Demski v. Mundelein Police Pension Board

831 N.E.2d 704, 358 Ill. App. 3d 499, 294 Ill. Dec. 754
CourtAppellate Court of Illinois
DecidedJune 28, 2005
Docket2-04-0990
StatusPublished
Cited by13 cases

This text of 831 N.E.2d 704 (Demski v. Mundelein Police Pension Board) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demski v. Mundelein Police Pension Board, 831 N.E.2d 704, 358 Ill. App. 3d 499, 294 Ill. Dec. 754 (Ill. Ct. App. 2005).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

The Mundelein Police Pension Board (Board), the Village of Mundelein (Village), the Mundelein police department (department), Raymond J. Rose, chief of the Mundelein police department (Chief Rose), James A. Keeney, Wallace Frasier, and Nick Poulos appeal the trial court’s order reversing the Board’s denial of Officer Kerry Demski’s line-of-duty disability pension application. We reverse.

The following facts are taken from the record. On October 6, 1987, Demski became a member of the Mundelein police department. On October 27, 2002, Demski claimed she injured her back while performing sit-ups during a routine physical fitness agility examination. The following day Demski worked at a Red Ribbon event with two other officers. Two days later, Demski called in to the department, stating that she was unable to work due to the back pain. Demski has not returned to her duties since the alleged injury.

Demski applied for workers’ compensation benefits for her injury. On August 13, 2003, a hearing was conducted before the Illinois Industrial Commission (IIC) on Demski’s application for workers’ compensation benefits. After Demski and the Village presented evidence, the IIC arbitrator ruled that Demski was entitled to workers’ compensation benefits and found “a causal connection between the agility test of October 26, 2002, and [Demski’s] subsequent condition of ill-being.”

Demski also filed an application for a line-of-duty pension. Hearings on the application were held in December 2003 and January 2004. The Village’s petition for leave to intervene in the proceedings was granted. Demski filed a petition seeking to invoke the doctrine of collateral estoppel, contending that the IIC’s finding of causation was binding on the Board proceedings, but the Board denied Demski’s petition.

During the hearings, Demski testified that she injured her back in 1993 when she lifted a box of D.A.R.E. workbooks out of her car. She had surgery on her back in 1994 and returned to work full-time. She injured her back again in 1999 after she lifted D.A.R.E. workbooks, but she returned to work after six months. In February 2001, she received a general order from the chief of police regarding physical fitness testing. Demski believed that if she did not meet the standards set forth in the order, her job would be in jeopardy. Demski stated that she took the agility test on October 26, 2002. During the sit-up portion of the physical fitness agility test she injured her back. As she performed a sit-up, she felt a pull across her lower back. She did not say anything to the examiners because she did not want to “come across as a weak officer.” She continued that part of the exam with discomfort in her lower back. Demski knew that she could discontinue the test but chose to continue. Demski stated that she was unable to pass the run portion of the test.

Demski testified that in both February and October 2001 she was unable to successfully complete the agility testing but suffered no disciplinary consequences. Further, none of her superiors had ever spoken with her about the ramifications of failing the agility test. Demski knew of no one who had been dismissed for falling the agility test. However, she knew the union was discussing a proposal to sanction officers who failed to adequately perform the test.

Sergeant John Monahan testified that he administered and observed Demski’s agility test on the date in question and that she did not appear to have any problems with the test and did not complain of pain during the test.

Commander Michael Richards testified that the agility test was required of all officers. However, at the time of Demski’s alleged injury, no labor agreement was in effect that would have resulted in disciplinary action for failure to complete the test. In fact, several other officers had failed the test and had suffered no consequences. The general order in effect in 2001 required an officer to participate in the agility assessment unless the officer was not medically able to do so. In that case, the officer was required to try to complete the agility test again in six months, until the officer successfully completed the agility test. There were no disciplinary consequences for failure to complete the test. However, in 2003, after Demski’s alleged injury, a labor union contract was enacted, providing for consequences if an officer failed to adequately perform the agility test. The consequences included progressive disciplinary measures including the loss of income.

In support of her petition, Demski filed three certificates of disability. The first certificate, submitted by Jay Levin, M.D., after examining Demski, indicated that Demski was disabled and that her disability was caused by the performance of an act of duty. The second certificate, submitted by David L. Spencer, M.D., after examining Demski, indicated that Demski was disabled and that her disability was caused by the performance of an act of duty. The third certificate, submitted by Thomas F. Gleason, M.D., after examining Demski, indicated that Demski was disabled and that her disability possibly was caused by the performance of an act of duty.

The Board denied Demski’s line-of-duty pension application, finding that although she was disabled, her disability was not caused by the performance of an act of duty. The Board reasoned that the testimony did not support a finding that the injury occurred during the physical agility test and that, even if it had occurred at that time, the agility test is not an “act of duty” within the meaning of section 3 — 114.1 of the Pension Code (40 ILCS 5/3 — 114.1 (West 2002)), and as defined by section 5 — 113 of the Pension Code (40 ILCS 5/5 — 113 (West 2002)). The Board also found that the three certificates Demski filed in support of her petition were insufficient to establish a line-of-duty disability as required by section 5 — 115 of the Pension Code. 40 ILCS 5/5 — 115 (West 2002).

Demski sought review from the trial court. The trial court granted relief on two bases. First, the trial court determined that the Board was bound by the arbitrator’s finding that Demski’s injury was caused while performing an act of duty. Second, the trial court held that the Board’s finding was against the manifest weight of the evidence and that the physical agility test is an act of duty. Respondents filed this timely appeal.

On appeal, the Board argues that it was not bound by the IIC’s previous finding of causation. In contrast, Demski argues that the Board was collaterally estopped from making its own finding regarding the cause of Demski’s injury. We agree with the Board. The minimum requirements for the application of collateral estoppel are: (1) the issue decided in the prior adjudication is identical to the one presented in the suit in question; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. In re J’America B., 346 Ill. App. 3d 1034, 1042 (2004).

In this case, the first requirement has not been met.

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831 N.E.2d 704, 358 Ill. App. 3d 499, 294 Ill. Dec. 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demski-v-mundelein-police-pension-board-illappct-2005.