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No. 2--03--1174

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

Plaintiff, Scott Alm, appeals from an order of the circuit court of Lake County affirming thedecision of defendant, the Lincolnshire Police Pension Board (Board), denying plaintiff's applicationfor line-of-duty disability benefits, and instead awarding him nonduty benefits. Plaintiff contends thatthe Board's decision is against the manifest weight of the evidence. We reverse.

On June 17, 2000, plaintiff was employed by the Village of Lincolnshire as a sworn policeofficer and was assigned to the police department's bicycle patrol unit. Plaintiff's shift was from 11 p.m. to 6:30 a.m. At the hearing on his application, plaintiff testified that his job on the date inquestion "was to do premise checks, check buildings in our industrial park, patrol the parking lots ofbusinesses that are open, the downtown area, and then later on in the night head over to theresidential area." The assignment involved riding on a variety of terrain--up on curbs, through grass,and behind buildings. Additionally, plaintiff carried approximately 20 pounds of gear on his personand another 5 to10 pounds in a police bag attached to the back of the bicycle. As a member of thebicycle patrol unit, plaintiff had performed such duties as making drug arrests, conducting trafficstops, and issuing both parking tickets and tickets for moving violations. Plaintiff also testified thatduring bike patrol training he was taught to stay on his bicycle as much as possible because thebicycle gave him a mechanical advantage over people on foot.

At about 2 a.m. on June 17, 2000, while pedaling his bicycle, plaintiff experienced significantpain in his right knee and noticed swelling. He had not fallen or had any other sort of accident. Plaintiff immediately sought treatment and was ultimately diagnosed as suffering from, inter alia, atear in the medial meniscus of his right knee. Plaintiff underwent several surgical procedures, but hiscondition restricted his ability to perform various physical activities, such as running, kneeling, andcrawling. Plaintiff had no prior history of knee problems.

At the Board's request, plaintiff was examined by two physicians, Dr. David M. Zoellick andDr. Robert D. McMillan, whose reports were admitted into evidence, along with the reports of otherphysicians who treated or examined plaintiff. Dr. Zoellick indicated in his report that it was hisimpression that plaintiff was injured at work in June 2000. Dr. McMillan's report states, in pertinentpart, as follows:

"As to the proximal [sic] proximate cause for the disability, it is unclear to me whetherthere was any discreet [sic] injury or whether this was a cumulative stress injury that may haveoccurred relating to his police work. [Plaintiff] denies significant athletic activity prior to theonset of his disability, and it seems that it was timed to his work, and was well documentedas such as outlined in the letter from [plaintiff's attorney].

My speculation as to the evolution of [plaintiff's] problem is that he started with a torncartilage that failed to improve probably because of the mild varus alignment (bowleg) thathe has naturally. This puts more weight on the inner aspect of the knee."

Dr. McMillan also observed that records from plaintiff's third and fourth operations indicatedthe presence of an abnormality that had not been mentioned in earlier medical records. Dr. McMillannoted in his report:

"Not having seen initial MRIs or x-rays, I cannot date this abnormality, but it does point to the possibility existing of a pre-existing condition, were this present on his initial work up. This may have contributed to the likelihood of abnormality evolving with his police work.

Nonetheless, it is clear that this man had an active and full physical life prior to theimmediate onset of his symptoms and as such, it seems that the police activity certainly wasthe proximate cause for his abnormality."

In its written decision, the Board found that plaintiff was disabled, but that he had not beeninjured in the performance of an act of duty. The Board concluded that the manner in which plaintiffwas pedaling his bicycle when his knee began to hurt did not involve any special risk not shared bycivilians. The Board also noted Dr. McMillan's view that plaintiff's condition evolved from a torncartilage that failed to improve because of plaintiff's mild varus alignment. Accordingly, the Boardawarded plaintiff nonduty benefits. The trial court affirmed the Board's decision, and this appealfollowed.

The findings and conclusions of an administrative agency on questions of fact are deemedprima facie true and correct and will not be disturbed on review unless they are against the manifestweight of the evidence, meaning that the opposite conclusion is clearly evident. Trettenero v. PolicePension Fund, 333 Ill. App. 3d 792, 801 (2002). We review the decision of the agency, not thejudgment of the trial court. Du Page County Board of Review v. Department of Revenue, 339 Ill.App. 3d 230, 235 (2003). Determinations regarding questions of law are reviewed de novo. Whitev. City of Aurora, 323 Ill. App. 3d 733, 735 (2001). In White, because the facts were uncontrovertedand the Board of Trustees of the City of Aurora was charged only with interpreting the meaning ofthe term "act of duty" found in section 3--114.1 of the Illinois Pension Code (Code) (40 ILCS 5/3--114.1 (West 1998)), we decided that case under a de novo standard of review. White, 323 Ill. App.3d at 735. Likewise, in the instant case, the facts are undisputed and the only issue before the Boardwas the meaning of "act of duty." Accordingly, under White, we review the Board's decision denovo.

At the time plaintiff became disabled, section 3--114.1 of the Code provided, in pertinent part:

"If a police officer as the result of sickness, accident or injury incurred in or resultingfrom the performance of an act of duty, is found to be physically or mentally disabled forservice in the police department, so as to render necessary his or her suspension or retirementfrom the police service, the police officer shall be entitled to a disability retirement pensionof 65% of the salary attached to the rank on the police force held by the officer at the dateof suspension of duty or retirement. A police officer shall be considered 'on duty', while onany assignment approved by the chief of the police department of the municipality he or sheserves, whether the assignment is within or outside the municipality." 40 ILCS 5/3--114.1(West 1998).

The performance of an act of duty need not be the sole cause of the disability, because, as this courthas held, "section 3--114.1 does not bar the award of a line-of-duty disability pension based upon theaggravation of a preexisting physical condition." Olson v. City of Wheaton Police Pension Board,153 Ill. App. 3d 595, 598 (1987); see also Kellan v. Board of Trustees of the Firemen's Pension Fund,194 Ill. App. 3d 573, 582 (1990). Under section 3--114.2 of the Code (40 ILCS 5/3--114.2 (West1998)), a disabled officer is entitled to a pension of 50% of the salary attached to the officer's rankif the disability is the result of any cause other than the performance of an act of duty.

For purposes of these provisions, the definition of "act of duty" set forth in section 5--113 ofthe Code (40 ILCS 5/5--113 (West 1998)) applies. See Robbins v. Board of Trustees of theCarbondale Police Pension Fund, 177 Ill. 2d 533, 540-41 (1997). As pertinent here, section 5--113defines "act of duty" as "[a]ny act of police duty inherently involving special risk, not ordinarilyassumed by a citizen in ordinary walks of life, imposed on a policeman by the statutes of this Stateor by the ordinances or police regulations of the city in which this Article is in effect or by a specialassignment." 40 ILCS 5/5--113 (West 1998).

Our supreme court has expressly rejected the notion that the term "special risk" encompassesonly inherently dangerous activities. Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 114 Ill. 2d 518, 521 (1986). Johnson noted that officers discharging their duties toprotect citizens perform many tasks, such as driving automobiles, climbing stairs, and even crossingstreets, that are similar to those involved in civilian occupations. Johnson, 114 Ill. 2d at 521-22. Johnson teaches that in determining whether an officer is entitled to a line-of-duty benefit, "[t]he cruxis the capacity in which the police officer is acting" rather than the precise mechanism of injury. Johnson, 114 Ill. 2d at 522. As such, an officer performing duties involving special risks will beentitled to line-of-duty benefits even if the immediate cause of injury is an act involving only anordinary risk.

In Johnson, a police officer assigned to direct traffic was summoned by a citizen requestingassistance regarding a traffic accident. While crossing the street to respond, the officer slipped andsuffered a disabling injury. The Johnson court rejected the argument that the officer was not entitled to line-of-duty benefits because crossing the street did not involve any special risk:

"The provisions of [the Code] conferring the right to duty-disability benefits do not require that an officer be injured by an act of duty. Rather, the duty disability is awarded when anofficer is 'disabled *** as the result of injury incurred *** in the performance of an act ofduty.' (Emphasis added.) [Citation.] In the plaintiff's case, the act of duty was the act ofresponding to the call of a citizen for assistance. In performing that act, he was injured.

The defendant's interpretation envisions a police officer involved in a gun battle, ahigh-speed car chase, or some other obviously dangerous situation in order to qualify forduty-disability benefits. This is an overly restrictive and unrealistic interpretation. If thiscourt were to adopt the defendant's narrow reading *** it could discourage police officersfrom the dedicated and enthusiastic performance of their duties ***." Johnson, 114 Ill. 2dat 522-23.

Similarly, in Wagner v. Board of Trustees of the Police Pension Fund, 208 Ill. App. 3d 25(1991), an injury that occurred when a rotted plank on a porch gave way was held to be duty-related,where the officer was trying to serve a notice to appear at the time his leg fell though the rotted plank. The court noted that "[w]hile the act of walking across a porch is hardly unique to police officers,serving notices to appear generally is." Wagner, 208 Ill. App. 3d at 29.

On the other hand, a line-of-duty benefit is not available if the disabling condition is job-related stress associated with the general nature of police work or with circumstances such asinterpersonal conflicts and concern about job performance, which are common in civilian workplaces. See, e.g., Robbins, 177 Ill. 2d at 542. Nor is a line-of-duty benefit available if the officer isperforming a function that civilians commonly perform. Thus, an officer who became disabled whena chair rolled out from under him as he was filling out a police report at his desk was not entitled toa line-of-duty pension. Morgan v. Retirement Board of the Policemen's Annuity & Benefit Fund, 172Ill. App. 3d 273, 276-77 (1988).

In White, an officer assigned to patrol duties slipped and suffered a disabling injury when heexited his squad car to issue a parking ticket. A divided panel of this court held that the officer wasnot entitled to line-of-duty benefits. The majority compared an officer issuing a parking ticket to acivilian placing a notice or flyer on a windshield, and also noted that Aurora does, in fact, employcivilians to enforce traffic regulations. The majority concluded that Morgan rather than Johnson wascontrolling:

"Unlike the case at bar, the police officer in Johnson was performing an act that ordinarycitizens are not obligated to perform; he was responding to a citizen in need of assistance. This is an 'act of police duty inherently involving special risk' because, 'unlike an ordinarycitizen, the policeman has no option as to whether to respond' (emphasis omitted) (Johnson,114 Ill. 2d at 522). Unlike the officer in Johnson, in this case White exited his car at his owndiscretion. White chose, at his own discretion, where and when to stop his vehicle and howand when to exit it. It is not the mundane nature of White's act that renders it ineligible forline of duty benefits but the fact that it did not involve any special risk not ordinarily assumedby ordinary citizens. Thus, White's actions were more like those of an ordinary citizen andless like those of the officer in Johnson who had to respond to a citizen's need for assistancewhenever and wherever he was called. *** We believe that writing a parking ticket andplacing it on a windshield without the driver being present is more like the clerical act at issuein Morgan than the responsive police action at issue in Johnson. Further, unlike the officerin Johnson, White in this case was performing an act performed by nonpolice officers, namely,placing a traffic citation on the windshield of a vehicle." White, 323 Ill. App. 3d at 737.

The injury in the case before us is unlike those in the Johnson, Morgan, Wagner, and White,in that it was not the result of any specific, identifiable, physical trauma. Rather, the injury may havedeveloped over the course of time. In his report, Dr. McMillan suggested that plaintiff may havesuffered from a cumulative stress injury evolving from a cartilage tear that failed to improve becauseof a natural misalignment of the knee. In its written decision, the Board found that Dr. McMillan'stheory of the injury was "relevant." We take this to mean that the Board accepted Dr. McMillan'sentire report.

In its appellate brief, the Board raises the issue of causation. The Board's brief states, "Dr.Robert McMillan[] indicated in his medical report that it is unclear whether Alm suffered a discreet[sic] injury or whether his knee condition evolved over a period of time because of the naturalalignment of his knees." The Board misapprehends Dr. McMillan's report. Although Dr. McMillanbelieved that the disability may have evolved from a preexisting condition, he also emphasized "thatplaintiff had an active and full physical life prior to the immediate onset of his symptoms and as such,it seems that the police activity certainly was the proximate cause for his abnormality." (Emphasisadded.) Thus, Dr. McMillan's report clearly indicates that even if plaintiff's disability could be tracedto a preexisting condition, the performance of plaintiff's bicycle patrol duties aggravated the conditionto the point that it was disabling. As noted, line-of-duty benefits are available when the performanceof an act of duty aggravates a preexisting injury. Moreover, the Board's decision notes that thereports of Dr. Zoellick and plaintiff's treating physician, Dr. Eugene P. Lopez, state that plaintiff wasdisabled as a result of his work as a police officer. The only police work referenced by the Board'sdecision is plaintiff's job as a bicycle patrol officer.

Plaintiff established that he incurred a disabling injury in the course of pedaling his bicycle.The real question, therefore, is whether pedaling the bicycle was an act of duty. Mindful of theprinciples discussed above, we conclude that it was. While on patrol, plaintiff faced risks notordinarily 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 patrolduties. Plaintiff was also carrying a significant amount of additional weight. Under these conditions,risks include falls and collisions as well as dangerous encounters with unsavory elements of society. This particular duty has no clear counterpart in civilian life. Therefore, we find that the bicycle patrol performed by plaintiff involved special risk. Consequently, he was performing in a capacity thatamounted to an act of duty such that he was entitled to line of duty benefits.

The Board misses the point when it argues that plaintiff's act was simply that of riding abicycle. The characterization might be apt if one focused narrowly on plaintiff's precise physical actat the moment of the injury. But in Johnson, it could just as easily have been said that the officer'sact was simply walking across the street. As noted, however, Johnson makes clear that the properfocus is on the capacity in which the officer is acting, not the precise act leading to injury. Johnson,114 Ill. 2d at 522. As in Johnson, plaintiff was acting in a capacity that involved special risks.

In its written decision, the Board found it significant that plaintiff was not responding to a callfor assistance but rather was "riding at his own pace and discretion, choosing what route to take andwhen and where to stop." It is true that both Johnson and White placed some emphasis on the levelof discretion involved in the performance of a particular duty. Johnson noted that, unlike a privatecitizen, the injured officer was not at liberty to ignore a citizen's request for assistance. In contrast,in White, the majority emphasized that the officer had discretion in deciding when, where, and howto stop and exit his vehicle. However, we believe that both the Board and the court in Whitemisapprehended the discretion that our supreme court was referring to in Johnson. The Johnsoncourt explained that the officer did not have discretion with regard to whether or not he would helpthe motorist. Johnson, 114 Ill. 2d at 522. This supported the court's conclusion that the actionsperformed by the officer were not those of an ordinary citizen because "unlike an ordinary citizen,the policeman has no option as to whether to respond; it is his duty to respond regardless of thehazard ultimately encountered." (Emphasis in original.) Johnson, 114 Ill. 2d at 522. In short, theJohnson court discussed whether or not the officer had discretion to perform the act, not discretionwith respect to the manner in which the precise physical components of the act were performed. Whether an officer has discretion to perform an act is relevant to determine whether the capacity inwhich he is acting involves special risk and is, therefore, an act of duty. However, the discretioninvolved in performing specific physical activities is not relevant because such discretion does not bearupon the capacity in which the officer is acting.

Furthermore, we believe that the majority in White focused on the act performed instead ofthe capacity in which the officer was acting. The court in White focused on the manner in which theofficer acted in stopping and exiting his vehicle and the discretion involved in performing these acts. However, we believe that under Johnson the proper focus should have been the capacity in which theofficer was acting, namely, issuing a parking citation. Just like the officer in Johnson, the officers inWhite and in this case were required to "have [their] attention and energies directed towards beingprepared to deal with any eventuality." Johnson, 114 Ill. 2d at 522. Thus, to the extent that Whitefocuses on the relevance of an officer's precise physical activities and the discretion involved inperforming them, we find its analysis to be at odds with the teachings of Johnson and we reject it.

For the foregoing reasons, the judgment of the circuit court of Lake County affirming theBoard's denial of line-of-duty benefits is reversed.

Reversed.

BYRNE, J., concurs

BOWMAN, J., dissenting:

I respectfully dissent. In my view, routine police bicycle patrol, without more, does notqualify as a special risk that would entitle plaintiff to line-of-duty disability benefits. I also disagreewith the majority's rejection of this court's previous decision in White v. City of Aurora, 323 Ill. App.3d 733 (2001).

As our supreme court stated in Johnson v. Retirement Board of the Policemen's Annuity &Benefit Fund, 114 Ill. 2d 518, 522 (1986), when determining whether a police officer's activityinvolves a special risk not ordinarily assumed by a citizen in the ordinary walks of life, "[t]he crux isthe capacity in which the police officer is acting." The majority never squarely addresses the capacityin which plaintiff was acting when he incurred his injury. Instead, it relies on general risks associatedwith bicycle riding and possible risks that plaintiff did not actually encounter at the time he wasinjured. In my view, none of the risks that the majority identifies, whether real or imagined, elevateplaintiff's activities at the time of his injury to the level of a special risk.

The undisputed facts of this case demonstrate that, at the time of his injury, plaintiffencountered only general risks attendant to riding a bicycle. Contrary to the majority, I am of theopinion that civilian bicyclists regularly deal with varied terrain, sometimes at night, while at the sametime observing their surroundings. Hence, while I am not minimizing the importance of plaintiff'swork, his actions at the time he sustained his injury did not involve a special risk that entitled him toline-of-duty disability.

Additionally, there is no support in the case law for the majority's reliance on hypotheticaldangers such as falls, collisions, and encounters with "unsavory" individuals, as a basis for finding aspecial risk. Rather, as in Johnson, the focus should be the actual circumstances surroundingplaintiff's injury. See Johnson, 114 Ill. 2d at 522. The majority ignores the actual circumstances ofthis case, contrary to Johnson, and enlarges the scope of an "act of duty" to include any activity thatmight potentially involve a special risk. One can easily envision scenarios under which virtually anyaspect of a police officer's duties could involve a special risk. Thus, under the majority's analysis,officers will be entitled to line-of-duty benefits every time they, while on duty, are injured while ridinga bicycle, walking on a sidewalk, or riding in a car, regardless of the capacity in which they are actingat the time of the injury. Just as the legislature did not intend for the term "special risk" to includeonly inherently dangerous activities (see Johnson, 114 Ill. 2d at 521-22), I do not believe that itintended for "special risk" to include activities that might carry risk under hypothetical circumstances. That is why, in order to prevent the definitions of "act of duty" and "special risk" from becomingmeaningless, we must look at what actually happened instead of what could have happened. Therewas nothing about the actual circumstances of plaintiff's injury that would elevate his activities to an"act of duty." Even though he was injured while on duty and assigned to the bicycle patrol, he wasnot acting in a capacity different from that of any civilian bicyclist.

The majority relies on Johnson in reversing the trial court. Johnson does not support themajority's position for the reasons stated above and, also, because it is factually distinguishable fromthe case at bar. The plaintiff in Johnson was injured when he fell while crossing the street to assista citizen who asked for help. Johnson, 114 Ill. 2d at 520. The court held that Johnson's act of duty"was the act of responding to the call of a citizen for assistance." Johnson, 114 Ill. 2d at 522. Thefacts that Johnson was called upon to assist a citizen and that he had no option but to respond werethe bases of the court's determination that the plaintiff's actions constituted an "act of duty." Johnson,114 Ill. 2d at 522. It is undisputed that plaintiff in the case at bar was not responding to any requestfor assistance, nor was he responding to any other situation that required his intervention; he wassimply riding his bicycle while on patrol. Thus, the majority's attempts to liken his activities to thoseof the plaintiff in Johnson are not persuasive.

Last, I disagree with the majority that this court's decision in White is at odds with Johnson. The majority criticizes White for placing undue emphasis on the precise activities the officer wasperforming and his discretion in performing them. The majority acknowledges that consideration ofan officer's discretion is appropriate, but believes that White improperly focused on the officer'sdiscretion in performing specific physical actions rather than on his discretion in performing the actof issuing a parking citation. The majority's reasons for refuting White are unpersuasive. First,police officers generally have discretion when deciding whether to issue a citation. Thus, the analysisin White would not have been any different if the court had addressed the officer's discretion inissuing a citation instead of his discretion in exiting his vehicle. Moreover, the officer's exercise ofdiscretion in exiting his vehicle was not the basis of our decision in White. White relied on the factthat the activity the officer was performing when he was injured, placing a citation on a carwindshield, is one that civilians routinely perform. White, 323 Ill. App. 3d at 736. We addressed theofficer's discretion only to distinguish Johnson, upon which the officer had relied. See White, 323Ill. App. 3d at 737. Accordingly, the majority's criticism of White is unfounded.

For the foregoing reasons, I would affirm the denial of line-of-duty benefits..