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                                                                                                                                                    FIRST DIVISION
                                                                                                                                                    November 7, 2005

No. 1-05-0316

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 ofOak Park Firefighters Pension Board (the Pension Board).⁽¹⁾ The Pension Board voted by a 3 to 2margin 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 rescindthe pension award was denied,⁽²⁾ the Village petitioned for administrative review. The circuit courtupheld 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. OnJanuary 24, 2003, the director of human resources for the Village wrote Weidler a letter whichstated, in pertinent part:

"As a result of an audiogram[⁽³⁾] ***, it has been determined that you arenot fit to perform the essential duties and responsibilities of the position of FireFighter for the Village of Oak Park.

You have the right to apply for a Fire Pension Disability with the Oak ParkFire Pension Board. It is our recommendation that you apply for that disability. Inthe event you are denied a disability pension, it will be the Village'srecommendation to the Board of Fire and Police Commission to terminate youremployment as a Fire Fighter due to your medical condition and the fact that thereare no reasonable accommodations that the Village can make for you in theposition 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 ofusing hearing aids on the job since 1998. Dr. Orris concluded that Weidler had:

"Moderate/Severe hearing loss more likely than not secondary tofirefighting. Following NFPA [(National Fire Protection Association)] standards,Mr. Weidler is unfit to return to active firefighting. He may perform other duties ifthe 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 to1992, and in 1998 Weidler began using hearing aids. Dr. Samo additionally noted that at the timeof the examination Weidler used hearing aids in both ears. According to Dr. Samo, a review ofWeidler'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 neuro-sensoryhearing loss. I feel this is not noise induced, but is congenital. I do not think it isrelated to noise exposure or to his job duties. The amount of hearing loss wouldbe 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 abilityto do his [essential job functions]. He is well accommodated using hearing aidsand 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 atthis 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 Villageno longer permitted its firefighters to wear hearing aids while on duty and that it had no light- orrestricted duty positions available. The record contains no response from Dr. Samo to thatcorrespondence.

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

"a mild to moderate mid-frequency sensorineural hearing loss which is likelygenetic in nature. This hearing loss is very well-rehabilitated with hearing aidsbilaterally."

Consequently, Dr. Marzo initially concluded that:

"[Weilder] is able to perform his essential duties as a firefighter without anydifficulty with this mild hearing impairment."

After Dr. Marzo issued his report, he too was advised by the Pension Board that Villagefirefighters were no longer permitted to wear hearing aids while on duty and that the firedepartment had no restricted or light-duty positions available. Dr. Marzo was also advised thatthe Village had determined that due to his hearing loss Weidler was not fit to perform theessential duties of a firefighter. This led Dr. Marzo to reconsider his initial opinion and certifyWeidler 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 abilityto perform the essential functions of the Firefighter classification with regard toyour hearing. Until such a determination is made, it is not necessary for you toapply for a disability retirement."

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

"Attached for your information is a letter from Dr. Lyman[⁽⁴⁾] of WestSuburban Hospital stating that Firefighter/Paramedic Dennis Weidler does notmeet the National Fire Protection Association hearing standards. For yourinformation, the 2003 standards are now in effect."

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

"By either the 2000 or the proposed 2003 NFPA guidelines, I would notpass Mr. Weidler to perform his job as a firefighter or wearing a respirator. Hishearing loss condition is permanent and he would therefore not be expected toqualify 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, helda hearing. The five attending members constituted a quorum. In addition to the foregoingmaterials, Weidler introduced into evidence: the report of decibel readings, taken on June 1, 2001,reflecting the noise levels inside the Village's fire trucks when the sirens were on; a letter, datedMarch 12, 2003, from an NFPA staff member to the deputy chief of the Village fire departmentdiscussing hearing loss standards and concerns about firefighters' use of hearingaids--emphasizing that hearing aids, unlike firefighting gear, are not designed to withstandfirefighting environment and, therefore, compromise a firefighter's ability to do his job safely;Weidler's July 10, 2002, occupational functional evaluation, which indicated that he had adisability that needed accommodation and that he could not wear a self-containing breathingapparatus (SCBA); and Weidler's audiological report prepared by a nonphysician clinicalaudiologist. The audiological report stated:

"The configuration shown on the audiogram from August 21, 2003 does notindicate a noise induced hearing loss. It is possible though, that a patient couldhave a genetic hearing loss coupled with a noise induced hearing loss. Mr.Weidler provided me with a chart of his thresholds from previous tests beginningin 1992. *** The shift from the 9/24/92 audiological exam to the 8/21/03audiological exam in the left ear shows a configuration, which is usually associatedwith noise induced hearing loss. However, the configuration in the right ear mayor may not indicate hearing loss associated with noise exposure ***."

The Pension Board then heard Weidler's testimony.

Weidler testified that he had been a firefighter for almost 22 years and his duties includedparamedic services, rescue, fire suppression and public education. His duties required him towork with firefighting equipment and ride in fire trucks during every shift. Weidler wasfrequently exposed to loud noise at work in the form of fire truck sirens and horns, noises fromgas-powered generators for the rescue tools, incoming emergency calls which started with a loudtone, as well as various audio alarms and communication devices built into his air mask. He hadnot been exposed to loud noise outside of his employment with the fire department. Weidler wasfirst diagnosed with hearing loss in 1992 and started to wear hearing aids in 1998. His hearingwas worse in his left ear. In 1998, after getting the hearings aids, Weidler began to wear noiseprotection headphones over his hearing aids to reduce his exposure to on-the-job noise. At somepoint, Weidler had filed a worker's compensation claim concerning his hearing loss which wassettled in 2001. Since the July 10, 2002, functional evaluation he has been on restricted (light)duty.

On cross-examination, Weidler admitted that there was a history of hearing loss in hisfamily. His father, who was a firefighter for over 20 years, wore hearing aids. Weidler's paternalgrandfather, who worked with heavy equipment, also sustained hearing loss. Weidler's sister hadhearing problems which did not improve with surgery.

After Weidler's testimony, the Pension Board voted on whether sufficient evidence waspresented to award him a duty-related disability pension. As noted, three of its members,constituting the majority of the members present, voted to award Weidler a line-of-duty disabilitypension. At that point, one of the dissenters, who was also an attorney for the Village, contendedthat a pension award is something that must be approved by the majority of the board, rather thanthe majority of the quorum. The Pension Board's attorney responded that although he believedthat the majority of the quorum was sufficient, the board would research that issue and reconveneif the majority of all of its members was needed to approve Weidler's pension.

On October 16, 2003, the Village moved to intervene as an interested party so that itcould appeal the Pension Board's determination. Among the grounds urged for the interventionwas that the approval of the pension award was not made by a majority of the entire PensionBoard.

While that motion was pending, on November 19, 2003, the three-member majority of thequorum (hereinafter referred to as the majority), purporting to speak on behalf of the PensionBoard, issued a written decision and order awarding Weidler a duty-related disability pension. The majority opinion explained that it relied on the reports of Drs. Orris and Marzo, who certifiedthat Weidler was disabled. The majority believed that Dr. Samo's opinion to the contrary wascontroverted by the NFPA guidelines for 2003, the letter from NFPA staff member indicating thatthe use of a hearing aid would compromise a firefighter's ability to perform "hearing tasks," andthe Village's January 2003 letter where the Village indicated that it found Weidler unable toperform his duties. The majority further found that Weidler presented sufficient evidence that hishearing loss occurred as a result of cumulative effects of acts of duty. Although it acknowledgedthat there was evidence that Weidler's hearing loss may have been hereditary, the majority foundthat, even if it was hereditary, Weidler's hearing loss was exacerbated by the exposure tofirefighting equipment and sirens. Lastly, the majority rejected the argument that the majority ofall board members was required to approve a disability pension. In support, the majority reliedupon, among other things, an advisory opinion issued upon the board's request by the PublicPension Division of the Illinois Department of Insurance--a regulatory body of the pensionboards. The advisory opinion stated that a firefighters' pension fund board can approve adisability pension by a majority of the quorum.

The Pension Board's dissenters found that Weidler's hearing loss was purely hereditaryand unrelated to any firefighting duties. However, neither dissenter discussed whether Weidlerwas, in any event, disabled and would therefore qualify for a non-duty disability pension.

On December 12, 2003, the Village moved to rescind the Pension Board's decision andorder on the sole ground that it violated the Illinois Open Meetings Act (5 ILCS 120/1 et seq.(West 2002)). The Village alleged that no meeting was held in connection with the signing of thedecision and order. A hearing on this motion, as well as the Village's motion to intervene, washeld on December 19, 2003, before eight members of the Pension Board. The Pension Boardgranted the motion to intervene. The motion to rescind, however, failed as a result of the tied 4to 4 vote.

On December 23, 2003, the Village filed a petition for administrative review. The Villageargued that the pension award was invalid on three alternative grounds: the majority of the entiremembership of the board did not approve the award; none of the physicians chosen by the boardcertified that Weidler's disability was linked to his performance of duty; and the determination thatWeidler's hearing loss was duty-related was against the manifest weight of the evidence. OnJanuary 13, 2005, the circuit court affirmed the Pension Board's decision. This appeal was timelyfiled on February 4, 2005. We granted Associated Fire Fighters of Illinois (AFFI) leave to file anamicus curiae brief.

ANALYSIS

The Village raises the same arguments on appeal as it did before the circuit court.

On appeal, we review the administrative agency's decision and not the circuit court'sdetermination. Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 560(2004). Judicial review of a decision of the Pension Board is governed by the AdministrativeReview Law (735 ILCS 5/3-101 et seq. (West 2002)). 40 ILCS 5/4-139 (West 2002). "Theapplicable standard of review, which determines the degree of deference given to the agency'sdecision, depends upon whether the question presented is one of fact, one of law, or a mixedquestion of law and fact." AFM Messenger Service, Inc. v. Department of Employment Security,198 Ill. 2d 380, 390 (2001). The factual findings of the administrative agency are considered tobe prima facie correct and will be reversed only if against the manifest weight of the evidence. 735 ILCS 5/3-110 (West 2002); Antonelli v. Board of Trustees of the Hillside Police PensionBoard, 287 Ill. App. 3d 348, 353 (1997). On the other hand, pure questions of law are reviewedde novo. MacDonald v. Board of Trustees of the Park Ridge Police Pension Fund, 294 Ill. App.3d 379, 382 (1998). Lastly, mixed questions of law and fact are reviewed under the clearlyerroneous standard. See AFM Messenger Service, 198 Ill. 2d at 391-95.

The Village's first contention is that the August 27, 2003, vote by the Pension Board wasinsufficient, as a matter of law, to award Weidler a disability pension because only three of its ninemembers voted in Weidler's favor. The Pension Board responds that this issue is not properlypreserved for review because the Village failed to raise it in the posthearing motion to rescind anddid not orally argue it after being granted leave to intervene. We disagree. While the board iscorrect that the Village did not raise the voting issue in its motion to rescind, the Village did raiseit in its motion to intervene, which was ruled upon during the December 19, 2003, hearing--thesame hearing that decided the motion to rescind. Moreover, the report of the proceedings reflectsthat the board, in fact, discussed the voting issue. The Village's motion to intervene implicatedthe question of timeliness, i.e., whether the motion was brought within 35 days of the board's finaldecision. In that context, one board member noted that given the advisory opinion from theIllinois Department of Insurance--that the majority of the quorum may approve a disabilitypension--the board's decision was valid. Later in the proceedings, the dissenter who raised thevoting issue during the August hearing expressed the view that the board, in addition to theadvisory opinion, should have looked to the legislative history of the statutory provisionaddressing the award of firefighters' disability pension (40 ILCS 5/4-112 (West 2002)) and othercomparable statutory provisions. The Village subsequently articulated that position before thecircuit court. Thus, it is fair to say that the voting issue was sufficiently raised to preserve it forreview. See Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997) (points raised onappeal must be commensurate with issues presented at trial). We must, therefore, address theVillage's contention on its merits.

Section 4-112 of Article 4: Firefighters' Pension Fund--Municipalities 500,000 andUnder, of the Illinois Pension Code (the Pension Code), provides that "[a] disability pension shallnot be paid until disability has been established by the board." 40 ILCS 5/4-112 (West 2002). The Village argues that this language is ambiguous as to whether it requires a majority of theentire board or merely a majority of the members in attendance, so long as there is a quorum. The Village, consequently, urges that we look to analogous Illinois pension provisions toascertain the legislative intent. The Village cites to a number of such provisions--GeneralAssembly Retirement System, requiring no fewer than four out of seven votes for any action (40ILCS 5/2-129 (West 2002)); Police Pension Fund--Municipalities 500,000 and Under, requiringapproval "by a majority of the board members" (40 ILCS 5/3-134 (West 2002)); Policemen'sAnnuity and Benefit Fund--Cities Over 500,000, requiring approval "by a vote of the majority ofthe members of the board as shown by roll call entered upon the official record of proceedings ofthe meeting at which such action is taken" (40 ILCS 5/5-182 (West 2002)); Firemen's Annuityand Benefit Fund--Cities Over 500,000, requiring approval "by the affirmative vote of a majorityof the total membership of the board as shown by roll call entered upon the official record ofproceedings of the meeting at which such action is taken" (40 ILCS 5/6-178 (West 2002));Municipal Employees', Officers', and Officials' Annuity and Benefit Fund--Cities Over 500,000Inhabitants, requiring approval "by a vote of a majority of the board members" (40 ILCS 5/8-196(West 2002)); County Employees' and Officers' Annuity and Benefit Fund--Counties Over500,000 Inhabitants, requiring approval "by a vote of the majority of the board members as shownby roll call entered upon the official record of the meeting" (40 ILCS 5/9-189 (West 2002));Laborers' and Retirement Board Employees' Annuity and Benefit Fund--Cities Over 500,000Inhabitants, requiring approval "by a vote of a majority of the board members as shown by rollcall entered upon the official record of the meeting" (40 ILCS 5/11-185 (West 2002)); andMetropolitan Water Reclamation District Retirement Fund, requiring approval "by a vote of amajority of the [b]oard members, as shown by roll call entered upon the official record of themeeting at which such action is taken" (40 ILCS 5/13-705 (West 2002)). The Village additionallycites to section 3.1-40-40 of the Illinois Municipal Code (65 ILCS 5/3.1-40-40 (West 2002)),which governs city council voting and requires, in pertinent part, that all monetary expendituresbe approved by a majority of all council members.

The Pension Board and the AFFI argue that the statutory provision at issue is notambiguous and therefore it would not be proper to engraft unto it other conditions which thelegislature did not provide for. They further argue that, in the absence of a specific legislativelyimposed voting requirement, the common law governs. Weidler joins in the latter argument andadditionally points out that the common-law rule that a majority of the quorum may make bindingdecisions is well established and presumed to be known by the legislature. Because this is a purequestion of law, we review it de novo.

We agree with the Village that the statutory provision at issue is ambiguous. See In reB.L.S., 202 Ill. 2d 510, 517 (2002) ("[a] statute is ambiguous when it is capable of beingunderstood by reasonably well-informed persons in two or more different senses"); People ex rel.Compton v. Penn, 33 Ill. App. 3d 372, 373 (1975) ("[a]re these sections then to be construed asrequiring unanimous action by the [board] *** or do they require only action by a majority of all[of] them or only action by a majority of those who participate in the undertaking?"); In reTimothy T., 343 Ill. App. 3d 1260, 1263 (2003) ("Both respondent and the State offer reasonableinterpretations of [the statute]. We thus conclude that the statutory language is subject to morethan one reasonable interpretation and is ambiguous"). Nevertheless, for the reasons discussedbelow, we find that the number of votes required for the disability to be "established by theboard" within the meaning of section 4-112 is governed by common law.

A "quorum" is the number of assembled members that is necessary for a decision-makingbody to be legally competent to transact business. 59 Am. Jur. 2d Parliamentary Law