SECOND DIVISION April 5, 2011
No. 1-09-3151
EARL L. FILSKOV, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) ) v. ) No. 09 CH 18764 ) ) THE BOARD OF TRUSTEES OF THE NORTHLAKE ) POLICE PENSION FUND, ) Honorable ) Peter Flynn, Defendant-Appellant. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Connors concurred in the judgment and opinion. Presiding Justice Cunningham dissented, with opinion.
OPINION
On October 5, 2007, plaintiff, police officer Earl Filskov’s assigned duty was to patrol the
streets looking for gang activity. After finishing preparing station reports he returned to his
police vehicle along with two other officers. While entering the rear seat he suffered an injury to
his foot. He applied to the Northlake Police Pension Fund (Pension Board) for a line-of-duty
disability pension benefit or, in the alternative, a not-on-duty disability pension benefit. The
Pension Board unanimously voted to deny Officer Filskov’s application for a line-of-duty
disability pension benefit, but granted his application for a not-on-duty disability pension benefit.
On administrative review, the circuit court reversed the Pension Board’s decision and entered
judgment in favor of Officer Filskov for an on-duty disability pension benefit. The Pension
Board appeals from the circuit court’s judgment. The facts of this case establish that Officer No.1-09-3151
Filskov did not suffer a line-of-duty disability. The Pension Board’s examination of the legal
effect of those facts and its decision that the injury did not result from the performance of an act
of duty were not clearly erroneous. Accordingly, we reverse the decision of the circuit court, as
Officer Filskov’s injury was not sustained while performing an act of duty as required under
section 3-114.1(a) of the Illinois Pension Code (Pension Code). 40 ILCS 5/3-114.1(a) (West
2008).
JURISDICTION
The circuit court reversed the Pension Board’s decision and entered judgment in favor of
Officer Filskov on October 28, 2009. On November 16, 2009, the Pension Board filed its notice
of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301
and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb.1,
1994); R. 303 (eff. May 30, 2008).
BACKGROUND
On October 5, 2007, Officer Filskov was on duty and in uniform as a member of the city
of Northlake police force. Officer Filskov was assigned to an unmarked police car along with
two other officers. He testified that all three officers were at the Northlake police station
finishing up either an arrest or a report. All three officers were assigned to the Neighborhood
Enforcement Team (NET), which is a gang suppression unit. Officer Filskov testified that NET
officers “are constantly on the street as much as possible looking for any active gang activity,
any narcotic related activity” in addition to “all the other normal work that a uniform patrol
officer would do.” At approximately 10:30 p.m., Officer Filskov and the other two officers left
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the police station and walked to the squad car in the police station’s parking lot to resume patrol.
They had yet to resume their patrol and were not acting in response to a call for service. As he
was standing outside the open door of the squad car, the officer driving the car inadvertently put
the car in drive and drove over Officer Filskov’s foot. He described the incident, testifying that
as he opened the backseat car door to get into the backseat, he noticed some items on the seat.
While standing on the parking lot pavement he bent over to move the items when the car
unexpectedly moved forward and a rear tire injured his foot.
Based on his injuries from the incident, Officer Filskov applied for disability benefits to
the Pension Board, claiming a line-of-duty disability pension benefit or, in the alternative, a not-
on- duty disability pension benefit. Following a hearing on February 20, 2009, the Pension
Board issued its written decision and order on May 20, 2009. The Pension Board found that
Officer Filskov “is physically disabled and that his disability renders necessary his suspension or
retirement from police service.” The Board found “the performance of an act of duty” did not
cause or contribute to Officer Filskov’s disability under the Pension Code. The Pension Board
explained its conclusion:
“The Pension Board has extensively reviewed the evidence
in the administrative record and the testimony from the hearing to
assess whether the Applicant was involved in an act of police duty
inherently involving special risk not ordinarily assumed by a
citizen in the ordinary walks of life. There is no evidence in the
record to suggest that the Applicant was involved in an ‘act of
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duty.’ Rather, the Applicant faced the same risk ordinarily
assumed by any citizen who chooses to become a passenger in a
vehicle.
Certainly the Pension Board is aware of the fact that
because such an injury could have befallen anybody who chooses
to become a passenger in a vehicle does not, in itself, foreclose a
line of duty disability pension. The key consideration is the
capacity in which the Applicant was acting. To this extent, the
Applicant testified that the Applicant and the other officers were
not responding to a call or in any way involved in an act of police
duty inherently involving a special risk. The Applicant was merely
standing next to the squad car when Officer Mango mistakenly
drove over his left foot.”
The Pension Board granted Officer’s Filskov’s alternative request that he be given a not-on-duty
disability pension. On administrative review, the circuit court reversed the Pension Board’s
decision and entered judgment in favor of Officer Filskov. The Pension Board appeals from the
circuit court’s judgment.
ANALYSIS
In cases involving administrative agency decisions, such as that of the Pension Board, we
review the decisions of the agency and not the conclusion of the circuit court. Wade v. City of
North Chicago Police Pension Board, 226 Ill. 2d 485, 504 (2007). The Pension Board’s decision
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is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq (West 2008)); 40 ILCS
5/3-148 (West 2008). The Administrative Review Law provides that the scope of our review:
“shall extend to all questions of law and fact presented by the
entire record before the court. No new or additional evidence in
support of or in opposition to any finding, order, determination or
decision of the administrative agency shall be heard by the court.
The findings and conclusions of the administrative agency on
questions of fact shall be held to be prima facie true and correct.”
735 ILCS 5/3-110 (West 2008).
The amount of deference we must give to the decision of the Pension Board “depends
upon whether the question presented is a question of fact, a question of law, or a mixed question
of law and fact.” Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532
(2006). When reviewing questions of fact, the reviewing court must determine whether the
decision of the agency is against the manifest weight of the evidence. Id. Questions of law,
however, are reviewed de novo. Id. When the question presented is a mixed question of law and
fact, as in this case, the clearly erroneous standard is applied. Id. See also Merlo v. Orland Hills
Police Pension Board, 383 Ill. App. 3d 97, 99-100 (2008) (applying clearly erroneous standard in
answering whether a police officer should receive line-of-duty pension benefit); Jones v. Board
of Trustees of the Police Pension Fund, 384 Ill. App. 3d 1064, 1068 (2008) (agreeing with Merlo
and applying a clearly erroneous standard to line of duty pension benefit issue). A mixed
question of law and fact “involves an examination of the legal effect of a given set of facts .” City
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of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Our supreme
court has described this standard as “between a manifest weight of the evidence standard and a de
novo standard so as to provide some deference to the [agency’s] decision.” Id. An agency’s
“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.’ ” AFM
Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001),
(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The plaintiff
bears the burden of proof in an administrative proceeding. Marconi 225 Ill. 2d at 532-33.
A line-of-duty pension benefit is provided for in section 3-114.1(a) of the Pension Code,
which states:
“ Disability Pension - - Line of duty
(a) 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 ***. (Emphasis added.) 40
ILCS 5/3-114.1(a) (West 2008).
Section 5-113 of the Code defines the term “act of duty” as “Any act of police duty inherently
involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed
6 No.1-09-3151
on policeman ***.” 40 ILCS 5/5-113 (West 2008).1
In Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 114 Ill. 2d
518 (1986), our supreme court addressed the issue of whether an injury to a police officer
occurred while performing an act of duty and, thus, triggered a line-of-duty disability pension. In
Johnson, a police officer was at his assigned post when a citizen from across an intersection
called to him asking for assistance in a traffic accident. Id. at 520. While crossing the
intersection, the police officer slipped and injured himself. Id. The supreme court held that the
police officer’s actions were an “act of duty” as defined in the Pension Code such that he was
entitled to line-of- duty pension benefits. Id. at 523. The supreme court reasoned:
“There can be little question, police officers assigned to
duties that involve protection of the public discharge their
responsibilities by performing acts which are similar to those
involved in many civilian occupations. The crux is the capacity in
which the police officer is acting.” (Emphasis added.) Id. at 522.
The supreme court explained that the police officer’s “act of duty was the act of responding to
the call of a citizen for assistance. In performing that act, he was injured.” Id.
Whether a police officer has suffered a line-of-duty injury is fact specific. In those cases
1 Article III of the Pension Code addresses police pension funds for cities that have a population under 500,000, such as the city of Northlake in this case. However, article III does not define the term “act of duty.” We acknowledge that the definition of “act of duty” found in section 5-113 is found in article V of the Pension Code, which pertains to cities with a population of over 500,000. However, our supreme sourt has stated that “[w]e may look to article V of the Pension Code for a definition of language used in article III of the Code.” Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533, 540 (1997).
7 No.1-09-3151
where a police officer is found to have suffered a line-of-duty injury the facts demonstrate that
the officer faced a special risk associated with serving as a police officer at the time the injury
occurred. In Wagner v. Board of Trustees of the Police Pension Fund, 208 Ill. App. 3d 25, 26-30
(1991), this court held that where a police officer serving notice fell through a faulty porch, the
act of walking across a porch was hardly unique to police officers, but serving notice to appear is
a special risk of an officer.
In Barber v. Board of Trustees of the Village of South Barrington Police Pension Fund,
256 Ill. App. 3d 814, 815-18 (1993), a line-of-duty injury was found where during the special
risk activity of a traffic stop, a police officer was injured by a vehicle hitting the open door of the
police officer’s squad car.
In Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595, 596-603 (2004), a
police officer riding a bicycle patrol unit noticed pain in his knee while on patrol. Although he
did not recall a specific accident, it was held, “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 weight.” Alm, 352 Ill. App. 3d at 601.
In Merlo, 383 Ill. App. 3d at 98-103, where an officer responded to a call and was injured
when he removed stacked parking blocks in a parking lot, the court held, “petitioner’s acts were
that of a police officer responding to a civilian call; trying to immediately eliminate a public
safety hazard.”
In Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 834-42 (2008) (quoting 40 ILCS
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5/5-113 (West 2002)), where an officer dispatched to a railroad crossing was injured while
attempting to lift a malfunctioning railroad gate it was held, “[the officer’s] act involv[ed] a risk
that is ‘not ordinarily assumed by a citizen in the ordinary walks of life.’ ”
In Jones, 384 Ill. App. 3d at 1065-74, where an officer investigating complaints of
speeding motorists was injured when another car struck his vehicle, this court found the officer
was “on patrol intending to investigate an area that had reports of speeders. Although [the
officer] was not responding to a call, he was conducting his patrol and an investigation, and he
did face special risks associated with being on patrol duty.”
In contrast, where a police officer did not face the sort of special risks associated with
serving as a police officer at the time an injury occurred, this court has found that the injury was
not suffered in the line of duty under the Pension Code. In Morgan v. Retirement Board of the
Policemen’s Annuity & Benefit Fund, 172 Ill. App. 3d 273, 274 (1988), this court found the
police officer was not injured while performing an act of duty. The police officer was filling out
paperwork at the police station when he went to sit down in a chair, but missed and injured his
head, neck, and back. Id. This court found that the police officer was not entitled to a line-of-
duty disability benefit because he did not sustain his injuries in the performance of an act of duty
under the Pension Code. Id. at 275. This court reasoned that “we cannot say that completing
police reports, albeit a function peculiar to police officers, inherently involves a special risk not
ordinarily assumed by a citizen in the ordinary walks of life.” Id. at 276.
In Fedorski v. Board of Trustees of the Aurora Police Pension Fund, 375 Ill. App. 3d
371, 372 (2007), this court found the police officer was not injured while performing an act of
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duty under the Pension Code because his injury occurred when no special risk related to his job
had been taken. The police officer, assigned to work as a evidence technician, drove in an
unmarked police car to photograph suspects at a jail. Before returning to the police station, the
officer drove to meet another officer to return a camera the officer had been using to photograph
the suspects. While the officer’s vehicle was stopped at a red light, it was struck from behind by
another motorist. Id. In finding the police officer was not injured when performing an act of
duty, the court reasoned that the officer “was not acting in a capacity that entailed any special risk
at that particular time.” Id. at 375. The risks faced by the officer were “essentially no different
from those faced by any other automobile passenger. Nothing related to his duties as an evidence
technician increased that risk.” Id. at 376. It was noted that “[h]ad [the officer] been acting in a
capacity involving a special risk when he was injured, he would have been entitled to line-of-
duty disability pension even though the immediate cause of the injury was an act- riding in an
automobile- involving only ordinary risk.” Id. at 375.
Here the Pension Board’s decision was not clearly erroneous because the incident in
question, entering a vehicle, did not involve a “special risk, not ordinarily assumed by a citizen in
the ordinary walks of life.” 40 ILCS 5/5-113 (West 2008). According to Filskov’s testimony, he
was not responding to a call. He had yet to resume patrol but, rather, was attempting to enter the
rear seat of a vehicle that was still in the police station’s parking lot. He was standing outside the
car and moving items off the seat when the incident occurred. This was not a “special risk”
arising from his being a police officer. He was engaging in an ordinary risk that all citizens
assume when they either enter a vehicle or move items off the seats of vehicles. The capacity in
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which he was acting was that of a passenger entering a motor vehicle, which is the same activity
all passenger civilians do everyday. See Johnson, 114 Ill. 2d at 522 (“[t]he crux is the capacity in
which the police officer is acting”). Because Filskov was acting in a capacity in which civilians
commonly act, and the activity did not involve a special risk, we find that the fact scenario in this
case more closely resembles this court’s decisions in Morgan and Fedorski than those decisions
that found that the police officer was performing an act of duty under the Pension Code when
injured. Filskov testified he was not responding to a specific call to duty like in Johnson
(crossing intersection in response to traffic accident), Merlo (removed hazardous parking blocks
in response to a call), Sarkis (lifting railroad crossing gate in response to a call), or Jones (in
route to investigate speeding motorists when struck by another motorist). He was not involved in
inherent “police activities” at the time of the incident like in Wagner (serving notice), Barber
(effectuating traffic stop), or Alm (officer on bicycle patrol through rough terrain, at night,
carrying significant amount of weight). After reviewing the record, we cannot say that we are “
‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger
Service, Inc., 198 Ill. 2d at 395 (quoting United States Gypsum Co., 333 U.S. at 395). Therefore,
the decision of the Pension Board must be upheld as it is not clearly erroneous.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.
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PRESIDING JUSTICE CUNNINGHAM, dissenting.
I respectfully dissent from the result reached by the majority. I would affirm the circuit
court’s reversal of the Board’s ruling and hold that the injured police officer is entitled to line of
duty disability benefits. The record is clear that the plaintiff, Officer Filskov (Filskov) was a
member of a special team of police officers who were assigned to specific activity. This team
was known as the Neighborhood Enforcement Team or NET. As an NET officer, Filskov and
his partners were required to drive to specific locations in the city of Northlake in accordance
with the gang suppression activities of NET. As Filskov was entering the vehicle in the course of
his assignment to drive to a location required of his NET team, the injury occurred. In my view,
that puts it squarely within the category of injuries for which line of duty disability benefits are
payable.
The Board rejected Filskov’s application for line of duty disability on the ground that he
was not engaged in “an act of duty” at the time of the injury. They go on to say that Filskov’s
injury occurred because he “cho[se] to become a passenger in a vehicle.” The Board
acknowledges that its analysis is incomplete in that the key consideration is the capacity in which
Filskov was acting at the time of the injury.
The Board’s comments about Filskov’s injury suggests that it viewed it in a manner as if
he sustained the injury while engaging in some casual activity unrelated to his work as a police
officer, and more specifically as a team member of NET. It cannot be rationally argued that
Filskov was getting into that particular police vehicle; in that particular location; at that particular
time; for personal reasons unrelated to his specific work as a team member of NET. On the
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contrary, his team had completed a report on a prior activity and were headed out to resume their
specialized work. Filskov was not taking a casual car ride with friends. He was engaged in
serious, specialized police work when he was injured.
The Board’s comparison of the manner in which Filskov’s injury was sustained, to that of
an “[ordinary] citizen who chooses to become a passenger in a vehicle,” begs the question of why
Filskov was entering that vehicle at that time. The answer is that he was performing an act of
police duty, attendant to his role as a team member of NET and the activity was peculiar to that
unit and his work. I believe section 3-114.1(a) of the Pension Code given its plain meaning
supports Filskov’s argument that he is entitled to line of duty disability benefits. The relevant
portion of the Code states:
“If a police officer as the result of *** injury incurred in or
resulting from the performance of an act of duty, is found to be
physically *** disabled ***, the police officer shall be entitled to a
disability *** pension ***.” 40 ILCS 5/3-114.1(a)(West 2008).
The majority notes that whether a police officer has suffered a line of duty injury is fact specific.
They then discuss the facts of several cases as support for their holding in this case. I disagree
that any of the cases cited by the majority in their analysis, supports the Board’s ruling and the
majority’s holding in this case. I believe the legislature intended that police officers injured
while clearly performing an act of police duty, are entitled to line of duty disability benefits. In
my view, the plaintiff met his burden of proving that his injury occurred within the narrow
parameters of performing an act of police duty.
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The Board and the majority seem to focus on the argument that the plaintiff was not
facing a specific danger, peculiar to NET officers at the precise moment of injury. Filskov,
relying on Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595 (2004), correctly
argues that it is the entirety of the circumstances leading to the injury which must be considered.
It is uncontroverted that Filskov “was in the middle of a specialized patrol” which required him
to go to a location by means of a police motor vehicle. Thus, it is inaccurate for the Board to
compare Filskov’s activity at the time of the injury to an ordinary “citizen who chooses to
become a passenger in a vehicle.” Using the Board’s logic, any police officer who suffers an
injury while on duty, performing a specific act of police work, would never qualify for line of
duty disability benefits if the injury is of a category that could conceivably be suffered by an
ordinary citizen. This reasoning makes little sense when viewed in light of the legislative intent,
which is to provide line of duty benefits to police officers who are injured while performing an
act of police duty. I do not believe and nothing in the record suggests that Filskov had a choice
regarding the mode of transportation which he and his team members were required to use as
they traveled to their NET assignment. In determining whether an officer is entitled to line of
duty disability benefits, “ ‘the crux of the question is the capacity in which the police officer is
acting’ ” at the time of the injury “rather than the precise mechanism of the injury.” Id. at 599,
quoting Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 114 Ill. 2d
518, 522 (1986). There can be no doubt that Filskov was acting in his capacity as a team
member of NET, engaged in the specific activities of that unit when he was injured.
While deference is due to the findings of the Board, we are not required to ignore the
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obvious and engage in convoluted reasoning to uphold the Board’s ruling. As our supreme court
has said, “we are not required to suspend common sense,” where, as here, the facts in evidence
clearly support Filskov’s claim that his injury occurred in the line of duty. People v. Jimerson,
166 Ill. 2d 211, 227 (1995). I believe that the plain meaning of the statute, legislative intent and
a solid base of case law provide the bases upon which to affirm the ruling of the circuit court of
Cook County, finding the plaintiff, Filskov, eligible for line of duty disability benefits. It is for
these reasons, that I respectfully dissent from the holding of the majority.