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                                     Appellate Court                          Date: 2016.02.09
                                                                              14:02:30 -06'00'




        Swoboda v. Board of Trustees of the Village of Sugar Grove Police Pension Fund,
                                  2015 IL App (2d) 150265



Appellate Court          THOMAS SWOBODA, Plaintiff-Appellant, v. THE BOARD OF
Caption                  TRUSTEES OF THE VILLAGE OF SUGAR GROVE POLICE
                         PENSION FUND and THE VILLAGE OF SUGAR GROVE,
                         Defendants-Appellees.



District & No.           Second District
                         Docket No. 2-15-0265


Filed                    December 23, 2015



Decision Under           Appeal from the Circuit Court of Kane County, No. 14-MR-721; the
Review                   Hon. David R. Akemann, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Craig S. Mielke, of Foote Mielke Chavez & O’Neil, LLC, of Geneva,
Appeal                   for appellant.

                         Michael Resis, of SmithAmundsen LLC, of Chicago, and Ellen L.
                         Green and Julie A. Proscia, both of SmithAmundsen LLC, of St.
                         Charles, for appellee Village of Sugar Grove.

                         Richard J. Reimer, Keith A. Karlson, and Brian J. LaBardi, all of
                         Reimer, Dobrovolny & Karlson LLC, of Hinsdale, for appellee Board
                         of Trustees of the Village of Sugar Grove Police Pension Fund.
     Panel                     JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                               Justices Hutchinson and Burke concurred in the judgment and
                               opinion.


                                                 OPINION

¶1         Plaintiff, Thomas Swoboda, appeals from an order of the circuit court of Kane County
       affirming the decision of the Board of Trustees of the Village of Sugar Grove Police Pension
       Fund (Board) denying plaintiff’s application for line-of-duty disability benefits and instead
       awarding him nonduty benefits. We affirm.
¶2         Plaintiff filed his application on February 4, 2013, and the Board later granted the Village
       of Sugar Grove (Village) leave to intervene in the proceedings. Evidence admitted at the
       hearing on plaintiff’s application establishes that plaintiff joined the Sugar Grove police
       department (Department) in 2005. On October 15, 2011, plaintiff participated in
       physical-fitness testing conducted by the Department. Plaintiff testified that he learned about
       the testing “[e]ither by e-mail from Chief Sauer or verbal.” Officer William Bruno supervised
       the testing.
¶3         As part of the testing, plaintiff performed a bench press. Asked how much weight he was
       required to bench press, plaintiff responded, “It was a certain percentage of your weight. It was
       probably 200-something, around there.” While performing the bench press, plaintiff felt a
       “pull or strain” in his shoulder. Plaintiff was able to complete the testing. Later that day he felt
       as though he had pulled a muscle in his shoulder. He sought treatment for his shoulder a few
       days later. Initially, a course of physical therapy was prescribed, but it did not result in any
       improvement. Surgery and additional physical therapy resulted in only slight improvement. A
       second surgical procedure produced no improvement, and plaintiff was unable to return to
       work as a police officer.
¶4         Bruno testified that he administered the physical-fitness testing. According to Bruno, the
       chief of police, Brad Sauer, told him to conduct the testing in the same manner that it had been
       conducted the previous year. Exhibits admitted at the hearing include an e-mail concerning
       fitness testing conducted in 2010. That e-mail indicated that all officers would be required to
       participate in the testing pursuant to the collective bargaining agreement between the Village
       and its officers and that the testing would consist of a 1.5-mile run, a 300-meter run, sit-ups,
       and a “[b]ench press–75% of body weight up to a maximum of 175 pounds or 30 consecutive
       push ups.” Asked whether participation in the testing was mandatory, Bruno responded:
                    “I don’t know. I sent the e-mail out saying let me know when you can do it on this
                weekend. If they showed up, they showed up. If they didn’t show up, I had no idea what
                would happen.”
¶5         Bruno recorded the results of the tests. He turned the results over to Sauer, but, according
       to Bruno, “what he did with it was a mystery.” Bruno testified that not every officer passed the
       tests. Bruno had no idea what happened to the officers who did not. Asked if he was aware of
       any civilian occupations with similar physical-fitness requirements, Bruno responded, “No. I
       mean, besides the NFL where they have a physical before camp. That’s about it.”



                                                    -2-
¶6          Based on this evidence, the Board found that plaintiff was entitled only to a nonduty
       disability pension. Plaintiff filed a timely complaint for administrative review and the trial
       court affirmed the Board’s decision. This appeal followed.
¶7          On appeal from a judgment in an administrative-review proceeding, we review the
       agency’s decision, not the trial court’s. Fedorski v. Board of Trustees of the Aurora Police
       Pension Fund, 375 Ill. App. 3d 371, 372 (2007). As we noted in Fedorski:
                “The agency’s findings of fact will be upheld unless against the manifest weight of the
                evidence, but rulings of law are reviewed de novo. [Citation.] An administrative
                agency’s decision on a mixed question of fact and law will be upheld unless clearly
                erroneous. [Citation.] ‘A mixed question exists where the historical facts are admitted
                or established, the rule of law is undisputed, and the only issue is whether the facts
                satisfy the settled statutory standard.’ [Citation.]” Id. at 372-73.
¶8          As pertinent here, section 3-114.1(a) of the Illinois Pension Code (Code) (40 ILCS
       5/3-114.1(a) (West 2012)) provides:
                “If a police officer as the result of sickness, accident or injury incurred in or resulting
                from the performance of an act of duty, is found to be physically or mentally disabled
                for service in the police department, so as to render necessary his or her suspension or
                retirement from the police service, the police officer shall be entitled to a disability
                retirement pension equal to *** 65% of the salary attached to the rank on the police
                force held by the officer at the date of suspension of duty or retirement ***.”
       Under section 3-114.2 of the Code (40 ILCS 5/3-114.2 (West 2012)), a police officer who
       becomes disabled as a result of any cause other than an act of duty is entitled to a pension equal
       to 50% of the salary attached to the officer’s rank at the date of suspension of duty or
       retirement.
¶9          For purposes of section 3-114.1(a), the definition of “act of duty” set forth in section 5-113
       of the Code (40 ILCS 5/5-113 (West 2012)) applies. Robbins v. Board of Trustees of the
       Carbondale Police Pension Fund, 177 Ill. 2d 533, 540-41 (1997). Section 5-113 provides, in
       pertinent part, that 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.” 40 ILCS 5/5-113 (West 2012). In accordance
       with section 5-113, the test for determining whether an act is an “act of duty” consists of two
       prongs: (1) the act must inherently involve special risk “not ordinarily assumed by a citizen in
       the ordinary walks of life” and (2) the act must be imposed by statute, ordinance, or police
       regulation. Id.
¶ 10        In its written decision, the Board concluded that plaintiff’s participation in the fitness
       testing did not involve a special risk. The Board made no specific finding with respect to the
       second prong–i.e., whether plaintiff was performing an act imposed by statute, ordinance, or
       police regulation. Plaintiff notes that the collective bargaining agreement between the Village
       and its officers gave the Department the authority to require fitness testing. In plaintiff’s view,
       the second prong was satisfied inasmuch as the collective bargaining agreement was a
       “creature of Illinois statute”–namely section 7 of the Illinois Public Labor Relations Act (5
       ILCS 315/7 (West 2012)). The Village responds that that provision “simply imposes a ‘duty to
       bargain’ on a public employer and the exclusive representative of public employees; it does not
       in any way address the duties imposed on a police officer.” The Village further argues that the

                                                    -3-
       record shows that plaintiff was injured when he attempted to bench press 200 pounds, even
       though, under the test protocol, he would have been required to bench press only 75% of his
       body weight up to a maximum of 175 pounds. Not long after plaintiff was injured, his weight
       was recorded at 220 pounds. At that weight, he would have been required to bench press 165
       pounds to pass the test. Plaintiff points to evidence in the record indicating that there was no
       bathroom scale available when the bench-press test was conducted and that Bruno asked each
       officer how much he or she weighed. That does not explain why plaintiff attempted to bench
       press 25 pounds more than was necessary to pass the test. It is not clear from the record
       whether it was plaintiff’s decision to do so or whether he did so at someone else’s behest.
¶ 11       We need not decide whether plaintiff was required to bench press 200 pounds (as opposed
       to some lower weight). Nor need we decide whether, by virtue of the collective bargaining
       agreement and the Illinois Public Labor Relations Act, participation in fitness testing satisfies
       the second prong of the “act of duty” test. Because the bench-press test did not involve “special
       risk, not ordinarily assumed by a citizen in the ordinary walks of life” (40 ILCS 5/5-113 (West
       2012)), even if we were to resolve those questions in plaintiff’s favor, his attempt to perform
       the test would not constitute an “act of duty.”1
¶ 12       In Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 114 Ill. 2d
       518, 521 (1986), our supreme court held that an activity need not be inherently dangerous to
       give rise to a special risk. The Johnson court noted that “[p]olice 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.” Id. In determining whether an officer
       is entitled to a line-of-duty benefit, the “crux is the capacity in which the police officer is
       acting.” Id. at 522. What this means is that, although Johnson “preserves the requirement that
       an act of duty be something involving a risk not shared by ordinary citizens” (Morgan v.
       Retirement Board of the Policemen’s Annuity & Benefit Fund, 172 Ill. App. 3d 273, 276
       (1988)), courts must look beyond “the precise mechanism of injury” (Alm v. Lincolnshire
       Police Pension Board, 352 Ill. App. 3d 595, 599 (2004)) when determining whether an injured
       police officer was engaged in an act of duty. Accordingly, “an officer performing duties
       involving special risks will be entitled to line-of-duty benefits even if the immediate cause of
       injury is an act involving only an ordinary risk.” Id.
¶ 13       In Johnson, a police officer assigned to direct traffic was summoned by a citizen for
       assistance in connection with a traffic accident. The officer slipped and sustained a disabling
       injury while crossing the street to respond. In holding that the officer was entitled to a
       line-of-duty disability pension, the court reasoned that the officer “was discharging his sworn
       duties *** by responding to the call of a citizen to investigate an accident.” Johnson, 114 Ill. 2d
       at 522. While the precise mechanism of the injury (slipping while crossing the street) did not
       represent any special risk of police work, it did not disqualify the officer from receiving
       line-of-duty benefits for a disabling injury incurred while discharging a duty (investigating an
       accident) that involved the protection of the public. Id. The court noted that “[t]here is no

           1
            For its part, the Board contends that it found “as a matter of fact, [that] Plaintiff failed to meet his
       burden to prove [that] he was injured while engaging in a mandatory test.” In actuality, the Board made
       no such finding (either expressly or impliedly). Although the Board’s findings of fact are entitled to
       deference, we cannot defer to a finding that was not made, particularly where–as the Board concedes is
       the case here–the record contains evidence in support of an opposite finding.

                                                        -4-
       comparable civilian occupation to that of a traffic patrolman responding to the call of a
       citizen.” Id. Similarly, in Wagner v. Board of Trustees of the Police Pension Fund, 208 Ill.
       App. 3d 25 (1991), the court held that an officer serving a notice to appear was performing a
       duty that involved a special risk and was therefore entitled to a line-of-duty disability pension
       for a disabling injury that occurred when his leg fell through a rotted plank on a porch. It did
       not matter that the precise mechanism of the injury–walking on a porch–involved no special
       risk.
¶ 14        At the same time, it is abundantly clear that not every job-related activity is an act of duty.
       For instance, clerical duties of police work do not involve a special risk, so an officer who
       sustains disabling injuries while performing such duties is not entitled to a line-of-duty
       disability pension. Morgan v. Retirement Board of the Policemen’s Annuity & Benefit Fund,
       172 Ill. App. 3d 273 (1988). Similarly, in Fedorski we held that an officer performing the
       duties of an evidence technician was acting in a capacity involving only an ordinary risk when
       the officer suffered a disabling injury in a motor-vehicle accident while returning to the police
       station after taking photographs of a crime suspect at the county jail.
¶ 15        In the case before us, the Board concluded as follows in its written decision:
                “Civilians routinely lift weights and exercise for work or personal reasons. The act of
                bench-pressing weights is not unique to police work. Many civilians lift weights on a
                regular basis. The risk of injury while lifting weights is not unique to police work.
                Civilians who work out share the same risk.”
       Plaintiff contends, however, that “[t]he testimony of Officer Bruno confirmed that no civilian
       occupations (other than professional sports) have similar physical requirements.” (Emphasis
       added.) Plaintiff insists that the record shows that ordinary citizens do not “perform similar
       fitness tests which require a bench press of 75% of body weight.” (Emphasis added.) Thus, it is
       plaintiff’s position that the salient inquiry is not whether civilians assume the risk of
       weightlifting injuries, but whether they assume that risk in their occupations. Whether this
       view is correct depends on the meaning of the phrase “ordinarily assumed by a citizen in the
       ordinary walks of life” (40 ILCS 5/5-113 (West 2012)); an act involving such a risk is not an
       “act of duty” under section 5-113. The interpretation of the pertinent statutory language
       presents a question of law, subject to de novo review. See Davis Bancorp, Inc. v. Board of
       Review of the Department of Employment Security, 393 Ill. App. 3d 135, 142 (2009).
¶ 16        As a matter of syntax, there are at least two ways to parse the phrase “ordinarily assumed
       by a citizen in the ordinary walks of life.” First, “by a citizen” and “in the ordinary walks of
       life” may be treated as separate prepositional phrases.2 Second, “by a citizen in the ordinary
       walks of life” may be treated as a single prepositional phrase containing the two aforesaid
       prepositional phrases. The significance of the distinction is that, in the first case, “in the
       ordinary walks of life” modifies “assumed,” whereas in the second case, “in the ordinary walks
       of life” modifies “citizen.” Stated differently, in the first case “by a citizen” indicates by whom
       the risk is assumed and “in the ordinary walks of life” pertains to the manner in which (i.e.,
       how) the risk is assumed. In the second case, the entire prepositional phrase “by a citizen in the
       ordinary walks of life” indicates by whom the risk is assumed; how the risk is assumed is
       immaterial.


          2
           The prepositional phrase “of life” is nested within the phrase “in the ordinary walks of life.”

                                                      -5-
¶ 17        If the term “walks of life” referred purely to occupations, both cases might produce
       reasonable interpretations. However, “walks of life” denotes both occupation and social class.
       As plaintiff notes, the term “walk[s] of life” has been defined as “referring to different types of
       jobs and different levels of society.” Cambridge Dictionary, http://dictionary.cambridge.org/
       us/dictionary/english/walk-of-life?a=british#translations (last visited Dec. 2, 2015). It is by no
       means clear how the class aspect of the term “walks of life” corresponds to particular risks.
       Thus, treating the phrase “by a citizen in the ordinary walks of life” as a single prepositional
       phrase produces the more sensible interpretation of section 5-113. As applied to “citizens,” we
       can readily comprehend what that phrase signifies: ordinary citizens from across the social
       spectrum and from various occupations. If a particular risk is one that is ordinarily assumed by
       such citizens, it is not a “special risk.” Citizens in ordinary walks of life engage in
       weightlifting. Whether they do so occupationally or recreationally is of no moment. The risk of
       sustaining a weightlifting injury is not a “special risk.”
¶ 18        Byrnes v. Retirement Board of Policemen’s Annuity & Benefit Fund, 339 Ill. App. 55
       (1949), supports our interpretation of section 5-113. In Byrnes, an off-duty police officer and
       another individual were in a rowboat that overturned in Lake Michigan and began to drift away
       from the shore. As the officer’s companion clung to the overturned boat, the officer tried to
       swim to a breakwater for help. Before reaching the breakwater, the officer drowned. The
       Byrnes court concluded that the officer’s death was not the result of an act of duty. The act was
       not imposed on the officer by a statute, ordinance, or police department rule, nor did it involve
       a “special risk.” Id. at 60. According to the court, “it was simply an act which any ordinary man
       in an ordinary walk of life would have attempted to perform if he could swim.” Id. Thus, in
       Byrnes, the salient inquiry was not whether the risk was associated with civilian occupations
       (which do not ordinarily entail swimming from overturned rowboats) but whether it was
       associated with civilian life generally.
¶ 19        Alm also supports our analysis. In that case, this court held that an officer injured while
       assigned to bicycle patrol was entitled to a line-of-duty disability pension. Notably, the
       majority focused not merely on the fact that, in ordinary walks of life, riding a bicycle is a
       recreational activity. Rather, the majority noted how bicycle patrol duty differed from
       recreational cycling:
                “While on patrol, plaintiff faced risks not ordinarily encountered by civilians. He was
                required to ride his bicycle at night over varying terrain, looking after his own personal
                safety while also remaining vigilant in the performance of his patrol duties. Plaintiff
                was also carrying a significant amount of additional weight. Under these conditions,
                risks include falls and collisions as well as dangerous encounters with unsavory
                elements of society. This particular duty has no clear counterpart in civilian life.” Alm,
                352 Ill. App. 3d at 601.
       In our view, this approach is sound as a matter of policy. Whether a risk encountered in civilian
       life is occupational or nonoccupational has little bearing on whether it approximates the types
       of dangers for which an officer should receive an increased disability benefit.3 Thus, in prior

           3
             We recognize that the Johnson court expressly mentioned only occupational risks of civilian life
       when it held that an officer performing his duty to protect the public faces a “special risk.” Johnson, 114
       Ill. 2d at 522 (“There is no comparable civilian occupation to that of a traffic patrolman responding to
       the call of a citizen.”). However, the court was simply illustrating the distinction between the capacity

                                                       -6-
       cases where line-of-duty disability pensions have been awarded, the officers were injured
       while engaged in activities involving the protection of public safety. See Summers v.
       Retirement Board of the Policemen’s Annuity & Benefit Fund, 2013 IL App (1st) 121345, ¶ 44.
       Although the definition of “act of duty” is not strictly limited to activities involving the
       protection of public safety (id.), it is not so broad as to embrace physical-fitness activities in
       which individuals in ordinary walks of life participate.
¶ 20       For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 21       Affirmed.




       in which an officer is acting and the specific act causing injury. The court did not hold that ordinary
       nonoccupational risks that are commonly encountered in civilian life somehow become “special risks”
       when encountered by a police officer.

                                                      -7-
