A. The Interpretation of Section 3-115 Of The Defendant Leads To Absurd Results.

The Defendant urges in its Brief that the statutory interpretation of the Illinois Pension Code was not the primary basis for its decision. Instead, the Defendant urges this Court to note that the primary basis of its opinion, as affirmed by the Circuit Court, was that the Defendant Pension Board found the opinion of Dr. James Milgram more persuasive than the other medical opinions advanced. (Df. Brf., p. 6-7). The Defendant also noted that the decision in part rested upon Mr. TURCOL’s alleged refusal of a second surgery and his uncertainty about returning to work at “light duty”. (Df. Brf., p. 7). On this latter point it is curious that at one point in its Brief the Defendant pointed to the Findings of the Pension Board in which the Board stated in Finding Number 13 as follows: Later this testimony was converted by the Defendant to Mr. TURCOL being doubtful that he would return to work in “police duty, even if he were able to do so.” (Df. Brf., p. 7). (Emphasis added). It is important for this Court to understand the clear the distinction between the ability to perform light duty work and the ability to perform all of the essential functions of “police duty”. These two (2) terms are not equivalent. The term “disability” found in 40 ILCS § 5/3-115 covers an entire spectrum of physical or mental impairments and is not amenable to one single definition.

None of those arguments are relevant if the interpretation of 40 ILCS § 5/3-115 propounded in Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, 338 Ill. App. 3d 490, 788 N.E.2d 1196 (1ST Dist. 2003); Daily v. Board of Trustees of the Police Pension Fund of Springfield, 251 Ill. App. 3d 119, 621 N.E.2d 986 (4TH Dist. 1993) and, Wade v. City of North Chicago Police Pension Board, _____ N.E.2d _____ , No. 2-04-0047 (2ND Dist. 2004) is adopted. According to the Defendant the Police Pension Board in this case had no discretion and its hands were completely tied once the “certificate of disability” of Dr. James Milgram was issued. Once Dr. Milgram found that the Plaintiff, in his opinion, could work and perform police duty, the case was over. There was no discretion to be exercised by the Police Pension Board and none of the nuances of the degree of disability or the results of future treatment could be addressed. The statute, 40 ILCS § 5/3-115 required the Pension Board to deny benefits.

This outcome is absurd, contrary to practice and in no fashion authorized by the plain language of the statute. It is absurd because it places in the hands of a single witness the determinative outcome in any case. Had Dr. Milgram been the first examining physician “selected by the Board”, there would have been no need to conduct the remaining examinations. The case would be over. Dr. Milgram’s opinion would rule the day regardless of any other evidence that 40 ILCS § 5/3-115 authorizes the Pension Board to admit. No matter how badly Dr. Milgram was impeached, if he continued to certify in writing that the Plaintiff was not disabled, according to the Defendant as a matter of law the Defendant Pension Board could not grant a line of duty disability benefit. No matter how much “other evidence” was presented to the Pension Board discrediting Dr. Milgram’s opinion, the Defendant contends that the “plain language” of Section 3-115 compelled the Pension Board to deny the claim.

In the present case the degree of disability was not merely a two (2) to one (1) vote. With the exception of Dr. Milgram, every single doctor who examined and/or treated the Plaintiff found that in his current condition he was physically unable to perform the duties of police officer. This included Dr. R. Samuel Mayer, Dr. James W. Ryan, Dr. Brian J. Cole and Dr. Davis. An issue developed whether a second surgery could improve the Plaintiff’s condition and, if successful, remove his physical impediment from performing police duties. However, at the time of the examinations, without the surgery, it was agreed he could not perform regular police work and regular police work was not being assigned to him.

Obviously, the fact that Dr. Cole wanted to perform a second surgery, the results of which were not guaranteed, is strong evidence that Dr. Cole himself did not feel that the Plaintiff could return to full police work in his current condition. Yet, the ability to return to “police duty” is the standard of disability in downstate police pension cases; in order to qualify for disability benefits the police officer need only show that he is physically unable to perform the duties assigned to him as a police officer. He does not carry the burden of showing that he is unable to perform “light duty” services within the Department. (Df. Brf., p. 11; 40 ILCS § 5/3-115; Knight v. Village of Bartlett, 338 Ill. App. 3d 892, 898-901, 788 N.E.2d 205 (1ST Dist. 2003). Thus, the Defendant’s subtle attempt noted earlier in this Brief to interchange the terms “light duty position” with “police duty” is misleading to this Court. It is precisely the ambiguity of the term “disability” that makes it obvious that the Defendant’s argument on the interpretation of Section 3-115 is fallacious.

Thus, according to the Defendant even if the opinion of Dr. Milgram is against the manifest weight of the evidence, it urges this Supreme Court to interpret Section 3-115 to mean that Dr. Milgram’s opinion controls the outcome. That is, the Defendant contends that the General Assembly intended to apply a “straight jacket” upon local pension boards significantly restricting their ability to consider and weigh evidence in a line of duty disability case. If any one examining physician certifies that there is no disability, the claim must be denied as a matter of law. According to the Defendant this outcome would be required no matter what the definition of “disability” is found to be operational by the particular examining physician.

The primary purpose of statutory interpretation is to “ascertain and give effect to the legislature’s intent.” People v. Olsson, 335 Ill. App. 3d 372, 374, 780 N.E.2d 816 (4TH Dist. 2002). In carrying out this responsibility, a Court is required to read the statute as a whole and to avoid a construction of the statute that would yield an absurd, unjust or unconstitutional result. People v. Olsson, 335 Ill. App. 3d 372, 374-375, 780 N.E.2d 816 (4TH Dist. 2002); People ex rel. Cason v. Ring, 41 Ill.2d 305, 309-310, 242 N.E.2d 267 (1968); People v. Hanna, 207 Ill. 2d 486, 798, 800 N.E.2d 1201 (2003). In particular, this Supreme Court stated the appropriate rule of statutory interpretation as follows: In the present case, the plain language of the Pension Code is by no means as crystal clear as advanced by the Defendant. It reads in relevant part as follows: The Appellate Court in Coyne v. Milan Police Pension Board, 347 Ill. App. 3d 713, 727-728, 807 N.E.2d 1276 (3RD Dist. 2004) properly construed the language quoted above. (See Plaintiff Petition for Leave to Appeal at pages 15-16).

The Coyne Court pointed out that the language in Section 3-115 required each physician to provide a certificate “of disability” but that language did not require that each certificate agree as to the extent of disability or even that the examinee was physically or mentally disabled. It is a requirement to obtain three (3) examinations and three (3) opinions on the issue of disability but not an absolute statutory requirement that each disability certificate agree as to the nature and extent of the disability.

As the Court in Coyne stated, there are twenty-one (21) nuances for the word “of” 347 Ill. App. 3d at 727-728; before this Supreme Court itself there are at least two (2) and arguably three (3) different interpretations of 3-115 in all of the cases cited by the Plaintiff, Defendant and Amicus Curiae Illinois Municipal League. The varying judicial interpretations of the statute in the case at bar themselves are evidence of the ambiguity of the language in 40 ILCS § 5/3-115. Krohe v. City of Bloomington, 204 Ill.2d 392, 789 N.E.2d 1211 (2003). It is not true that the language of Section 3-115 mandates that a single medical witness can remove all discretion from a local Pension Board and condemn a police officer to lose his disability benefits no matter what other evidence is offered in rebuttal. As indicated by the Plaintiff herein, such a rule places power in the hands of a majority of a local Pension Board to defeat an unpopular police officer’s disability claim by simply choosing a single physician who regularly finds examinees not to be disabled. (Pl. PLA, p. 16-18).

Further, the interpretation suggested by the Defendant flies in the face of long standing practice and the basic tenet of interpreting Pension Codes.

The Defendant’s interpretation ignores the fact that this Court has found that when reviewing the terms of the Pension Code, the Courts should liberally construe pension laws in favor of conferring benefits upon those to whom the statute is directed. Hahn v. Police Pension Fund, 138 Ill. App. 3d 206, 485 N.E.2d 871 (2ND Dist. 1985). While legislative intent should be sought primarily from the language used in the statute, the statute should be evaluated as a whole; each provision should be construed in connection with every other section, Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill.2d 533, 687 N.E.2d 39 (1997). It is absurd to interpret Section 3-115 in a manner that operates to place an insurmountable burden upon a claimant under circumstances where the selection of a single expert witness can utterly and completely defeat a claim. This is certainly not a liberal interpretation of the Pension Code aimed at conferring benefits on the anticipated beneficiaries.

In Krohe v. City of Bloomington, 204 Ill.2d 392, 789 N.E.2d 1211 (2003) this Court approved the Appellate Court’s determination that the Illinois General Assembly sought to fulfill an important state interest by enacting a statute to provide additional benefits for public safety officers who were disabled while in the line of duty while in response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act. This form of disability was defined by the legislature as a “catastrophic injury”. The construction of the Pension Code propounded by the Defendant is in direct conflict with the interpretation given a companion benefit provision by this Supreme Court in Krohe.

Further, 40 ILCS § 5/3-115 has been in its present form for decades. Numerous cases have been decided by the Appellate Courts of this State reviewing whether a particular selection of medical opinion was “clearly erroneous” in applying the term “disability” in a line of duty case. See for instance, Wilfert v. Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 263 Ill. App. 3d 539, 640 N.E.2d 1246 (1ST Dist. 1994); Wilfert v. Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago, 318 Ill. App. 3d 507, 742 N.E.2d 368 (1ST Dist. 2001) and, Peterson v. Board of Trustees of the Firemen’s Pension Fund of the City of Des Plaines, 54 Ill.2d 260, 296 N.E.2d 721 (1973). In these cases and in the case analyzed by the First District Appellate Court in the case at bar, Knight v. Village of Bartlett, 338 Ill. App. 3d 892, 788 N.E.2d 205 (1ST Dist. 2003), clearly demonstrate that Courts routinely scrutinize how Pension Boards choose among conflicting medical opinions with the medical facts and other evidence in the record to determine whether or not the decision of the Pension Board was “clearly erroneous”. Had 40 ILCS § 5/3-115 been interpreted in the manner advanced by the Defendant to this Court all of those opinions could have been shortened substantially. Since in cases like Knight one (1) of the physicians selected by the Board refused to issue a certificate of disability, the inquiry was ended and the claimant would lose. Obviously, no one has ever considered Section 3-115 in such a restrictive light before the Evergreen Park Pension Board in Rizzo. Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, 338 Ill. App. 3d 490, 788 N.E.2d 1196 (1ST Dist. 2003) is in direct conflict with the determination of Appellate Court case of Knight v. Village of Bartlett, 338 Ill. App. 3d 892, 788 N.E.2d 205 (1ST Dist. 2003). While they wish to dismiss the ruling of Knight as not a case which interpreted Section 3-115; the clear reading of that decision is that the interpretation of Section 3-115 as presented by the Defendant is wrong. Dr. Harris in the Knight case certified to the Board that Knight was not disabled. Adopting the interpretation of the Board, the Appellate Court in Knight would have been required to deny officer Knight a disability pension. The Court found that only three (3) of four (4) psychiatrists who examined Knight found him unfit for duty. The Court in Knight reviewed multiple sections of the Pension Code, 40 ILCS §§ 5/3-114.1, 3-114.2 and 3-115. The Court in Knight did not ignore the fact that Dr. Harris refused to certify him disabled under Section 3-115 but that Knight had a right to a hearing on the issue of his disability under either Section 3-114.1 or Section 3-114.2. The Board had certain obligations required by statute one of which was to review the testimony of Harris to determine whether Harris clearly understood the term disability as defined in the statute. The Court in Knight correctly pointed out that the police department and the police Chief did not believe that he could properly perform the duties of a Police Officer that if the Board truly believed the testimony of Harris the Board must support returning him for reinstatement. Review of testimony on the record in this case shows that the department had placed Officer TURCOL on temporary light duty assignments because of his injury, and the Board did not demand that the Police Department return Mr. TURCOL to active duty.

The Defendant’s interpretation of Section 3-115 creates a statutory “no-man’s land” in which a public safety officer can in fact be unable to perform the essential functions of his police job while at the same time being unable to obtain statutory disability benefits because a particular expert witness will not issue a certificate of disability. The Court in Knight understood that the record must be reviewed as a whole and when conflicting evidence is presented the Board must with procedural due process protected make its determination based on the facts of the case and the Pension Code considered in its entirety. This is in accord with the findings of the Seventh Circuit in Buttitta v. City of Chicago, 9 F.3d 1198 (1993). In that case, the Court held that due process required a hearing which need not be elaborate and can be satisfied by less than full evidentiary hearing but that State cannot take away the opportunity for a hearing to provide an opportunity for the individual to indicate a claim of entitlement to a property interest. The Court approved the manner in which Police Officers were determined to be fit for a return to duty but based their opinion on the fact that the Police Officer would not be deprived of his rights since the Court ordered the payment of a disability pension despite the fact that the Board had made a determination that he was no longer disabled until there was a reinstatement of the Officer to active duty.

The interpretation advanced by the Plaintiff and the Third District Appellate Court in Coyne eliminates this “no-man’s land”. If a police officer cannot perform his duties, has not been assigned police duties for over one (1) year and the bulk of medical evidence substantiates his case, then he will be removed from service and awarded a disability benefit. The scheme advanced by the Defendant makes it possible for a police officer to be fired for the physical inability to perform his job and simultaneously deny disability for lack of a third certificate of disability.