2024 IL App (1st) 231993
FIFTH DIVISION November 8, 2024
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
No. 1-23-1993
TAMICA N. RAINEY, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 22 CH 11069 THE RETIREMENT BOARD OF THE POLICEMEN’S ) ANNUITY AND BENEFIT FUND OF THE CITY OF ) Honorable CHICAGO, ) Joel Chupack, ) Judge Presiding. Defendant-Appellant. )
PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Oden Johnson and Mitchell concurred in the judgment and opinion.
OPINION
¶1 In 2017, plaintiff Tamica Rainey was awarded duty disability benefits under section 5-154
of the Illinois Pension Code (Code) (40 ILCS 5/5-154 (West 2016)). Defendant, the Retirement
Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (Board), set Officer
Rainey’s disability status for hearing in 2022, and ultimately terminated her duty disability benefits
based on its finding that she was “no longer disabled as a result of her duty-related injuries.”
¶2 Officer Rainey filed a complaint for administrative review, and the circuit court reversed
the Board’s decision. The circuit court held that the Board’s determination that Officer Rainey was
no longer disabled, where the Board was aware that the Chicago Police Department (CPD) would No. 1-23-1993
not reinstate her for medical reasons, was against the manifest weight of the evidence. The circuit
court relied on Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund of
Chicago, 234 Ill. 2d 446, 470 (2009), where our supreme court recognized that an officer was
disabled if she “had a physical condition which made her incapable of performing any assigned
duty and *** no position within her limitations was offered to her.” The circuit court reversed the
Board’s decision outright and awarded Officer Rainey a duty disability benefit pension, retroactive
to the date the Board had discontinued it. The circuit court also awarded Officer Rainey attorney
fees and costs under section 5-228(b) of the Code (40 ILCS 5/5-228(b) (West 2022)).
¶3 The Board has appealed, arguing that its decision should be affirmed because it was not
against the manifest weight of the evidence and it was error to award Officer Rainey attorney fees
and costs. For the following reasons, we reverse the Board’s decision denying Officer Rainey
continuing duty disability benefits and affirm the circuit court’s award of attorney fees and costs.
We remand for a calculation of the additional fees and costs owed to Officer Rainey based on this
appeal.
¶4 I. BACKGROUND
¶5 A. Officer Rainey’s Initial Award of Duty Disability Benefits
¶6 Officer Rainey was appointed as an officer with the CPD on April 26, 2004. In 2016, she
applied for duty disability pension benefits, based on injuries she received in two work-related
motor vehicle accidents. According to an “Injury on Duty Report” dated February 9, 2013, she
“was a passenger in a Police vehicle that rolled over several times after a tire blow-out on the
Eisenhower expressway.” In her affidavit in support of her duty disability benefits application,
Officer Rainey stated that, as a result of that accident, she had a “concussion, bilateral detached
retinas, and injuries to [her] right shoulder with two (2) dislocated ligaments, right hip, neck, lower
2 No. 1-23-1993
back, right knee, and right ankle.” According to an “Injury on Duty Report” dated March 13, 2015,
Officer Rainey “sustained injuries to her torso (acute back contusion) as a result of a motor vehicle
crash.” Officer Rainey explained in her affidavit that she was “responding to a job assigned” to
her in an unmarked police vehicle when she “was in a traffic crash with another vehicle” that
caused injuries to her “neck, lower back, left shoulder, left knee, right hand, and right foot.”
¶7 In June 2017, as required by statute (see 40 ILCS 5/5-154 (West 2016)), Dr. Rajeev Khanna
conducted an independent medical examination (IME) and completed a 20-page report, diagnosing
Officer Rainey with “[n]eck pain-probable cervical disc syndrome,” lumbago, a right-hand sprain,
“[r]ight shoulder pain-possible impingement syndrome versus labrum tear,” a right medial
meniscus tear, and “[r]ight foot pain – possible Morton’s Neuroma.” Dr. Khanna said that Officer
Rainey was “unable to return to limited duty or full duty at [that] time as she would have difficulty
driving and/or safely carrying and handling a department approved firearm” or “effectuating an
arrest of an arrestee who [was] an active resistor.” He concluded that her “disabling injury [wa]s
causally related to” the two motor vehicle accidents and that her “most significant discomfort” was
“her neck and right shoulder.” Dr. Khanna opined that Officer Rainey had “failed conservative
treatment” and that “[i]f the treating spine surgeons and orthopedic surgeons believe[d] a cervical
fusion and right shoulder arthroscopy would benefit [Officer] Rainey, she should pursue surgical
intervention.”
¶8 The Board held a hearing on Officer Rainey’s application for benefits on January 26, 2017,
and she was awarded a duty disability benefit of 75% of her salary. The benefits continued until
June 30, 2022, when the Board discontinued them, effective July 1, 2022.
¶9 B. The Board’s Termination of Officer Rainey’s Duty Disability Benefit
¶ 10 After she was awarded her benefit, Officer Rainey saw Dr. Peter Orris annually. According
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to the Board’s findings of fact, before April 2021, Dr. Orris had “consistently found [her] disabled
from performing full and unrestricted police duties due to her cervical pathology.” In his April 9,
2021, report, Dr. Orris said that Officer Rainey “continue[d] to complain of upper extremity pain,
neck pain, right shoulder pain,” and that her medical records from that year had “evidence of
multiple chronic problems with her progressing cervical spine pathology (contributed to by the
IOD [(injury on duty)]) superimposed on a Chiari I malformation (Cerebellum extending from
Skull to neck which is congenital) being the primary Disabling physical factor.” Dr. Orris noted
that “[i]n addition she ha[d] been diagnosed with [post-traumatic stress disorder (PTSD)] and [wa]s
being treated.” Dr. Orris concluded:
“Of. Rainey remains disabled as she is unable to safely carry handle and use her
weapon due to her cervical pathology. Though the specifics of her continued disablement
and cause are not entirely clear, I would ask that I see her in early 2022 with her
rehabilitation records and return to her neurosurgeon. At that point I would evaluate
whether an IME would be helpful in sorting out this complex situation.”
¶ 11 The Board then directed Officer Rainey to see Dr. M. Bryan Neal for an IME, with a focus
on her cervical spine and right shoulder. Dr. Neal completed a 25-page IME report. He examined
Officer Rainey and also reviewed and summarized Officer Rainey’s medical records from
February 2013 through April 2021. He considered her medical history, her current symptoms, and
the results of tests that measured range of motion, strength, palpation, and reflexes. Dr. Neal also
obtained digital radiographs of Officer Rainey’s cervical spine and right shoulder.
¶ 12 Dr. Neal diagnosed Officer Rainey with “[m]edically unexplainable subjective” pain in
both her neck and right shoulder “with suspected symptom magnification, amplification and/or
fabrication, and suspected lack of full cooperative” effort with the exam. He concluded that she
4 No. 1-23-1993
“d[id] not have any clinically significant organic cervical spine or right shoulder conditions, and
that neither [her] cervical spine nor right shoulder [wa]s a current disabling condition.” He also
found that her “right shoulder condition and her neck condition” were “not causally related to the
March 13, 2015 work incident.” (Emphasis in original.)
¶ 13 Dr. Neal also said that it was his “professional opinion that there [were] underlying
psychosocial undercurrents which confound[ed] this clinical situation.” He concluded that Officer
Rainey could “safely carry, handle, and use a firearm,” “maintain an independent and stable gait,”
“safely drive and operate a motor vehicle,” and “arrest an arrestee who might be an active resister.”
Dr. Neal said that because he found she did not have either a “clinically significant” condition of
her cervical spine or right shoulder, Officer Rainey “[wa]s able to perform full-duty police officer
work without restrictions.” (Emphasis in original.) At the conclusion of his report, Dr. Neal stated
his opinions were within “a reasonable degree of medical and surgical certainty.”
¶ 14 On March 11, 2022, the Board sent notice to Officer Rainey that it would hold a hearing
on March 24, 2022, via video-conference, to determine whether her duty disability benefits should
be continued, modified, or discontinued. Officer Rainey was advised to “present to the Board for
its consideration all proofs which [she] deem[ed] necessary to establish entitlement to the benefits
sought or a continuation of any benefit previously awarded.” She was also provided with a website
where she could access the Board’s rules of procedure and advised that she could be represented
by an attorney.
¶ 15 At the March 24 hearing, Officer Rainey, appearing without counsel, requested a 60-day
continuance so she could “fulfill upcoming medical appointments [for] her disability,” obtain the
medical documents she had already requested from her doctors, and possibly obtain counsel. The
Board granted her a continuance to June 30, 2022.
5 No. 1-23-1993
¶ 16 At the June 30, 2022, hearing, the Board’s attorney, Mr. Reimer, told Officer Rainey that
the Board had only just received her document submission and that both the Board and the Board’s
doctor needed an opportunity to review it. The Board voted to suspend Officer Rainey’s benefits,
effective the next day, because she had failed to timely provide her medical records 14 days prior
to the June 30, 2022, hearing date. The Board set a date for an additional hearing to give it a chance
to review her submission. The Board continued the hearing to its next meeting in August 2022.
¶ 17 Officer Rainey’s submission to the Board included her 2016 duty disability benefits
application and almost 100 pages of medical records from 2016 through 2022 regarding her
cervical and lumbar spine, right shoulder, knees, right hand, eyes, and “[n]euro/psychiatry.” These
medical records were presented without testimony. While they are somewhat difficult to
understand without such testimony, they do include the following notations. With respect to her
cervical spine, the notations refer to a “[d]egenerative change” in 2016, magnetic resonance
imaging (MRI) findings “of chronic duration” in 2018, and a decrease in her range of motion for
“cervical flexion, extension and axial rotation” in 2022. As to her shoulder, in 2022, she was found
to have “[i]mpingement [s]yndrome” and a rotator cuff tear, and one doctor noted “[d]egenerative
changes” in part of her shoulder and said the “comparison [wa]s consistent with a relatively
progressive course.”
¶ 18 On July 26, 2022, Dr. Neal completed an addendum to his own report after reviewing
Officer Rainey’s documents. Dr. Neal again opined that “no current diagnosis with respect to the
cervical spine or right shoulder [was] related, caused, or resulting from the March 13, 2015 motor
vehicle accident.” (Emphasis in original.) Although Dr. Neal again found that Officer Rainey could
carry a firearm, maintain her gait, and safely drive a motor vehicle, he concluded that she could
“not *** safely effectuate an arrest of an arrestee who [was] defined as an active resistor.”
6 No. 1-23-1993
(Emphasis in original.) Although he made clear that he “did not find [Officer Rainey] was disabled
and unable to return to work in any assigned position,” he also said:
“Regarding the ‘prognosis’ for the ability to return to police service, I do believe
[Officer Rainey] is able to return to limited duty as documented above. It is my professional
opinion there are significant underlying biopsychosocial undercurrents which create an
extremely strong headwind against her to return to a full-duty police officer without any
restrictions and who will be willing to arrest an arrestee who is an active resistor. This
simply is not going to be the case in this individual at this time; although, the reason this
is the case is not related to any March 13, 2015 work incident.” (Emphasis in original.)
¶ 19 On August 3, 2022, the Board sent a notice to Officer Rainey for an August 25, 2022,
hearing. At that hearing, Officer Rainey said she was not ready to proceed, explaining, “I have
conferred with counsel and I would like to request a continuance in order to proceed with
representation.” The Board went into an executive session. Upon returning to open session, Officer
Rainey was informed that the Board was not inclined to grant her request, and the following
exchange occurred:
“MR. REIMER: Well, your benefits have been suspended, so you have nothing as
far as an income source from—at least from the Board, you have no revenue stream and
that’s—the Board understands that, so here’s a suggestion.
We could actually go ahead today kind of on an expedited basis, and what I would
propose to you is we would admit all of the records, including the Board’s exhibit and your
exhibits and then if you wanted to say something, what the Board could do if you agree to
it is you could ask the Board to award you an ordinary disability benefit.
It would—the Board could act on that today.
7 No. 1-23-1993
Is that something you would want to consider?
OFFICER RAINEY: Is that, as you guys say, without prejudice so that potentially
in the future, you know, at a future hearing date, you guys would reconsider or reinstate
the duty disability?
MR. REIMER: I would think that would be with prejudice, but I’m not the one that
votes.
***
PRESIDENT STISCAK: And it will be with prejudice, meaning the duty disability
is off the table, assuming the vote goes—whichever way it goes.
MR. REIMER: And here’s what that means ***
The Board does not want to grant you a continuance, right?
They believe you’ve had enough, and, you know, the case law is pretty clear. I don’t
believe the circumstances that you’re presenting are going to justify it.
So you can take the risk of having the Board go ahead today denying your disability
benefits, your line-of-duty disability benefits or duty disability benefits, and that would
mean there will be a decision and order where you’re going to have to get an attorney to
go through the administrative review process.
That’s an option. That’s a risk you take. That’s your call. That’s not my call.
Nobody on the Board is telling you what to do.
But what they’re trying to do is offer you a compromise, and the compromise if you
want to take it—you don’t have to—would be the Board would admit everything today and
if you give specific authorization to the Board, the Board would award you an ordinary
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disability.”
¶ 20 Officer Rainey was given an opportunity to make a phone call, and the Board passed the
case. When the case was recalled, Officer Rainey said, “I would like to continue to a future date
without the benefit—to a date after the procedure that I have scheduled in October, preferably
November or January.” The Board denied Officer Rainey’s request for a continuance, and the case
proceeded to the hearing.
¶ 21 At that hearing, Mr. Reimer began by reviewing the procedures, including that Officer
Rainey “ha[d] the burden of proving her entitlement to the continuation of her disability benefits.”
The Board’s exhibits—including Dr. Neal’s IME report and the addendum—and Officer Rainey’s
submission to the Board were put into evidence.
¶ 22 Officer Rainey then presented her opening statement. She talked about the first accident on
February 9, 2013, how she “did everything possible short of having surgery to get back to work,”
and how, after a year, she returned to full duty. The second accident then “exacerbat[ed] [her] neck
and [her] lower back” and injured her left shoulder, left knee, right hand, and right foot.
¶ 23 Officer Rainey pointed out that Dr. Orris said she remained disabled, described issues with
her right shoulder, and noted evidence of multiple chronic problems with her progressing cervical
spine, in addition to her PTSD. At the conclusion of her opening statement, Officer Rainey said
she was “available or willing to answer any questions.”
¶ 24 The Board had no questions for her. When asked if there was any other evidence that she
wanted the Board to consider, Officer Rainey said she wanted the Board to consider “that this
process, not just this process, the hearings, but this entire disability process” was “devastating and
detrimental to [her] life.” She also said, “I think that I’ve provided multiple doctors’ notes,” and
“I can’t even go back to work because the police department won’t even consider taking me back
9 No. 1-23-1993
to work until I’m cleared from my doctors that they’ve sent me to, so I can’t even go back to seek
my job unless I’m cleared.” She said again, “I can’t go back to work—if you guys deny me today,
I can’t go back to work tomorrow because I am not cleared.” Officer Rainey said the “whole
process [wa]s out of [her] control” and asked the Board “to consider all the information in front of
[it].” When Mr. Reimer asked if that was all she wanted the Board to consider, she said, “Yes, sir.”
¶ 25 Without going into an executive or closed session first, the Board moved to discontinue
Officer Rainey’s duty disability benefits, and that motion unanimously passed.
¶ 26 In a letter dated August 29, 2022, the acting executive director of the Policemen’s Annuity
and Benefit Fund of Chicago (Fund) informed the CPD human resources department that the Board
had found Officer Rainey’s “current medical condition is such that he/she c[ould] be returned to
service with the” CPD and that she should “seek a return to CPD service.”
¶ 27 On September 27, 2022, Sergeant Philonies McCray, the sergeant/commanding officer of
the CPD medical services section, wrote to the director of the CPD human resources division,
stating that Officer Rainey submitted to a physical examination on September 12, 2022, and that
the evaluation disclosed she was “NOT MEDICALLY QUALIFIED to return to duty.”
¶ 28 On October 17, 2022, Officer Rainey, through her attorney, filed a motion to reconsider
the Board’s decision to terminate her disability benefits. In that motion, Officer Rainey asked the
Board to reconsider its oral ruling, as she had not been cleared by the CPD to return to work.
Officer Rainey attached to her motion documentation showing that the CPD had not offered her a
position, with or without restrictions.
¶ 29 On October 27, 2022, the Board issued its written decision and order. The Board concluded
that Officer Rainey was “no longer disabled as a result of her duty-related injuries,” and therefore
its termination of her duty disability benefits effective July 1, 2022, was proper. The Board found
10 No. 1-23-1993
that “the objective medical evidence in the record establishe[d] [Officer Rainey] ha[d] recovered
from her duty-related injuries for which she was awarded duty disability benefits, and [wa]s no
longer disabled from police service.” The Board noted that “Dr. Neal specifically attributed
[Officer Rainey]’s inability [to return to full, unrestricted police duties] to significant underlying
biopsychosocial undercurrents and ‘not related to any March 13, 2015 work incident.’ ” According
to the Board, the record contained “no objective medical evidence” to show Officer Rainey was
disabled due to her duty-related injuries, but rather that her disability was the result of “unrelated
psychiatric/psychological conditions.”
¶ 30 C. Circuit Court Proceedings
¶ 31 Officer Rainey filed her complaint in the circuit court on November 14, 2022, for both a
writ of mandamus and for administrative review. On June 23, 2023, the circuit court reversed the
Board’s decision. Relying on our supreme court’s decision in Kouzoukas, 234 Ill. 2d 446, the
circuit court found:
“Despite determining that [Officer] Rainey is able to return to work, CPD will not
reinstate [Officer] Rainey to any position with or without restriction. *** The Board,
however, discontinued her disability pension. This places [Officer] Rainey in a ‘Catch-22’
situation, same as the courts found in Kouzoukas, unable to work because the CPD will not
assign her a position in the police service, but unable to obtain disability benefits.
Kouzoukas requires the Board to reinstate disability benefits at 75% to [Officer] Rainey.”
¶ 32 The circuit court also found that because Officer Rainey was the prevailing party, she was
entitled to attorney fees and costs. On September 29, 2023, the circuit court denied the Board’s
motion for reconsideration. On March 15, 2024, the circuit court granted Officer Rainey’s petition
for attorney fees and costs, entering judgment in her favor and against the Board in the amount of
11 No. 1-23-1993
$33,981.94.
¶ 33 This appeal followed.
¶ 34 II. JURISDICTION
¶ 35 The circuit court denied the Board’s motion for reconsideration on September 29, 2023,
and the Board timely filed its notice of appeal on October 26, 2023. The Board appeals the court’s
June 23, 2023, order granting Officer Rainey’s complaint for administrative review and its
September 29, 2023, order denying reconsideration.
¶ 36 On April 29, 2024, we granted the Board’s motion to file an amended notice of appeal to
allow the Board to add the circuit court’s March 15, 2024, order awarding attorney fees and costs.
¶ 37 We have jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 301 (eff.
Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered by
the circuit court in civil cases.
¶ 38 III. ANALYSIS
¶ 39 Review of an administrative agency’s decision is governed by the Administrative Review
Law (735 ILCS 5/3-101 et seq. (West 2022)). The Code specifically provides that the
Administrative Review Law “shall apply to and govern all proceedings for the judicial review of
final administrative decisions of the retirement board provided for under this Article.” 40 ILCS
5/5-228(a) (West 2022). With certain exceptions, jurisdiction to review final administrative
decisions is vested, in the first instance, in the circuit court (735 ILCS 5/3-104 (West 2022)) and
is commenced by the filing of a complaint for administrative review (id. § 3-103). When an appeal
is taken from the circuit court’s decision on a complaint for administrative review, we review the
administrative decision rather than the decision of the circuit court. Wade v. City of North Chicago
Police Pension Board, 226 Ill. 2d 485, 504-05 (2007).
12 No. 1-23-1993
¶ 40 Our standard of review depends on the nature of the question presented. AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). We review
questions of law de novo (id.), we defer to an agency’s factual findings unless they are against the
manifest weight of the evidence (City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.
2d 191, 204 (1998)), and we review mixed questions of law and fact for clear error (AFM, 198 Ill.
2d at 391).
¶ 41 On appeal, the Board argues that we must affirm its decision to terminate Officer Rainey’s
duty disability benefits because it was not against the manifest weight of the evidence. In response,
Officer Rainey relies on the fact that, under Kouzoukas, 234 Ill. 2d 446, a finding that a police
officer is not disabled is against the manifest weight of the evidence where, as in this case, the
CPD has refused to return that officer to work. As explained below, we agree with Officer Rainey,
reverse the Board’s decision on that basis, and affirm the decision of the circuit court, including
its decision to award attorney fees and costs to Officer Rainey.
¶ 42 A. The Board’s Finding That Officer Rainey is No Longer
Disabled is Against the Manifest Weight of the Evidence
¶ 43 Officer Rainey argues—relying on Kouzoukas, 234 Ill. 2d at 470-72—that she is entitled
to receive duty disability benefits because the CPD has found her not medically qualified to return
to duty and that fact renders her disabled and entitled to benefits. The Board, which failed to cite
Kouzoukas at all in its opening brief, argues in its reply brief that applying Kouzoukas here would
be a “radical extension” of that case. We disagree and find, as did the circuit court, that Officer
Rainey’s situation fits squarely within the rule that our supreme court announced in Kouzoukas.
We further find that the Board has forfeited any argument that there may be an exception to the
rule in Kouzoukas where, as here, the Board has found an officer is no longer disabled as a result
13 No. 1-23-1993
of her initial duty-related injuries but is still disabled due to some unrelated cause. Accordingly,
we reverse the Board’s decision to discontinue Officer Rainey’s duty disability benefit.
¶ 44 The question before our supreme court in Kouzoukas was whether the plaintiff there was
disabled, as that word is defined in section 5-115 of the Code: “ ‘A condition of physical or mental
incapacity to perform any assigned duty or duties in the police service.’ ” (Emphasis in original.)
Id. at 469 (quoting 40 ILCS 5/5-115 (West 2006)). The court found that where the CPD would not
return the officer in that case to active service, she had “carried her burden of proving that she was
disabled, that is, that she had a physical condition which made her incapable of performing any
assigned duty and that no position within her limitations was offered to her.” Id. at 470.
¶ 45 In response to the Board’s argument that “its decision to grant or reject a claimant’s
application for duty disability benefits should not be dependent on the availability of an assignment
in [CPD] within the claimant’s restrictions” because such a rule “encroach[ed] on the ‘exclusive
original jurisdiction’ bestowed upon it by the Pension Code” Id. at 470-71 (quoting 40 ILCS
5/5-189 (West 2006)), the Kouzoukas court found:
“The Board has the duty under the Code to determine whether a claimant is
disabled. In the case at bar, [the plaintiff] presented evidence which established that she
had chronic back pain which severely limited her ability to sit, stand, walk, drive, and wear
a gunbelt. Moreover, because of these limitations, [the plaintiff’s] doctors did not provide
her with a release to return to work. As a result, the [CPD] would not reassign [the plaintiff]
to any position. Under these circumstances, [the plaintiff] met her burden of proving that
she was disabled. To hold otherwise would be to place [the plaintiff] in an untenable ‘catch
22’ situation—unable to work because the [CPD] will not assign her to a position in the
police service which she can perform, yet unable to obtain disability benefits.” (Emphasis
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in original.) Id. at 471.
¶ 46 The language of section 5-156, which governs how proof of a disability should be furnished
to the Board—initially and at status proceedings to determine whether a disability has ceased—
encompasses the understanding the court had in Kouzoukas that a disability exists unless the officer
is physically capable of active service. That statute provides, in relevant part, that “[w]hen the
disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be
returned to active service.” (Emphasis added.) 40 ILCS 5/5-156 (West 2022).
¶ 47 The Seventh Circuit’s opinion in Buttitta v. City of Chicago, 9 F.3d 1198 (7th Cir. 1993),
also confirms this. We look to federal cases as persuasive, but not controlling, authority. People
ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001). Buttitta involved a due
process claim and issues that are not relevant here. However, in its analysis of the due process
rights created by the Code, the court examined the interaction between the Board’s authority to
award disability benefits and the police department’s decision to reinstate an officer to active duty.
The court explained that the Code “does not bestow upon the Pension Board the exclusive authority
to determine when a disability ends and to compel the police department to return an officer to
active duty.” Buttitta, 9 F.3d at 1203. Instead, the court reasoned that because “the Board has a
duty to preserve pension funds and the [CPD] has a duty to keep unfit officers off the streets,”
section 5-156 necessarily “require[d] both the Board and the [CPD] to be involved in th[e] process”
of “transferring police officers between disability and active duty.” Id. at 1204. The Seventh
Circuit reasoned: “As we construe the statute, a disability ceases only if the Board and the
department agree to that effect. Thus, if the [CPD] denies reinstatement because of disability,
whether new or pre-existing, the Board must continue payment of the benefit.” Id.
¶ 48 This court has followed Kouzoukas and held that if the CPD does not reinstate a police
15 No. 1-23-1993
officer for medical reasons, that officer is disabled for purposes of the Code. See Ohlicher v.
Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago, 2024 IL App (1st)
231699-U, ¶ 27 (finding the Board’s conclusion that the plaintiff “was not disabled within the
meaning of the Pension Code” to be against the manifest weight of the evidence because “the
medical evidence established that his line-of-duty injury prevented him from performing duties of
an active police officer and no evidence was presented that he was offered a limited duty position
within the [CPD]”); Koniarski v. Retirement Board of the Policeman’s Annuity & Benefit Fund of
Chicago, 2021 IL App (1st) 200501-U, ¶¶ 40-44 (holding that “where no limited-duty position is
available to [the plaintiff] and the CPD has expressly found that it cannot accommodate her
physical limitations, she remains disabled and is entitled to disability benefits”). Although these
are unpublished cases, we rely on them as persuasive authority, as we are entitled to do under
Illinois Supreme Court Rule 23(e)(1) (eff. Feb. 1, 2023) (providing that a nonprecedential order
entered under Rule 23(b) after January 1, 2021, “may be cited for persuasive purposes”).
¶ 49 When the Board finally addresses Kouzoukas in its reply brief, it argues that where there
is “a different disability unrelated to the original cause of disability,” the officer need not be kept
on duty disability benefits under Kouzoukas. The Board argues that “the new disability may or
may not be related to the original injury and may or may not be related to an act of duty” and that
“[w]ithout an application and examination of these new symptoms of disability, Kouzoukas isn’t
applicable.” But the Board failed to make this argument until its reply brief and has therefore
forfeited the argument. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued” in the
appellant’s opening brief “are forfeited and shall not be raised in the reply brief, in oral argument,
or on petition for rehearing.”)
¶ 50 The Board’s failure to address Kouzoukas in its opening brief is particularly disingenuous
16 No. 1-23-1993
here, where Officer Rainey has been relying on Kouzoukas since she filed her motion to reconsider
the Board’s oral decision, and the circuit court wholly relied on Kouzoukas in reversing the Board’s
decision. The Board’s argument appears to be that that there is an exception to Kouzoukas where
the Board finds, based on sufficient evidence, that a duty-related disability has ceased, but the
officer is still disabled for another reason. However, that argument should have been presented in
the Board’s opening brief on appeal. As a result of the Board’s failure to address Kouzoukas before
its reply brief, the Board deprived Officer Rainey of the chance to respond to the Board’s reading
of the case in her brief and deprived this court of a fully developed discussion of what the Board
would be allowed to do, under Kouzoukas, if it makes this finding.
¶ 51 At oral argument, Officer Rainey’s counsel argued that the Board, having found that
Officer Rainey was no longer disabled as a result of a duty-related injury but was still disabled,
should have provided her with an ordinary disability benefit. Compare 40 ILCS 5/5-154(a) (West
2022) (providing that an active police officer who is disabled as the result of performing an act of
duty is entitled to a duty disability benefit equal to 75% of the officer’s salary, subject to certain
exceptions) with id. § 5-155 (providing that a police officer who is disabled due to “any cause
other than injury incurred in the performance of an act of duty” is entitled to an ordinary disability
benefit of 50% of the officer’s salary).
¶ 52 This may well be the appropriate course. The Board does not appear to doubt its own
authority to reduce Officer Rainey’s benefits to ordinary disability, as demonstrated by its
“compromise” offer to her at the outset of the August 25, 2022, hearing. However, we will not
review whether this reduction in benefits is the appropriate response, where, as here, the Board
failed to either take that course or to even raise the question of what is allowed under Kouzoukas
in this situation until its reply brief.
17 No. 1-23-1993
¶ 53 B. Attorney Fees
¶ 54 The Board also contends that the circuit court erred when it awarded Officer Rainey
attorney fees and costs pursuant to section 5-228(b) of the Code. Id. § 5-228(b). This requires us
to interpret that statute, which is a question of law that we review de novo. Dawkins v. Fitness
International, LLC, 2022 IL 127561, ¶ 27.
¶ 55 Section 5-228(b) provides:
“If any policeman whose application for either a duty disability benefit under Section 5-154
or for an occupational disease disability benefit under Section 5-154.1 has been denied by
the Retirement Board brings an action for administrative review challenging the denial of
disability benefits and the policeman prevails in the action in administrative review, then
the prevailing policeman shall be entitled to recover from the Fund court costs and
litigation expenses, including reasonable attorney’s fees, as part of the costs of the action.”
40 ILCS 5/5-228(b) (West 2022).
¶ 56 The Board argues that this language is “clear and unambiguous,” allowing only “for
recovery of these monies after successful reversal of a denial of an application for duty or
occupational disability,” and therefore does not apply here where Officer Rainey was initially
awarded duty disability benefits but those benefits were subsequently discontinued by the Board.
We disagree.
¶ 57 We first note that the Code is meant to be liberally construed in favor of police officers.
Holland v. City of Chicago, 289 Ill. App. 3d 682, 689-90 (1997). And our review of the language
of the relevant provisions, when viewed in the context of the Pension Code as a whole, makes clear
to us that this fee provision applies where, as in this case, an applicant for duty disability benefits
has their benefits discontinued by the Board at a status hearing and succeeds in having that decision
18 No. 1-23-1993
by the Board reversed on appeal.
¶ 58 Section 5-154 is titled “Duty disability benefit; child’s disability benefit” and provides, in
part, that “[a]n active policemen who becomes disabled *** as the result of injury incurred *** in
the performance of an act of duty, has a right to receive duty disability benefit during any period
of such disability for which he does not have a right to receive salary.” 40 ILCS 5/5-154(a) (West
2022. Section 5-154 provides for an ongoing right to benefits—during any period of such
disability—but does not provide any procedures for applying for the benefit.
¶ 59 Section 5-156 contains those procedures that apply both to the initial application and to
ongoing status hearings in which the officer’s right to continued benefits is reviewed. That section
is titled “Proof of disability—Physical examinations” and provides, in its entirety:
“Proof of duty, occupational disease, or ordinary disability shall be furnished to the board
by at least one licensed and practicing physician appointed by the board. In cases where
the board requests an applicant to get a second opinion, the applicant must select a
physician from a list of qualified licensed and practicing physicians who specialize in the
various medical areas related to duty injuries and illnesses, as established by the board. The
board may require other evidence of disability. A disabled policeman who receives a duty,
occupational disease, or ordinary disability benefit shall be examined at least once a year
by one or more physicians appointed by the board. When the disability ceases, the board
shall discontinue payment of the benefit, and the policeman shall be returned to active
service.” Id. § 5-156.
¶ 60 Reading the two sections together, it is clear that there are not two distinct processes—one
for applying for benefits and the other for discontinuing them. Rather, section 5-154 defines the
benefit and the ongoing right to that benefit, and section 5-156 describes the process for obtaining
19 No. 1-23-1993
and reviewing the ongoing right to that benefit.
¶ 61 In 2022, Officer Rainey was before the Board on what the Board has referred to as a status
hearing relative to her ongoing section 5-154 application for duty disability benefits. Officer
Rainey’s request for ongoing disability benefits was denied by the Board, and she then prevailed
on administrative review. Under section 5-228(b), she brought “an action for administrative review
challenging the denial of disability benefits” and prevailed. See id. § 5-228(b). She is entitled to
costs and fees.
¶ 62 Section 5-228(b) applies only to officers who have applied “for either a duty disability
benefit under Section 5-154 or for an occupational disease disability benefit under Section
5-154.1,” clearly distinguishing them from officers who were denied ordinary disability benefits
under section 5-155. Id. An occupational disease disability benefit is awarded to an officer who,
after at least 10 years of service, “suffer[ed] a heart attack or any other disabling heart disease” but
was not entitled to a duty disability benefit. Id. § 5-154.1(b). In providing for an award of fees and
costs to an officer seeking duty disability or occupational disease disability but not ordinary
disability benefits, the legislature clearly and logically prioritized officers who were wrongly
denied job-related disability benefits.
¶ 63 While that is a rational distinction, distinguishing between officers who were wrongly
denied job-related disability benefits in the first instance and those who were wrongly denied their
ongoing job-related disability benefits, as the Board would have us do, makes no sense. As our
supreme court has made clear, “[w]hen a proffered reading of a statute leads to absurd results or
results that the legislature could not have intended, courts are not bound by that construction, and
the reading leading to absurdity should be rejected.” Dawkins, 2022 IL 127561, ¶ 27.
¶ 64 We acknowledge that this court has previously held that section 5-228(b) does not apply
20 No. 1-23-1993
to cases like this one, where the Board terminates an ongoing duty disability benefit. Warner v.
Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago, 2022 IL App (1st)
200833-U, ¶¶ 68-69; Koniarski, 2021 IL App (1st) 200501-U, ¶ 47. However, these decisions are
unpublished and are therefore not binding authority that the circuit court must follow. Ill. S. Ct. R.
23(e)(1) (eff. Feb. 1, 2023). We find that both decisions were conclusory on this issue, and we do
not find them persuasive.
¶ 65 The Board also relies on the fact that recent legislation has been proposed that would allow
for an award of fees and costs under section 5-228(b) for any officer who was wrongly denied any
disability benefit, including ordinary disability, and also specifically for officers whose benefits
were wrongly terminated by the Board. See 103d Ill. Gen. Assem., House Bill 5264, 2024 Sess.
The bill is clearly intended to extend the fee provision to officers who are denied ordinary
disability. While the Board contends that bill also expands the fee provision by extending awards
of fees and costs to officers whose duty or occupational disease disability benefits are terminated,
the bill could also be intended as nothing more than a clarification in this regard, perhaps in
response to this court’s decisions in Warner and Koniarski. See Bruso v. Alexian Brothers
Hospital, 178 Ill. 2d 445, 458 (1997) (“in amending a statute, the legislature is presumed to have
been aware of judicial decisions interpreting the statute and to have acted with this knowledge”).
In short, this new legislation is not determinative on this issue before us.
¶ 66 Accordingly, we affirm the circuit court’s award of attorney fees and costs to Officer
Rainey.
¶ 67 IV. CONCLUSION
¶ 68 For the foregoing reasons, we reverse the decision of the Board and order the Board to
reinstate Officer Rainey’s duty disability benefits retroactive to July 1, 2022. We affirm the circuit
21 No. 1-23-1993
court’s judgment in all respects. We remand this case to the circuit court to allow that court to
calculate an appropriate award of additional fees and costs incurred by Officer Rainey.
¶ 69 Circuit court judgment affirmed.
¶ 70 Board decision reversed.
¶ 71 Cause remanded with directions.
22 No. 1-23-1993
Rainey v. The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago, 2024 IL App (1st) 231993
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 22-CH- 11096, the Hon. Joel Chupack, Judge, presiding.
Attorneys Richard J. Reimer and Nemura G. Pencyla of Reimer for Dobrovolny & LaBardi PC, of Hinsdale, for appellant. Appellant:
Attorneys Ralph J. Licari of Ralph J. Licari & Associates, Ltd., of for Northfield, for appellee. Appellee: