
No. 2--05--0301	

______________________________________________________________________________



IN THE



APPELLATE COURT OF ILLINOIS



SECOND DISTRICT

______________________________________________________________________________



RAYMOND JENSEN,	)	Appeal from the Circuit Court

)	of Kane County.

Plaintiff-Appellee,	)

)

v.	)	No. 04--MR--485

)

THE EAST DUNDEE FIRE PROTECTION	)

DISTRICT FIREFIGHTERS' PENSION	)

FUND BOARD OF TRUSTEES and THE	)

EAST DUNDEE FIRE PROTECTION	)

DISTRICT FIREFIGHTER'S PENSION	)

FUND,	)	Honorable

)	Michael J. Colwell,

Defendants-Appellants.
	)	Judge, Presiding.

______________________________________________________________________________



JUSTICE BYRNE delivered 
the
 opinion of 
the
 court:



This administrative review action was brought by 
plaintiff
, Raymond Jensen, from 
the
 denial of his application for a line-of-duty disability pension by 
defendant
s, the East Dundee Fire Protection District Firefighters' Pension Fund Board of Trustees and the East Dundee Fire Protection District Firefighter's Pension Fund (collectively the Board).  The trial court reversed 
the
 Board's findings as against 
the
 manifest weight of 
the
 evidence in light of 
Alm v. Lincolnshire Police Pension Board
, 352 
Ill. App. 3d
 595 (2004).  The Board contends on appeal that 
the
 trial court erred in reversing 
its decision. 
 We hold that, in determining whether 
plaintiff
 was entitled to a line-of-duty pension under section 4--110 of 
the
 Illinois Pension Code (Pension Code) (40 ILCS 5/4--110 (West 2004)), 
the
 Board 
applied 
the
 wrong standard in considering whether 
plaintiff
's injury was incurred in or resulted from 
the
 performance of an act of duty.  In considering whether 
plaintiff
's injuries were incurred in or resulted from acts of duty, both t
he Board and 
the
 trial court defined 
the
 term "act of duty" as it is applied to police officers under section 5--113 (40 ILCS 5/5--113 (West 2004)), which is not similar to 
the
 definition applied to firefighters under section 6--110 
(40 ILCS 5/6--110 (West 2004))
.  The Board and 
the
 trial court should have used section 6--110 
to define 
the
 term "act of duty." 
 Thus, 
the
 Board
 used 
the
 wrong standard in weighing 
the
 evidence.  Because 
the
 Board failed to apply 
the
 proper standard in weighing 
the
 evidence and never addressed 
the
 question of whether 
the
 activities in which 
plaintiff
 was injured constituted acts of duty, we believe that 
the 
proper course is to 
reverse 
the
 trial court and remand 
the
 cause with directions for a new hearing before 
the
 Board to determine 
whether 
plaintiff
 is entitled to a line-of-duty disability
 pension.

FACTS

The facts are undisputed.  Plaintiff became a full-time firefighter/paramedic with the East Dundee Fire Protection District on October 1, 1987, and remained employed full-time until July 2003, when he stopped working due to an
 injury to his left knee. 
 Plaintiff applied for a line-of-duty disability pension under section 4--110
, alleging that 
his disability 
resulted from acts of duty he performed as a firefighter.  

In November 1991, while stepping into an ambulance, 
plaintiff
 injured his left knee as he was
 attending to a medical
 emergency.  As a result of that injury, 
plaintiff
 was required to undergo surgery for torn cartilage in his left knee and was unable to return to work until March 1992.  On August 15, 1997, 
plaintiff
 again injured his left knee while crawling on 
the
 floor during a required fire department training drill.  He was treated with cortisone therapy and returned to work approximately six weeks later.  On May 20, 2002, 
as he was arriving at a fire call, plaintiff
 reinjured his left knee when he stepped out of 
the
 fire engine and missed 
a
 step
.  The treatment for 
the
 injury required a second  surgery on 
the
 knee, in September 2002.  Plaintiff was able to return to work in January 2003.  On July 23, 2003, 
plaintiff
 reinjured his left knee while on duty
 when he stepped out of an ambulance after performing required cleaning and maintenance on 
the
 ambulance.  As a result of that injury, 
plaintiff
 underwent treatment 
including a third surgery and physical therapy.  Plaintiff has not returned to work since July 2003.

Plaintiff applied 
for a line-of-duty disability pension 
because of his injury to his left knee
.  The Board ordered that he be examined by three physicians.  Each physician who examined 
plaintiff
 received from 
the
 president of 
the
 pension fund, Rainier Gallieano, a letter
 asking 
the
 physician for expertise and help in evaluating 
plaintiff
's knee injury.  T
he
 letter states that a firefighter is entitled to a line-of-duty disability pension under section 4--110 
if "a firefighter, as 
the
 result of sickness, accident or injury incurred in or resulting from 
the
 performance of an act of duty or from 
the
 cumulative effect of acts of duty, is found, pursuant to Section 4--112, 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 ***.  A firefighter shall be considered 'on duty' while on any assignment approved by 
the
 chief of 
the
 fire department, even though away from 
the
 municipality he or she serves as a firefighter, if 
the
 assignment is related to 
the
 fire protection service of 
the
 municipality."  
40 ILCS 5/4--110 (West 2004).  
Also enclosed was a copy of 
the
 firefighter/paramedic job description for the physician to review and a form containing 
the
 following two questions:

"1. Is 
the
 applicant disabled to a point that he is not able to perform his duties as a firefighter pursuant to 
the
 job description of 
the
 East Dundee Fire District?

2. Is it medically possible that 
the
 applicant's injury/illness is a result of or caused by his or her line of duty or service as a firefighter?"

Dr. John A. Elston examined p
laintiff and submitted a certificate indicating that 
plaintiff
 was disabled
 and that 
the
 disability was caused by 
his line-of-duty or service as a firefighter
.  Dr. Lawrence B. Metrick's certificate indicated that 
plaintiff
 was disabled and that 
the
 disability was caused by 
plaintiff
's line-of-duty or service as a firefighter
.
  Dr. Martin P. Lanoff examined 
plaintiff
 and certified that 
plaintiff
 was disabled.  However, 
next to 
the
 question whether 
plaintiff
's 
disability was 
the
 
result of or caused by his line-of-duty or service as a firefighter, Dr. Lanoff wrote, "possibly to a small extent."  
In his report, Dr. Lanoff indicated that 
plaintiff
's injury to his knee in 1991, requiring surgery, could have contributed to osteoarthritic changes, although it was much more likely that 
the
 degenerative changes were simply due to aging and genetics as well as obesity and not to any work-related injuries.

The Board determined that 
plaintiff
'
s injury did not arise from 
the
 performance of an "act of duty" as defined under section 4--110 of 
the
 Pension Code.  The Board believed that, for purposes of section 4--110, an "act of duty" must "entail a special risk not ordinarily assumed by a citizen in 
the
 ordinary walk of life."  The Board believed that 
the
 circumstances of plaintiff's injuries 
were 
similar to those 
in 
White v. City of Aurora
, 323 
Ill. App. 3d
 733 (2001), 
wherein we found that a police officer who slipped and was injured while exiting his squad car to place a parking citation on a car windshield 
was not performing an act of duty, because it did not involve 
a special risk not ordinarily assumed by a citizen.  The Board believed that, like 
the
 police officer in 
White
, 
plaintiff
's injuries were 
the
 result of stepping in and out of vehicles and crawling on 
the
 floor, and therefore, 
plaintiff
 was acting as an ordinary citizen in those situations.  Moreover, because of 
the
 "depth" of Dr. Lanoff's report, the Board believed that his finding of only a "small possibility" that 
plaintiff
's injuries were duty-related was 
the
 more credible finding.  
Accordingly, 
the
 Board denied 
plaintiff
 a line-of-duty disability pension and awarded 
plaintiff
 a not-in-the-line-of-duty disability pension pursuant to section 4--111 of 
the
 Pension Code (40 ILCS 5/4--111 (West 2002)).

Plaintiff sought review of 
the
 Board's decision in 
the
 trial court, arguing that 
the
 factual findings were contrary to 
the
 manifest weight of 
the
 evidence and that 
the
 decision was arbitrary and capricious and legally erroneous.  Plaintiff argued, 
inter
 
alia
, that 
the
 Board applied an incorrect meaning of 
the
 term "act of duty."  
Plaintiff also argued, alternatively, that 
his
 injuries were 
the
 result of 
the
 performance of acts involving special risks not ordinarily assumed by a citizen in 
the
 ordinary walk of life.  Plaintiff asserted that 
the
 Board incorrectly relied on 
White
, because
 this court's more
 recent case of 
Alm
, 352 
Ill. App. 3d
 at 602, had criticized and rejected 
White
 for misapprehending 
the
 supreme court's decision in 
Johnson v. Retirement Board of 
the
 Policemen's Annuity & Benefit Fund
, 114 
Ill. 2d
 518 (1986).  

Johnson
 expressly rejected 
the
 notion that 
the
 term "special risk" encompasses only inherently dangerous activities. 
 
Johnson
, 114 
Ill. 2d
 at 521.  We observed in 
Alm
 that 
Johnson
 teaches that, in determining whether an officer is entitled to line-of-duty benefits, " '[t]he crux is 
the
 capacity in which 
the
 officer is acting' rather than 
the
 precise mechanism of injury."  
Alm
, 352 
Ill. App. 3d
 at 599, quoting 
Johnson
, 114 
Ill. 2d
 at 522.  We concluded that 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.  
Alm
, 352 
Ill. App. 3d
 at 599.  
We distinguished 
White
 from 
Alm
, 
in which the injury was not the result of any specific, identifiable, physical trauma 
but may have developed over 
the
 course of time.  In 
Alm
, 
the
 
plaintiff
 established that he incurred a disabling injury in 
the
 course of pedaling his bicycle.  
The
 question was whether pedaling 
the
 bicycle was an act of duty.  Mindful of
 
Johnson
, we concluded that, because he was on patrol
, 
the
 
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.  The plaintiff also carried a significant amount of additional weight.  Under these conditions, 
the
 risks included falls and collisions as well as dangerous encounters with unsavory elements of society.  We held that this particular duty had no clear counterpart in civilian life and that therefore 
the
 bicycle patrol performed by 
the
 plaintiff
 involved special risks amounting to an act of duty such that he was entitled to line-of-duty benefits.  
Alm
, 352 
Ill. App. 3d
 at 601. 

After briefing and hearing argument, 
the
 trial court found that 
the
 decision of 
the
 Board was against 
the
 manifest weight of 
the
 evidence in light of 
Alm
.  Although 
the
 trial court never stated its reasons for relying on 
Alm
, the trial court 
apparently interpreted 
the
 term "act of duty" to encompass a firefighter's performance of duties involving special risks even if 
the
 immediate cause of an injury is an act involving only an ordinary risk. 
 Defendants timely appeal.

ANALYSIS

The Board contends that, although 
plaintiff
 was disabled, he had not been injured in 
the
 performance of an "act of duty" within 
the
 meaning of section 4--110 of 
the
 Pension Code and, therefore, he was not entitled to a line-of-duty disability pension.  In arriving at its decision, 
the
 Board interpreted 
the
 term "act of duty" to mean "an act inherently involving a special risk not ordinarily assumed by a citizen in 
the
 ordinary walk of life," and it applied that meaning to 
the
 facts of 
the
 case.  	On appeal, we review 
the
 decision of 
the
 administrative agency, not that of 
the
 trial court.  
Stec v. Board of Trustees of the Oak Park Police Pension Fund
, 355 
Ill. App. 3d
 974, 978-79 (2005).  The findings and conclusions of an administrative agency on questions of fact are deemed 
prima
 
facie
 true and correct and may be set aside only if they are against 
the
 manifest weight of 
the
 evidence.  735 ILCS 5/3--110 (West 2002); 
Daily v. Board of Trustees of the Police Pension Fund
, 251 
Ill. App. 3d
 119, 122 (1993).  
Our review of an administrative agency's determinations on questions of law is 
de
 
novo
.  
City of Belvidere v. Illinois State Labor Relations Board
, 
181 
Ill. 2d
 191, 205 (1998).  
Where 
the
 facts are undisputed, our review is generally 
de
 
novo
.  See 
Alm
, 352 
Ill. App. 3d
 at 598 (meaning of "act of duty" requires 
de
 
novo
 review).  
However, where, as here, 
the
 case involves an examination of the legal effect of a given set of facts, it involves a mixed question of fact and law.  Therefore, a "clearly erroneous" standard of review is appropriate to examine 
the
 Board's decision.  
City of Belvidere
, 181 
Ill. 2d
 at 205.  
"A decision will be deemed clearly erroneous only where the reviewing court, on the entire record, is ' "left with the definite and firm conviction that a mistake has been committed. [Citation.]" ' " 
Anderson v. Department of Professional Regulation
, 348 Ill. App. 3d 554, 560 (2004).

Section 4--110 of 
the
 Pension Code provides in relevant part:

"If a firefighter, 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, pursuant to Section 4--112, 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, 
the
 firefighter shall be entitled to a disability pension ***.  A firefighter shall be considered 'on duty' while on any assignment approved by 
the
 chief of 
the
 fire department, even though away from 
the
 municipality he or she serves as a firefighter, if 
the
 assignment is related to 
the
 fire protection service of 
the
 municipality."  40 ILCS 5/4--110 (West 2004).

Plaintiff contends that 
the
 Board improperly applied 
the
 definition of "act of duty" found under section 5--113 of 
the
 Pension Code, a section that is applicable to police officers, not firefighters.  Plaintiff further asserts that, had 
the
 Board applied 
the
 proper definition of "act of duty" pursuant to section 4--110, 
a section applicable to firefighters, the
 Board would have granted 
plaintiff
's application for a line-of-duty disability pension.  

We agree with 
plaintiff
 that 
the
 Board improperly applied 
the
 wrong definition of 
the
 term "act of duty."  "Act of duty" is defined for police officers as "[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in 
the
 ordinary walks of life, imposed on a policeman by 
the
 statutes of this State or by 
the
 ordinances or police regulations of 
the
 city in which this Article is in effect or by a special assignment."  40 ILCS 5/5--113 (West 2004).  
The Pension Code language relating to police officers under section 5--113 
is different from 
the
 language defining 
the
 term "act of duty" 
as it relates to 
firefighters
 under section 6--110 of 
the
 Pension Code (40 ILCS 5/6--110 (West 2004)).  Section 6--110 of 
the
 Pension Code 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 duty, having for its direct purpose 
the
 saving of 
the
 life or property of another person."  40 ILCS 5/6--110 (West 2004). 
 

In interpreting a statute, 
the
 court must ascertain 
the
 legislature's intent, the best evidence of which is 
the
 plain and ordinary meaning of 
the
 language used in 
the
 statute.  
Land v. Board of Education of the City of Chicago
, 202 
Ill. 2d
 414, 421 (2002). 
 Where 
the
 statutory language is clear, 
the
 court will give that language effect without resort to other aids of construction.  
Martino v. Police Pension Board
, 331 
Ill. App. 3d
 975, 980 (2002).  
It is clear that 
section 6--110 applies because it defines acts of duty and it relates to firefighters.  See 
Virden v. Board of Trustees of the Firefighters Pension Fund
, 304 
Ill. App. 3d
 330, 335 (1999) (applying section 6--110 and not section 5--113 in concluding that 
firefighter's application for a line-of-duty disability pension should have been granted). 
	We note that section 6--101
 provides that each city of more than 500,000 inhabitants be allowed to create a firefighters' annuity and benefit fund.  40 ILCS 5/6--101 (West 2004).  Section 4--101 grants a similar fund 
for cities, like East Dundee, of inhabitants under 500,000.  40 ILCS 5/4--101 (West 2004).  
Contrary to 
the
 parties' contentions, merely because 
the
 term "act of duty" is found in Article 6 of 
the
 Pension Code does not mean that it is applicable only 
to statutes in Article 6.  The terms defined in 
the
 Pension Code 
have 
the
 meaning ascribed to them 
and there is nothing in 
section 6--110 or  
any other statute under Article 6 that prohibits 
a court from ascribing 
the
 definition in section 6--110 to section 4--110
.  
Moreover, courts presume that statutes that relate to one subject are intended by 
the
 legislature to be consistent and harmonious with each other.  
Collins v. Board of Trustees of the Fireman's Annuity & Benefit Fund
, 155 
Ill. 2d
 103, 111-12 (1993).  The same words used in different sections of a statute should be given a consistent meaning unless legislative intent to 
the
 contrary is clearly evident.  
Clardy v. Rapistan Division of Lear Siegler, Inc.
, 254 
Ill. App. 3d
 1066, 1070 (1993).
  Accordingly, we find that 
the
 Board, as well as 
the
 trial court, improperly applied 
the
 wrong definition of "act of duty" from section 5--113 of 
the
 Pension Code to 
the
 facts of 
the
 case, because plaintiff is a firefighter and not a police officer, and, therefore
, 
the
 Board applied 
the
 wrong standard in weighing 
the
 evidence
.  See 
Virden
, 304 
Ill. App. 3d
 at 335.  

Because 
the
 Board applied 
the
 wrong definition of 
the
 term "act of duty,"
 any case law analyzing questions of specific "acts of duty" as they apply to police line-of-duty disability pensions are not relevant.  Thus, 
the
 Board's reliance on 
White
, 
as well as the
 trial court's reliance on 
Alm
,
 was misplaced inasmuch as 
both
 resolutions concerned 
the
 Pension Code's definition of "act of duty" applicable to police officers and not 
the standard applicable to firefighters.  

Before both the 
Board and 
the
 trial court, 
the
 parties focused on whether 
plaintiff
's injuries  were incurred in or resulted from "acts of duty," and the Board and 
the
 trial court relied on 
the
 incorrect standard in weighing 
the
 evidence
.  While 
plaintiff
 points out that 
the
 Board had before it 
the
 
East Dundee Fire Protection District's policy and procedures regarding 
the
 nature of his 
work
 when it considered whether 
the
 injuries he suffered were incurred in or resulted from 
"acts of duty," 
the
 Board 
never 
reviewed 
this 
evidence based on the proper standard.  Furthermore, 
the
 Board never determined whether 
the
 activities in which 
plaintiff
 was injured constituted acts of duty for purposes of section 4--110
.  We review 
an
 administrative agency's decision under 
the
 "clearly erroneous" standard.  
Anderson
, 348 
Ill. App. 3d
 at 560.  Consequently, before we review its decision, we believe that 
the
 
Board should consider 
whether 
plaintiff
's injury was incurred in or resulted from 
the
 performance of "acts of duty" 
within 
the proper meaning of section 4--110.  This is particularly appropriate
 because the Board 
never 
addressed 
the
 issue of whether 
the
 activities in which 
plaintiff
 was injured constituted acts of duty as defined by section 6--110 of 
the
 Pension Code
. 
 See, 
e.g.
, 
O'Callaghan v. Retirement Board of Firemen's Annuity & Benefit Fund
, 302 
Ill. App. 3d
 579 (1998) (reviewing 
board's determination that firefighter candidate drills constituted acts of duty as defined by section 6--110).  

The Board 
argues that 
its 
decision to deny 
the
 line-of-duty disability pension should be upheld in any event because 
the
 Board chose to place greater credibility on Dr. Lanoff's report concerning 
the
 causation of 
plaintiff
's injuries.
  Dr. Lanoff agreed with 
the
 other physicians that 
plaintiff
 was disabled.  However, he agreed with 
the
 other physicians as to 
the
 cause of 
the
 disability, but only to a "small extent." 
 
We observe that s
ection 4--112 of 
the
 Pension Code (40 ILCS 5/4--112 (West 2004)) 
requires that a disability pension shall not be paid until disability has been established by 
the
 board by examinations of 
the
 firefighter by three physicians selected by 
the
 board and such other evidence as 
the
 board deems necessary.  Similar to 
the
 certificate provision of section 3--115 (40 ILCS 5/3--115 (West 2002)), which we reviewed in 
Wade v City of North Chicago Police Pension Board
, 
359 
Ill. App. 3d
 224, 231-37 (2005), section 4--112 says nothing about 
the
 degree or cause of 
the
 applicant's incapacity
.  While 
the
 Board can find Dr. Lanoff's opinion to be more credible, we believe that, because all three 
physicians determined that 
plaintiff 
has a disability preventing him from performing any assigned duties, it is
 for the Board to determine whether the 
disability was caused by a covered act
, based on all of 
the
 evidence presented at 
the
 hearing.  See 
Wade
, 359 
Ill. App. 3d
 at 238.  
The Board cannot make that determination until it holds a new hearing based on 
the
 appropriate standard.

Accordingly, for 
the
 preceding reasons,
 we reverse 
the
 judgment of 
the
 trial court and remand 
the
 cause to 
the
 Board for a new hearing as to whether 
plaintiff
 is entitled to a line-of-duty disability pension pursuant to section 4--110.

Reversed and remanded with directions.

BOWMAN and GROMETER, JJ., concur.

