MacDonald v. Bd. of Trustees

Annotate this Case
FOURTH DIVISION
January 15, 1998



No. 1-97-1102

JAMES ROBERT MACDONALD, )
)
Plaintiff-Appellee, ) APPEAL FROM THE
) CIRCUIT COURT OF
v. ) COOK COUNTY.
)
THE BOARD OF TRUSTEES OF THE PARK )
RIDGE POLICE PENSION FUND; NORMAN )
PATER, in his capacity as President )
of the Board of Trustees of the Park )
Ridge Police Pension Fund; DUANE )
MELLEMA, in his capacity as Secretary )
of the Board of Trustees of the Park )
Ridge Police Pension Fund; ROBERT )
KRISTIE, in his capacity as Vice )
President of the Park Ridge Police )
Pension Fund; CARL F. BRAUWEILER, )
in his capacity as Trustee of Park ) HONORABLE
Ridge Police Pension Fund; and ) LESTER FOREMAN,
JOHN BARRETT, in his capacity as ) JUDGE PRESIDING.
Trustee of the Park Ridge Police )
Pension Fund, )
)
Defendants-Appellants. )

JUSTICE SOUTH delivered the opinion of the court:

Plaintiff's father was a retired police officer who
received a retirement pension from defendants, The Board of
Trustees of the Park Ridge Police Pension Fund (the Board).
After plaintiff's father died, plaintiff applied to the Board for
a survivor's disability pension, claiming that at the time of
plaintiff's father's death, plaintiff was a dependent of his
father due to a physical and/or mental disability. The Board
held hearings on plaintiff's application, after which plaintiff's
application was denied. Plaintiff appealed to the circuit court,
which reversed the Board's decision and awarded plaintiff a
survivor's disability pension. The Board appeals that decision.
Plaintiff is a child of retired Park Ridge police Lieutenant
James P. MacDonald, deceased as of December 16, 1991. At the
time of his death, retired Lieutenant MacDonald was fully vested
in the Park Ridge police pension fund and was receiving
retirement benefits in the amount of approximately $925 per
month. The spouse of retired Lieutenant MacDonald, Margaret
Lucille MacDonald, predeceased him on September 25, 1989.
Plaintiff made application for survivor's benefits by filing
a petition with the Board on May 21, 1996, pursuant to sections
3-112(a) and (b) of the Illinois Pension Code (40 ILCS 5/3-
112(a), (b) (West 1996)). He alleged that he was qualified as a
survivor within the meaning of the statute to receive the
retirement benefits of his deceased father in that he was a
dependent of his father due to a physical disability.
By agreement of the parties, arrangements were made for the
plaintiff to be examined by Michael Grear, M.D., a physician
chosen by defendant, and Bernard Stevens, M.D., a physician
chosen by plaintiff. Both doctors conducted a review of medical
records and performed a physical examination of plaintiff.
A hearing on plaintiff's application for survivor's benefits
was held on October 11, 1996, before a quorum of the Board. Both
Dr. Grear and Dr. Stevens provided testimony at the hearing.
On November 22, 1996, the Board rendered a written
administrative decision entitled "Finding and Decision," which
denied plaintiff's application for survivor's benefits. The
basis for the denial was that "the applicant has not proven to
the satisfaction of this Board by a preponderance of the evidence
that he is dependent to a degree that he is entitled to dependent
survivor benefits under the terms of either (a) or (b) of 40 ILCS
5/3-112."
Plaintiff filed his complaint under the Administrative
Review Law (735 ILCS 5/3-101 et seq. (West 1996)) within 35 days
of receipt of the final decision of the Board and a summons was
issued and served within said 35-day period. The court reversed
the decision of the Board denying plaintiff statutory survivor's
benefits and ordered that such benefits be retroactive to the
death of plaintiff's father.
The Board has timely filed the instant appeal and asks this
court to reverse the judgment of the circuit court and to affirm
its decision. Plaintiff asks this court to affirm the judgment
of the circuit court reversing the finding and decision of the
Board.
The Board argues that the medical testimony regarding
plaintiff's disability was conflicting and, as was its right, it
chose to credit that medical testimony which indicated that
plaintiff was not disabled. Plaintiff asserts that he has met
his burden of proving not only that he was disabled but that he
was a dependent of his father because of said disability at the
time of his father's death.
The findings and conclusions of the administrative agency on
questions of fact are held to be prima facie true and correct,
and such findings will be upheld on review unless they are
against the manifest weight of the evidence. Antonelli v. Board
of Trustees of the Hillside Police Pension Board, 287 Ill. App.
3d 348, 353, 678 N.E.2d 773, 776 (1997); Village of Winfield v.
Illinois State Labor Relations Board, 176 Ill. 2d 54, 678 N.E.2d 1041 (1997). In order to determine whether findings and
conclusions of an administrative agency are against the manifest
weight of the evidence, the court must conclude that all
reasonable and unbiased persons, acting within the limits
prescribed by the law and drawing all inferences in support of
the finding, would agree that the finding is erroneous and that
the opposite conclusion is clearly evident. Jagielnik v. Board
of Trustees of Police Pension Fund, 271 Ill. App. 3d 869, 875,
649 N.E.2d 527, 530 (1995). An administrative decision is not
contrary to the manifest weight of the evidence merely because an
opposite conclusion is reasonable or because the reviewing court
might have ruled differently. Antonelli, 287 Ill. App. 3d at
353, 678 N.E.2d at 776.
A finding on a question of law by an administrative agency
is not binding on a reviewing court. City of Freeport v.
Illinois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159-60 (1990). Statutory interpretation is a
question of law and an agency's interpretation is relevant, but
it is not binding on the courts. Branson v. Department of
Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961, 965 (1995). In
interpreting a statute, the court's objective is to ascertain and
give effect to the intent of the legislature, and the most
reliable indicator of legislative intent is the language of the
statute. Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237, 664 N.E.2d 61, 65 (1996). Statutory language must be
given its plain and ordinary meaning. Boaden, 171 Ill. 2d at
237, 664 N.E.2d at 65. Statutory language that is clear must be
interpreted according to its terms, without aids of construction.
Branson, 168 Ill. 2d at 254, 659 N.E.2d at 965. The construction
of a statute is an issue of law that is reviewed de novo on
appeal. Boaden, 171 Ill. 2d at 237, 664 N.E.2d at 65. The
decision of an administrative agency will be reversed if it is
legally erroneous. Jagielnik, 271 Ill. App. 3d at 875, 649 N.E.2d at 531. Reviewing courts may not rubber-stamp
administrative decisions that are inconsistent with statutory
mandates or that frustrate statutory policy. City of Freeport,
135 Ill. 2d at 516, 554 N.E.2d at 164. Provisions of a police
pension plan are to be construed liberally in favor of those to
be benefited. Iwanski v. Streamwood Police Pension Board, 232
Ill. App. 3d 180, 185, 596 N.E.2d 691, 695 (1992).
The statute whose construction is at issue, section 3-112
(40 ILCS 5/3-112 (West Supp. 1997)), provides in part:
"Pension to survivors. (a) Upon the death of a
police officer entitled to a pension under Section
3-111 [40 ILCS 5/3-111], the surviving spouse
shall be entitled to the pension to which the
police officer was then entitled. Upon the death
of the surviving spouse, or upon the remarriage of
the surviving spouse if that remarriage terminated
the surviving spouse's eligibility under Section
3-121 [40 ILCS 5/3-121], the police officer's
unmarried children who are under age 18 or who are
dependent because of physical or mental disability
shall be entitled to equal shares of such pension.
***
(b) Upon the death of a police officer while in
service, having at least 20 years of creditable
service, or upon the death of a police officer who
retired from service with at least 20 years of
creditable service, whether death occurs before ar
after attainment of age 50, the pension earned by
the police officer as of the date of death as
provided in Section 3-111 [40 ILCS 5/3-111] shall
be paid to the survivors in the sequence provided
in subsection (a) of this Section."

The statute does not place a duty upon an applicant for
survivor's benefits to prove that he is not the cause of his
disability. Therefore the argument of the Board will be
disregarded since there is no legal foundation for such an
interpretation of the statute.
Thus, the question is whether plaintiff was disabled and
dependent as required by section 3-112(a) in order to be eligible
for survivor's pension benefits. While section 3-112 contains
the terms "disability" and "dependent," it does not define these
terms. Plaintiff proposed that the Board accept a common
statutory definition of "disability" as the inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months. This
definition is not only incorporated into the Social Security
Administration laws (42 U.S.C.  423 (1994)), but in a number of
Illinois statutory plans. The term "dependent" is defined in
Illinois pension law as a survivor of a member who was receiving
from the member at the date of the member's death at least one-
half of the support for maintenance including board, lodging,
medical care and like living costs. 40 ILCS 5/14-128 (West Supp.
1997) (State Employees Retirement System of Illinois). Where the
terms of a statute are not defined by the legislature, courts
will assume that they were intended to have their ordinary and
popular understood meanings. In re Application of the County
Treasurer and ex officio County Collector of Cook County, 213
Ill. App. 3d 535, 539, 572 N.E.2d 1107, 1109 (1991).
Dr. Stevens testified on behalf of plaintiff. Dr. Stevens,
whose practice specializes in disability determinations for the
Social Security Administration, testified that he reviewed the
written medical history provided by plaintiff. Based upon the
records provided, plaintiff met the Social Security guidelines
for disability based upon an impairment of morbid obesity. After
conducting an independent physical examination of plaintiff, Dr.
Stevens concluded that he was totally disabled pursuant to the
Social Security regulations and guidelines. Plaintiff was 100 to
150 pounds above the Social Security guidelines and, in addition,
suffered from osteoarthritis and hypertension.
Dr. Grear was retained by the Board to examine plaintiff.
Dr. Grear, an orthopedic surgeon, testified that plaintiff should
not be found disabled under the Social Security guidelines. He
further testified that plaintiff had good mobility in his knees,
good ability to move around, no spinal pain, and mild arthritis
in his knees, which Dr. Grear found compatible with plaintiff's
age. However, in his written report to the Board, Dr. Grear
indicated that, "I feel that at this time he [plaintiff] is, in
fact, fully disabled." When confronted at the hearing with the
relevant Social Security guidelines concerning disability based
upon morbid obesity, Dr. Grear admitted that plaintiff would be
properly classified as disabled based upon his obesity and
hypertension.
Thus, with both Doctors Stevens and Grear admitting that
plaintiff was disabled, there was no conflict in the medical
testimony that the Board had to resolve. The medical findings
were the same. While Dr. Grear may believe that there is a job
for plaintiff, he does not base this upon his medical opinion,
but upon conjecture, which is not competent evidence.
Ultimately, in his written report and in his testimony, Dr. Grear
admitted that plaintiff was fully disabled.
As to whether plaintiff was a dependent child at the time of
his father's death, evidence was presented to establish that he
was. Records from the Internal Revenue Service were admitted
into evidence to show that plaintiff's father claimed plaintiff
as a dependent child for the tax year prior to his death. In
addition, plaintiff testified as to his actual dependency upon
his father, and this testimony was uncontroverted.
Based upon the foregoing, the decision of the Board was
against the manifest weight of the evidence since both doctors
testified that plaintiff should be classified as disabled, and
the uncontroverted evidence presented was that plaintiff was a
dependent of his father. There is no requirement in the statute
that plaintiff prove that he was not the cause of his disability
in order to qualify for survivor's pension benefits.
Affirmed.
CERDA, P.J., and McNAMARA, J., concur.




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