{ "id": 5783382, "name": "FRANK Di FOGGIO, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE COUNTY EMPLOYEES' ANNUITY AND BENEFIT FUND OF COOK COUNTY AND ex officio FOR THE FOREST PRESERVE DISTRICT EMPLOYEES' ANNUITY AND BENEFIT FUND et al., Defendants-Appellees", "name_abbreviation": "Di Foggio v. Retirement Board", "decision_date": "1992-09-30", "docket_number": "No. 1\u201491\u20143215", "first_page": "361", "last_page": "367", "citations": [ { "type": "official", "cite": "236 Ill. App. 3d 361" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "324 Ill. 268", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2442787 ], "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill/324/0268-01" ] }, { "cite": "295 Ill. 429", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5067803 ], "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill/295/0429-01" ] }, { "cite": "31 Ill. 2d 330", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2835054 ], "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0330-01" ] }, { "cite": "116 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518523 ], "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0471-01" ] }, { "cite": "172 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5085925 ], "year": 1983, "pin_cites": [ { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0931-01" ] }, { "cite": "182 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620802 ], "weight": 2, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0494-01" ] } ], "analysis": { "cardinality": 519, "char_count": 14194, "ocr_confidence": 0.783, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.37624838359302026 }, "sha256": "eac224f2949e5b2fdcd65dcf40417ccafc0b733c547b79893e3af845cf06e7d5", "simhash": "1:192a5cd52ace057f", "word_count": 2196 }, "last_updated": "2023-07-14T15:50:05.842880+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANK Di FOGGIO, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE COUNTY EMPLOYEES\u2019 ANNUITY AND BENEFIT FUND OF COOK COUNTY AND ex officio FOR THE FOREST PRESERVE DISTRICT EMPLOYEES\u2019 ANNUITY AND BENEFIT FUND et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nAfter plaintiff, Frank Di Foggio, received workers\u2019 compensation total temporary disability benefits and a settlement for workers\u2019 compensation permanent partial disability, he sought duty disability benefits from the Retirement Board of the County Employees\u2019 Annuity and Benefit Fund of Cook County in accordance with the Illinois Pension Code. (Ill. Rev. Stat. 1983, ch. 1081/2, par. 9 \u2014 101 et seq.) After the retirement board ruled that he was not entitled to such benefits, the trial court affirmed. On appeal, plaintiff asserts that the retirement board denied him his workers\u2019 compensation permanent partial disability award by offsetting the Pension Code\u2019s duty disability amount against his workers\u2019 compensation permanent partial disability award. We reverse.\nOn August 13, 1984, while employed as a plumber by Cook County Hospital, plaintiff injured his right shoulder. As a result, he underwent surgery and extensive therapy and was temporarily totally disabled for 1663/7 weeks, from August 14, 1984, until October 26, 1987. In accordance with section 8(b) of the Illinois Workers\u2019 Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)), plaintiff received a temporary total disability award from Cook County in the amount of 662/3 of his salary.\nOn March 23, 1989, the Illinois Industrial Commission approved a settlement between Cook County and plaintiff in accordance with section 8(e) of the Illinois Workers\u2019 Compensation Act, which provides:\n\u201cFor accidental injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such accidental injury, under subparagraph 1 of paragraph (b) of this Section, and shall receive in addition thereto compensation for a further period for the specific loss mentioned.\u201d Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e).\nBased on a 65% loss of use of his right arm, plaintiff received $48,848.92.\nAfter the settlement, plaintiff sought duty disability benefits from Cook County in accordance with section 9 \u2014 156 of the Pension Code (Ill. Rev. Stat. 1983, ch. 1081/2, par. 9 \u2014 156), which provides that duty disability benefits shall be 75% of the worker\u2019s salary at the time of the injury and shall be payable during any period of such disability for which he receives no salary. The period for which plaintiff was claiming duty disability benefits under the Pension Code was the 1663/t weeks during which he received no salary.\nThe retirement board determined that plaintiff was not entitled to duty disability because the Pension Code requires duty disability benefits to be offset against any workers\u2019 compensation benefits received. Since plaintiff received total workers\u2019 compensation benefits that exceeded the 75% obligation of the retirement fund, plaintiff was denied any duty disability benefits.\nAfter a hearing before the retirement board, the board affirmed the original decision. Plaintiff filed a complaint for administrative review in the circuit court. The trial court affirmed the retirement board\u2019s decision and plaintiff appealed.\nThe issue is whether the retirement board denied plaintiff his x:xrkers\u2019 compensation permanent partial disability award by offsetting the Pension Code\u2019s duty disability against his workers\u2019 compensation permanent partial disability award.\nPlaintiff asserts that the retirement board improperly combined his total temporary disability award and his permanent partial disability award, for a net effect that was higher than 75% of his salary. Plaintiff contends that allowing such an offset distorts the legislative intent of the Workers\u2019 Compensation Act and the Illinois Pension Code. Interpreting the Pension Code as assuring that an employee who is completely incapable of working will be entitled to 75% of his salary, plaintiff concludes that the pension fund should supplement the 662/s% of his salary from the workers\u2019 compensation award with 81/s% of his salary.\nPlaintiff argues that section 9 \u2014 159 allows an injured employee who is temporarily totally disabled to either go directly to the Pension Fund and receive 75% of his salary or to file a workers\u2019 compensation claim for 662/s% of his salary and then apply to the Pension Fund for additional benefits. While the employee is entitled to permanent partial disability benefits under the Workers\u2019 Compensation Act, he is not entitled to a comparable benefit under the Pension Fund.\nPlaintiff asserts that the language of section 9 \u2014 159 of the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 1081/2, par. 9 \u2014 159) is ambiguous because the legislature mixed terms of art relating to specific provisions of the Workers\u2019 Compensation Act with general terms. According to plaintiff, those ambiguous terms include \u201cspecific loss,\u201d \u201cdeath,\u201d and \u201cdisability.\u201d\nSince plaintiff concludes that section 9 \u2014 159\u2019s language is ambiguous, he looks to the legislative intent of both the Workers\u2019 Compensation Act and the Illinois Pension Code. He contends that those statutes were enacted to prevent double recovery from the same injury. Therefore, plaintiff maintains that the Pension Code\u2019s disability benefits are to be offset by the workers\u2019 compensation temporary total disability award, but coordinated with the workers\u2019 compensation permanent partial disability award.\nThe retirement board replies that section 9 \u2014 159\u2019s language unambiguously provides that plaintiff\u2019s duty disability benefits are to be offset by any amount paid under the Workers\u2019 Compensation Act, not just temporary total disability awards. In accordance with that language and the Pension Code\u2019s purpose of preventing double- recovery, the retirement board maintains that it has consistently interpreted section 9 \u2014 159 as meaning that any duty disability benefits are to be reduced by any workers\u2019 compensation benefits or payments.\nDefendant argues that the legislative intent of the Workers\u2019 Compensation Act is irrelevant to the issue before this court, which is whether the retirement board properly interpreted the language of section 9 \u2014 159 of the Pension Code. Ill. Rev. Stat. 1983, ch. 1081/2, par. 9 \u2014 159.\nThe retirement board analogizes this case to 16 other retirement funds created by the Illinois legislature. In some of those funds, the legislature excepted permanent partial awards. For example, the reduction provision in section 7 \u2014 222 of the Illinois Municipal Retirement Fund specifically excludes an offset from \u201cfixed statutory payments for the loss of or the permanent and complete loss of the use of any bodily member.\u201d (Ill. Rev. Stat. 1987, ch. 1081/2, par. 7 \u2014 222.) The Firefighters\u2019 Pension Fund excludes from the offset provision any reduction for \u201cpermanent and partial loss of the use of any bodily member *** under the Workers\u2019 Compensation Act.\u201d (Ill. Rev. Stat. 1987, ch. 1081/2, par. 4 \u2014 114.2.) The State Universities Retirement System Fund only prohibits a reduction in the offset against \u201cfixed statutory payments for the loss of any bodily member, or the permanent and complete loss of use of 100% of any bodily member.\u201d Ill. Rev. Stat. 1987, ch. 1081/2, par. 15-153.1.\nIn other funds found in chapter 1081/2, the legislature did not exempt a permanent partial award from the offset provision. See the. Municipal Employees\u2019, Officers\u2019, and Officials\u2019 Annuity and Benefit Fund (Ill. Rev. Stat. 1987, ch. 1081/2, par. 8 \u2014 163), the Laborers\u2019 and Retirement Board Employees\u2019 Annuity and Benefit Fund (Ill. Rev. Stat. 1987, ch. 1081/2, par. 11 \u2014 158), the Park Employees\u2019 and Retirement Board Employees\u2019 Annuity and Benefit Fund (Ill. Rev. Stat. 1987, ch. IO8V2, par. 12 \u2014 141); and the State Employees\u2019 Retirement System of Illinois (SERS) (Ill. Rev. Stat. 1987, ch. 1081/2, par. 14\u2014 129). Under the SERS fund, the legislature also enacted a right of subrogation for the employer against judgment proceeds obtained from third parties. Ill. Rev. Stat. 1987, ch. 1081/2, par. 14 \u2014 129.\nDefendant argues that the statute\u2019s specific language indicates that the legislature was aware of plaintiff\u2019s situation and chose not to exempt permanent partial awards from the offset provision of the Pension Code. If the legislature had intended to provide an exception to the offset provision for permanent partial awards under the Workers\u2019 Compensation Act, defendant contends, it knew what language to use.\nThis is a case of first impression. Section 9 \u2014 159(c) of the Illinois Pension Code provides, in relevant part:\n\u201cIf an employee who shall be disabled *** receivejs] any compensation or payment from county for specific loss, disability or death under the Workers\u2019 Compensation Act or Workers\u2019 Occupational Diseases Act, the disability benefit or any annuity for him *** payable as the result of such specific loss, disability or death shall be reduced by any amount so received or recoverable. If the amount received as such compensation or payment exceeds such disability benefit or other annuity payable as the result of such specific loss, disability or death, no payment of disability benefit or other annuity shall be made until the accumulative amounts thereof equals the amount of such compensation or payment.\u201d Ill. Rev. Stat. 1983, ch. 1081/2, par. 9 \u2014 159(c).\nWe find that section 9 \u2014 159\u2019s language is ambiguous. It is unclear what the statute means by the terms \u201cspecific loss,\u201d \u201cdisability,\u201d or \u201cdeath.\u201d The statute does not provide that a duty disability benefit payable as a result of an injury shall be reduced by any payment from the county for that injury. If that were the case, the statute\u2019s language would be clearer. Instead, we are placed in the position of hypothesizing what the statute\u2019s language actually means.\nTherefore, this court must look beyond the statute\u2019s language to determine the legislative intent. In construing a statutory enactment, the primary purpose is to ascertain the legislature\u2019s intention, not only from the language which it has used, but also from the reason and necessity for the act, the evils sought to be remedied, and the objects and purposes sought to be obtained. (Gentry v. Illinois Municipal Retirement Fund (1989), 182 Ill. App. 3d 494, 496.) Since statutory provisions related to the same subject matter should be construed harmoniously wherever possible (Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 935; Doran v. Department of Labor (1983), 116 Ill. App. 3d 471, 475), we look at the Workers\u2019 Compensation. Act as well as at the Illinois Pension Code.\nThe Workers\u2019 Compensation Act provides that a temporary total disability award and a permanent partial disability award for the same injury are distinct and separate awards. Section 8(d)(2) states:\n\u201cIf, as a result of the accident, the employee sustains serious and permanent injuries *** he shall receive in addition to compensation for temporary total disability under paragraph (b) of this Section, compensation *** for that *** partial disability.\u201d Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2).\nCompensation for specific permanent partial injuries is payable to injured employees over and above that payable for temporary total disability. D.W. Voorhees v. Industrial Comm\u2019n (1964), 31 Ill. 2d 330, 332.\nThe Workers\u2019 Compensation Act creates four distinct categories that the legislature used in classifying benefits: temporary total disability, permanent total disability, temporary partial disability, and permanent partial disability. Temporary total disability is the temporary period immediately after the accident during which the injured employee is totally incapacitated from work. (Mount Olive Coal Co. v. Industrial Comm\u2019n (1920), 295 Ill. 429, 431.) In Illinois, an employee who is totally incapacitated from working is . awarded 662/3% of his salary. (Ill. Rev. Stat. 1983, ch. 48, par. 138.8.) Permanent partial disability is awarded when a work-related injury prevents an employee from pursuing his usual and customary employment. (Guest Coal Co. v. Industrial Comm\u2019n (1927), 324 Ill. 268, 275.) The award is based on the amount of loss or loss of use incurred, not on the employee\u2019s wages.\nIn harmonizing the two statutes together, we agree with both parties that their intent is to prevent double recovery for the same injury. Since there is no legislative history of section 9 \u2014 159, we agree with Gentry (182 Ill. App. 3d 494), which analyzed a similar pension code.\nWhen a county employee becomes temporarily totally disabled as a result of a work-related injury, he is entitled to 75% of his pay from the Retirement Board and 66%% of his pay under the Workers\u2019 Compensation Act. To prevent the employee from receiving double benefits, any Pension Code disability benefit is offset against any workers\u2019 compensation temporary total disability award received. The pension fund should supplement the employee with 8%% of his salary.\nIf the employee is permanently partially disabled, he is entitled to a separate and distinct permanent partial disability benefit under the Workers\u2019 Compensation Act, but there is no such benefit under the Pension Code. Since no double recovery would be possible, there is no need to offset the permanent partial disability benefits. Therefore, we conclude that the Pension Code\u2019s duty disability, which is related to temporary total disability, should not be offset against the workers\u2019 compensation permanent partial disability benefits.\nBased on the foregoing, the circuit court judgment is reversed and remanded to the trial court for further proceedings in accordance with this decision.\nReversed and remanded.\nGREIMAN, P.J., and RIZZI, J., concur.", "type": "majority", "author": "JUSTICE CERDA" } ], "attorneys": [ "George J. Cullen, of George J. Cullen & Associates, Ltd., of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Karen Covy, Patricia M. Shymanski, and Sophia Lopez, Assistant State\u2019s Attorneys, of counsel), for appellees." ], "corrections": "", "head_matter": "FRANK Di FOGGIO, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE COUNTY EMPLOYEES\u2019 ANNUITY AND BENEFIT FUND OF COOK COUNTY AND ex officio FOR THE FOREST PRESERVE DISTRICT EMPLOYEES\u2019 ANNUITY AND BENEFIT FUND et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201491\u20143215\nOpinion filed September 30, 1992.\nGeorge J. Cullen, of George J. Cullen & Associates, Ltd., of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Karen Covy, Patricia M. Shymanski, and Sophia Lopez, Assistant State\u2019s Attorneys, of counsel), for appellees." }, "file_name": "0361-01", "first_page_order": 381, "last_page_order": 387 }