, which I repeat here:



                                               - 23 -
2015 IL App (2d) 130920


               “Thus, a line-of-duty pension must result from an act of duty or cumulative acts

       of duty, which are specifically defined under section 6-110 of the Pension Code, but an

       occupational disease disability must result from ‘service as a firefighter,’ which is not

       specifically defined by statute.    However, neither section 10(a) nor the legislators’

       comments discussed in Krohe mention ‘acts of duty’ as the basis for finding a

       catastrophic injury; rather, they refer generally to an injury suffered in the line of duty.

       The legislature provided different requirements for line-of-duty and occupational disease

       pensions, but the causation requirement under the Benefits Act is specifically set forth in

       section 10(b) such that the differences are not relevant to identifying a catastrophic injury

       suffered in the line of duty under section 10(a).”   (Emphasis added.) Supra ¶ 34.

¶ 69   There is a very good reason why “neither section 10(a) nor the legislators’ comments

discussed in Krohe mention ‘acts of duty’ as the basis for finding a catastrophic injury.” That

is, “acts of duty” is a requirement only for obtaining a line-of-duty disability pension from the

pension board, not for obtaining insurance benefits under the Benefits Act.        The plaintiff in

Krohe had already obtained a line-of-duty pension; he had already proven to the pension board

that he had been injured in the line of duty.     The City of Bloomington did not contest the

finding of the pension board as establishing the plaintiff’s injury; it contested the trial court’s

interpretation of “catastrophic injury” in section 10(a) as meaning “any injury resulting in a

line-of-duty disability under section 4-110” of the Pension Code.              Krohe v. City of

Bloomington, 329 Ill. App. 3d 1133, 1134 (2002).       Our supreme court then held that the phrase

“catastrophic injury” is “synonymous with an injury resulting in a line-of-duty disability under

section 4-110 of the Code.” Krohe, 204 Ill. 2d at 400.      Krohe involved an analysis of section

10 of the Benefits Act, which involves its own set of requirements that must be proved before



                                              - 24 -
2015 IL App (2d) 130920


insurance benefits may be ordered. The majority confuses the requirements that must be fulfilled

in order to obtain a pension under the Pension Code with the requirements that must be fulfilled

under section 10 of the Benefits Act. They are not the same. An application for a pension and an

application for Benefits Act benefits involve different proceedings before different tribunals

considering (potentially) different evidence presented by different parties regarding different

causes of action.

¶ 70   The majority relies on Krohe and its progeny, including Richter, 2011 IL App (2d)

100114, and Village of Vernon Hills, 2014 IL App (2d) 130823, to blithely assert that “it is well

settled that *** the award of a line-of-duty pension under section 4-110 of the Pension Code

satisfies the ‘catastrophic injury’ element of section 10(a) of the Benefits Act.” Supra ¶ 27.

However, I must point out that our supreme court has allowed the petition for leave to appeal in

the most recent case in that line, Village of Vernon Hills.   See Village of Vernon Hills v. Heelan,

No. 118170 (Nov. 26, 2014).     In Village of Vernon Hills, I filed a dissent in which I noted that a

pension board’s grant of a line-of-duty disability pension is not irrefutable proof of a catastrophic

injury under section 10(a) in a declaratory judgment proceeding in a trial court:

               “A litigant in a trial court is entitled to have the merits of his case decided by the

       trial court.   Due process is not served when findings of fact and conclusions of law of a

       different tribunal, with no subject matter jurisdiction over the issue raised, in a different

       case in which the litigant was not a party and in which the litigant had no right to

       intervene, are binding on the trial court such that the litigant cannot contest the cause of

       action, demand strict proof thereof, obtain discovery, present evidence, have the trial

       court determine the credibility of the witnesses and the weight to be accorded to their




                                               - 25 -
2015 IL App (2d) 130920


       testimony, and generally defend against judgment being entered against it.” Village of

       Vernon Hills, 2014 IL App (2d) 130823, ¶ 49 (McLaren, J., dissenting).

Perhaps the issue is not as well settled as the majority asserts.

¶ 71   Even assuming, arguendo, that the granting of a line-of-duty pension by a pension board

is irrefutable proof sufficient to satisfy the requirements of section 10(a) of the Benefits Act

(despite the fact that a municipality has no right to participate in the proceedings before the

pension board), I would still disagree with the majority’s expansion of Krohe to include the

granting of an occupational disease disability pension as satisfaction of section 10(a).       The

legislature has provided different requirements for the two types of pensions.    The line-of-duty

pension requires that the applicant’s sickness, accident, or injury be “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 2008).     “Act of duty” is specifically defined 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 duty, having for its direct purpose the saving of the

life or property of another person.” 40 ILCS 5/6-110 (West 2008). 4       However, in describing

the occupational disease disability pension, the legislature acknowledged that firefighters are

subject to exposure to heat, cold, heavy smoke fumes, and carcinogenic, poisonous, toxic, or

chemical gasses from fires “and that these conditions exist and arise out of or in the course of

employment.” (Emphasis added.) 40 ILCS 5/4-110.1 (West 2008).              The legislature did not

require that an illness sufficient for an award of an occupational disease disability pension arise

       4
           The definition of “act of duty” stated in section 6-110 applies to section 4-110 under

Jensen v. East Dundee Fire Protection District Firefighters’ Pension Fund Board of Trustees, 362

Ill. App. 3d 197, 203-04 (2005).



                                                - 26 -
2015 IL App (2d) 130920


from an act or acts of duty; instead, a firefighter need prove only “heart disease, stroke,

tuberculosis, or any disease of the lungs or respiratory tract, resulting from service as a

firefighter” or “a disabling cancer, which develops or manifests itself during a period while the

firefighter is in the service of the fire department.” (Emphases added.)       Id.   Inexplicably, the

majority finds the fact that sections 4-110 and 4-110.1 use the same method to calculate the

respective pensions more important than the fact that sections 4-110 and 4-110.1 have different

requirements for granting the pensions.    See supra ¶ 36.

¶ 72   When the legislature uses certain language in one section of a statute and different

language in another part, we may assume that the legislature intended different meanings.

People v. Fredericks, 2014 IL App (1st) 122122, ¶ 23.         Here, different meanings are manifest.

A firefighter’s actions in his “service as a firefighter” or in the “service of the fire department”

are much more extensive than his specific acts of duty that have for their direct purpose the

saving of the life or property of another person.       Firefighters may be exposed to heat, cold, or

harmful gasses after a fire is already extinguished, or may be exposed to diesel fumes merely by

being present for long periods in the firehouse.        We also see that the legislature intended to

differentiate between occupational disease pensions and line-of-duty pensions in the fact that the

occupational disease pension is available only to firefighters with five or more years of service,

while the line-of-duty pension is available to any firefighter who is sickened or injured by the

performance of an act or acts of duty.        See 40 ILCS 5/4-110, 110.1 (West 2008).             The

occupational disease pension is applicable to less intense, but nevertheless inherently harmful,

exposures that occur over the career of a firefighter, as opposed to acute exposures in the course

of saving lives or property from fire.   See Rokosik, 374 Ill. App. 3d at 170-71.     In Rokosik, one

premise of the appellants’ argument was “that the requirements for establishing a duty disability



                                               - 27 -
2015 IL App (2d) 130920


and an occupational disability are the same.”           Id. at 168.    The appellate court rejected this

premise.      Id. at 169.    The majority here finds the Rokosik court’s rejection of the same

argument now raised in this case to be irrelevant for the same misbegotten reason I described

above (supra ¶ 69).

¶ 73      The majority agrees with the trial court “that there is ‘no meaningful distinction between

a line-of-duty disability based on sickness resulting from cumulative acts of duty (section 4-110),

and an occupational disease disability based on cardiomyopathy resulting from service as a

firefighter (section 4-110.1).’ ”      Supra ¶ 35.     The majority even finds that the “conditions

specified in section 4-110.1 [heart disease, stroke, tuberculosis, or any disease of the lungs or

respiratory tract] are examples of injuries that are also covered by section 4-110.” Supra ¶ 31.

What, then, is the purpose of having separate line-of-duty and occupational disease disability

pensions that both apply to sickness?          Not only are we to assume that the use of different

language in different parts of a statute is evidence that the legislature intended different meanings

(see supra ¶ 72), “[e]ach word, clause, and sentence of the statute, if possible, must be given

reasonable meaning and not rendered superfluous.” Brucker v. Mercola, 227 Ill. 2d 502, 514

(2007).     Under the majority analysis, section 4-110.1 is utterly superfluous; worse still, its

restrictive application to active firefighters with five or more years of creditable service is not

only superfluous, it is nonsensical.

¶ 74      Interestingly, the majority is inconsistent in the authority that it accords to different parts of

a pension board’s findings. The majority finds that the granting of a pension is, in the words of

Village of Vernon Hills, “ ‘an uncontroverted fact that [the claimant] was catastrophically injured

for purposes of section 10(a) of the Act.’ Village of Vernon Hills v. Heelan, 2014 IL App (2d)

130823, ¶ 20.” Supra ¶ 27. Thus, according to the majority, the Board’s findings relative to its



                                                   - 28 -
2015 IL App (2d) 130920


conclusion that a pension should be granted are, in fact, binding on the trial court. However, the

Board’s findings in this case “that most of Bremer’s calls over his 27 years of service were in

response to emergencies and that the calls occurred daily and caused significant stress” (supra

¶ 47) are considered by the majority to be dicta such that the trial court “improperly relied” on

them. Supra ¶ 48. The majority calls these findings dicta because “the Board was charged with

determining whether the injury resulted from Bremer’s service as a firefighter [under section

4-110.1]” and the Board “exceeded its obligation when it articulated the specific acts of service

that it found to be the cause of Bremer’s injury.”      Supra ¶ 48.   However, the Board was also

charged with determining whether Bremer was unable to perform his duties in the fire

department because of a disease “resulting from service as a firefighter” (section 4-110.1), not

with whether he suffered “a catastrophic injury *** in the line of duty” (section 10(a)).

¶ 75   I agree that, in determining whether to grant a pension, the Board is charged with making

findings different from those necessary for an award of benefits under the Benefits Act. As I have

stated, an application for a pension and an application for Benefits Act benefits involve different

proceedings before different tribunals considering (potentially) different evidence presented by

different parties regarding different causes of action. None of the Board’s findings regarding the

granting of a pension should be relevant to, let alone binding on, the trial court in an action for

Benefits Act benefits. The majority’s attempt to distinguish between “irrefutable” findings and

findings that are mere dicta has no rational basis.

¶ 76   The actual question before the trial court in this case, pursuant to section 10(a) of the

Benefits Act, was whether Bremer was catastrophically injured. Rockford’s motion for summary

judgment contained a stipulated statement of facts and stipulated exhibits that included, among

other things, transcripts of Bremer’s hearing before the Board and the Board’s written decision.



                                               - 29 -
2015 IL App (2d) 130920


However, missing from the stipulated evidence were all the exhibits considered by the Board,

including the medical reports submitted by Bremer and the Board.             In the absence of any

medical evidence, there was no genuine issue of material fact as to whether Bremer suffered a

catastrophic injury. Due to the lack of medical evidence, Rockford was entitled to judgment as a

matter of law.        Instead, the trial court based its judgment on the Board’s grant of the

occupational disease pension, the court’s own unique interpretation and extension of Krohe, and

the irrelevant issues of which pensions the Pension Board awarded or could have awarded, had

such pensions actually been requested.    It was the duty of the trial court to evaluate the actual

evidence before it to determine whether Bremer was catastrophically injured, not to determine

whether Bremer could have been awarded a line-of-duty pension if he had applied for one.        The

determination of whether Bremer was catastrophically injured should have been based on

evidence presented to the court, not on the Board’s findings, conclusions, decision, and

non-decision regarding that evidence.     Otherwise, the trial court’s role is akin to administrative

review of the Board as opposed to the finder of fact in a declaratory judgment case.     Neither the

trial court nor the majority here seem to remember that an application for a pension and an

application for Benefits Act benefits involve different proceedings before different tribunals

considering (potentially) different evidence presented by different parties regarding different

causes of action. 5



        5
            Rockford was not a party before the pension board and had no right to be a party. A

municipality currently does not have a right to intervene in such a case, although a pension board

has the discretion to permit such an intervention. See Williams v. Board of Trustees of Morton

Grove Firefighters’ Pension Fund, 398 Ill. App. 3d 680, 688-89 (2010).



                                               - 30 -
2015 IL App (2d) 130920


¶ 77   The majority creates anomalous comparisons, muddles and confuses statutory

requirements, and disregards the maxims of statutory construction in order to expand an

already-flawed interpretation of Krohe. Therefore, I must dissent.




                                             - 31 -
