Village of Oak Park v. Village of Oak Park Firefighters Pension Board

839 N.E.2d 558, 362 Ill. App. 3d 357, 298 Ill. Dec. 235, 2005 Ill. App. LEXIS 1103
CourtAppellate Court of Illinois
DecidedNovember 7, 2005
Docket1-05-0316
StatusPublished
Cited by38 cases

This text of 839 N.E.2d 558 (Village of Oak Park v. Village of Oak Park Firefighters 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
Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 839 N.E.2d 558, 362 Ill. App. 3d 357, 298 Ill. Dec. 235, 2005 Ill. App. LEXIS 1103 (Ill. Ct. App. 2005).

Opinion

JUSTICE GORDON

delivered the opinion of the court:

Dennis Weidler, a hearing-impaired Oak Park firefighter, filed an application for a duty-related disability pension. A hearing was held before five members of the nine-member Village of Oak Park Firefighters Pension Board (the Pension Board). 1 The Pension Board voted by a 3 to 2 margin to grant Weidler a duty-related disability pension. The Village of Oak Park (the Village) then successfully moved to intervene as an interested party. After the Village’s motion to rescind the pension award was denied, 2 the Village petitioned for administrative review. The circuit court upheld the Pension Board’s decision. For the reasons that follow, we affirm.

BACKGROUND

The following was introduced into evidence at the hearing before the Pension Board. On January 24, 2003, the director of human resources for the Village wrote Weidler a letter, which stated, in pertinent part:

“As a result of an audiogram[ 3 ] ***, it has been determined that you are not fit to perform the essential duties and responsibilities of the position of Fire Fighter for the Village of Oak Park.
You have the right to apply for a Fire Pension Disability with the Oak Park Fire Pension Board. It is our recommendation that you apply for that disability. In the event you are denied a disability pension, it will be the Village’s recommendation to the Board of Fire and Police Commission to terminate your employment as a Fire Fighter due to your medical condition and the fact that there are no reasonable accommodations that the Village can make for you in the position of Fire Fighter.”

On January 28, 2003, Weidler filed an application for a duty-related disability pension. Shortly thereafter, Weidler was examined by three physicians chosen by the Pension Board, Drs. Peter Orris (on February 5, 2003), Daniel G. Samo (on February 18, 2003), and Sam J. Marzo (on March 6, 2003).

In his report, Dr. Orris noted that Weidler gave a history of hearing loss since 1992 and of using hearing aids on the job since 1998. Dr. Orris concluded that Weidler had:

“Moderate/Severe hearing loss more likely than not secondary to firefighting. Following NFPA [(National Fire Protection Association)] standards, Mr. Weidler is unfit to return to active firefighting. He may perform other duties if the department can accommodate him.”

Dr. Orris certified Weidler as permanently disabled from firefighter service.

Dr. Samo, like Dr. Orris, noted in his report that Weidler’s hearing problem dated back to 1992, and in 1998 Weidler began using hearing aids. Dr. Samo additionally noted that at the time of the examination Weidler used hearing aids in both ears. According to Dr. Samo, a review of Weidler’s medical records showed that his hearing deficit was “not typical for aging or noise-induced loss.” Dr. Samo assessed Weidler’s condition as follows:

“My impression is that [firefighter] Weidler does have a neurosensory hearing loss. I feel this is not noise induced, but is congenital. I do not think it is related to noise exposure or to his job duties. The amount of hearing loss would be moderate.”

Dr. Samo further opined that Weidler’s impairment did not rise to the level of a disability:

“At this point from [Weidler’s] history [his hearing loss] is not impacting his ability to do his [essential job functions]. He is well accommodated using hearing aids and with them in place has fairly normal hearing on testing. His condition would *** therefore not absolutely preclude him from being a firefighter. I do not feel at this point that he is disabled from his regular job duties as a firefighter.”

After Dr. Samo issued his report, the Pension Board wrote to him, advising him that the Village no longer permitted its firefighters to wear hearing aids while on duty and that it had no light- or restricted-duty positions available. The record contains no response from Dr. Samo to that correspondence.

Lastly, Dr. Marzo, in his report, opined that Weidler had

“a mild to moderate mid-frequency sensorineural hearing loss which is likely genetic in nature. This hearing loss is very well-rehabilitated with hearing aids bilaterally.”

Consequently, Dr. Marzo initially concluded that:

“[Weilder] is able to perform his essential duties as a firefighter without any difficulty with this mild hearing impairment.”

After Dr. Marzo issued his report, he too was advised by the Pension Board that Village firefighters were no longer permitted to wear hearing aids while on duty and that the fire department had no restricted- or light-duty positions available. Dr. Marzo was also advised that the Village had determined that due to his hearing loss Weidler was not fit to perform the essential duties of a firefighter. This led Dr. Marzo to reconsider his initial opinion and certify Weidler as permanently disabled from firefighter service.

On May 23, 2003, the director of human resources for the Village wrote Weidler a memo, apparently modifying his January 24, 2003, letter:

“No final determination has been made at this time concerning your ability to perform the essential functions of the Firefighter classification with regard to your hearing. Until such a determination is made, it is not necessary for you to apply for a disability retirement.”

On August 25, 2003, the director of human resources wrote a memo to the Village attorney and the Village fire chief, apparently superceding the memo of May 23, 2003. The new memo stated:

“Attached for your information is a letter from Dr. Lyman[ 4 ] of West Suburban Hospital stating that Firefighter/Paramedic Dennis Weidler does not meet the National Fire Protection Association hearing standards. For your information, the 2003 standards are now in effect.”

Dr. Lyman’s letter referred to in the memo indicated that he had reviewed Weidler’s most recent audiogram taken on August 21, 2003. The letter further stated, in pertinent part:

“By either the 2000 or the proposed 2003 NFPA guidelines, I would not pass Mr. Weidler to perform his job as a firefighter or wearing a respirator. His hearing loss condition is permanent and he would therefore not be expected to qualify to wear a respirator and perform firefighting duties in the future.”

On August 27, 2003, the Pension Board, with five of its nine members in attendance, held a hearing. The five attending members constituted a quorum.

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Bluebook (online)
839 N.E.2d 558, 362 Ill. App. 3d 357, 298 Ill. Dec. 235, 2005 Ill. App. LEXIS 1103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-oak-park-v-village-of-oak-park-firefighters-pension-board-illappct-2005.