{ "id": 159538, "name": "COLLEEN TONKOVIC, Plaintiff-Appellee, v. RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant", "name_abbreviation": "Tonkovic v. Retirement Board of Firemen's Annuity & Benefit Fund", "decision_date": "1996-07-25", "docket_number": "No. 1\u201495\u20142564", "first_page": "876", "last_page": "881", "citations": [ { "type": "official", "cite": "282 Ill. App. 3d 876" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "82 A.L.R.2d 1410", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "165 N.E.2d 340", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "24 Ill. App. 2d 461", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5208126 ], "year": 1960, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0461-01" ] }, { "cite": "563 N.E.2d 494", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "499-500" } ], "opinion_index": 0 }, { "cite": "138 Ill. 2d 487", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576785 ], "year": 1990, "pin_cites": [ { "page": "498-99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0487-01" ] }, { "cite": "421 N.E.2d 1065", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 1143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12147058 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "1147" }, { "page": "1148" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/1143-01" ] } ], "analysis": { "cardinality": 498, "char_count": 9646, "ocr_confidence": 0.766, "pagerank": { "raw": 9.815537193432909e-08, "percentile": 0.5331492299357994 }, "sha256": "b13fd842e8a4fab56657346f4c3762b053f6e40f0613ea64329d642dbe44621d", "simhash": "1:1c7748b08a7a4604", "word_count": 1542 }, "last_updated": "2023-07-14T22:18:31.167440+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COLLEEN TONKOVIC, Plaintiff-Appellee, v. RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nDefendant, the Retirement Board of the Firemen\u2019s Annuity and Benefit Fund of Chicago (Board), appeals from the circuit court\u2019s order reversing its decision to deny plaintiff, Colleen Tonkovic (Tonkovic), widow\u2019s duty death benefits pursuant to section 6 \u2014 140 of the Illinois Pension Code. 40 ILCS 5/1 \u2014 :101 et seq. (West 1994). We affirm.\nPlaintiff\u2019s decedent, Martin Tonkovic (decedent), was employed by the City of Chicago as a fire fighter on February 16, 1969. On April 9, 1980, while fighting a fire, decedent suffered a heart attack. He was examined by the Board\u2019s physician, Dr. George Motto. Dr. Motto asserted that decedent was without symptoms of heart disease prior to April 9, 1980, but that after that date decedent had documented arteriosclerotic heart disease as manifested by the heart attack. With knowledge of the heart disease and because of decedent\u2019s heart attack, Dr. Motto prescribed that decedent should not perform the duties associated with the position of a fire fighter. Furthermore, Dr. Motto found that decedent\u2019s condition fell within the parameters of section 6 \u2014 151 of the Illinois Pension Code, which provides that an active fireman who becomes disabled as the result of a specific injury resulting from an act or acts of duty is eligible for duty disability benefits. 40 ILCS 5/6 \u2014 151 (West 1994).\nAs a result of Dr. Motto\u2019s findings, the Board granted decedent duty disability. By statute, said disability benefits were to continue during the period of the disability until decedent reached the age of compulsory retirement. 40 ILCS 5/6 \u2014 151 (West 1994).\nOn April 30, 1994, decedent suffered another heart attack and died. The death certificate, signed by Dr. Martin Rubin, attributes decedent\u2019s demise to \"respiratory failure, due to or as a consequence of a ruptured aortic aneurysm, due to or as a consequence of artherosclerotic [sic] heart disease.\u201d No autopsy was performed.\nDecedent\u2019s widow, Tonkovie, applied to the Board for widow\u2019s duty death benefits pursuant to section 6 \u2014 140 of the Illinois Pension Code. 40 ILCS 5/6 \u2014 140 (West 1994). The Board conducted a hearing on the matter on August 17, 1994.\nAt the hearing, Tonkovie presented decedent\u2019s death certificate and various documents concerning his medical history. The Board\u2019s physician, Dr. Motto, testified that although decedent suffered a duty-related heart attack in 1980, the heart attack did not contribute to his demise in 1994. Instead, Dr. Motto testified that decedent died as a result of abdominal aortic aneurysm. Dr. Motto claimed a heart attack and an abdominal aneurysm are not connected, except that aneurysms and heart disease are caused by a similar process, that is, dissection or arteriosclerosis of the abdominal aorta. According to Dr. Motto, the recognized causes of arteriosclerosis are multifactorial: stress, high blood pressure, cholesterol, heredity, and smoking. He admitted, however, that long-term exposure to smoke, such as decedent\u2019s 11 years of being a fire fighter before self-contained breathing apparatus were utilized, may have caused the arteriosclerosis.\nRelying upon the testimony of Dr. Motto that decedent\u2019s 1980 heart attack did not contribute to his demise, the Board denied Tonkovic\u2019s request for widow\u2019s duty death benefits and instead granted her ordinary widow\u2019s benefits. Tonkovie filed a complaint for administrative review in the circuit court of Cook County.\nOn March 21, 1995, the circuit court conducted a hearing on Tonkovic\u2019s complaint. It found that the Board\u2019s decision was against the manifest weight of the evidence and entered an order reversing the decision of the Board. In so doing, the circuit court reasoned that because Dr. Motto admitted arteriosclerosis disease caused the aneurysm and that decedent had documented arteriosclerotic heart disease as manifested by the 1980 heart attack, there was no question that decedent died of arteriosclerosis. Furthermore, the circuit court found the Board ignored the fact that because decedent did not smoke, suffer from hypertension, and had no family history of arteriosclerosis, his greatest risk factor for arteriosclerotic heart disease was his employment as a fire fighter. The Board appealed the circuit court\u2019s order.\nA reviewing court may only set aside findings of an administrative agency\u2019s questions of fact if they are against the manifest weight of the evidence. Ernzen v. Board of Trustees of Batavia Firemen\u2019s Pension Fund, 96 Ill. App. 3d 1143, 1147, 421 N.E.2d 1065 (1981). A judgment will only be found as against the manifest weight of the evidence when it appears from the record that an opposite result is clearly evident. Ernzen, 96 Ill. App. 3d at 1148, 421 N.E.2d at 1068.\nSection 6 \u2014 140 of the Illinois Pension Code, dealing with widow\u2019s duty death benefits, provides in relevant part as follows:\n\"The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972, and it shall be payable to the widow until the fireman, had he lived, would have attained the age prescribed for compulsory retirement.\nUnless the performance of an act or acts of duty results directly in the death of the fireman, or prevents him from subsequently resuming active service in the fire department, the annuity herein provided shall not be paid ***.\u201d 40 ILCS 5/6 \u2014 140 (West 1994).\nOn appeal, the Board contends Tonkovic is not entitled to widow\u2019s duty death benefits because she failed to prove decedent\u2019s death resulted from \"an act or acts of duty.\u201d Moreover, the Board argues the circuit court ignored the applicable standard of review and improperly reweighed the evidence.\nFor Tonkovic to receive widow\u2019s duty death benefits, the Board argues that she has the burden of proving that decedent\u2019s death resulted from his performance of an act or acts of duty. The Board cites the testimony of its expert, Dr. Motto, that although smoke inhalation caused decedent\u2019s 1980 heart attack, that heart attack was not the direct cause of decedent\u2019s death 14 years later.\nThe Board\u2019s causation argument ignores the second clause of the statute. When construing a statute, we must first consider the plain language of the statute. In re Marriage of O\u2019Neill, 138 Ill. 2d 487, 498-99, 563 N.E.2d 494, 499-500 (1990). Here, the plain language of the second clause provides that a surviving spouse is eligible for duty death benefits if the decedent fire fighter\u2019s performance of an act or acts of duty prevented him from resuming active service until his or her death. Under this clause it is irrelevant to the question of eligibility for widow\u2019s duty death benefits whether decedent\u2019s 1980 heart attack resulted directly in his death 14 years later. Rather, the focus is whether the fire fighter is injured due to an act or acts of duty and then dies without having returned to active service.\nThe evidence is uncontroverted that decedent served as a fire fighter for 11 years prior to the fire department\u2019s introduction of self-contained breathing apparatus for use by fire fighters during fires. And, ironically, the Board\u2019s own physician, Dr. Motto, admitted long-term smoke inhalation contributed to decedent\u2019s arteriosclerotic heart disease. Indeed, it was Dr. Motto who initially cleared decedent to receive duty disability benefits, stating that decedent\u2019s 1980 heart attack was induced by smoke inhalation.\nHaving placed decedent on duty disability in 1980, the Board necessarily admits that decedent was injured due to an act or acts of duty. Decedent remained on duty disability, subject to recall to active duty upon a physician\u2019s certification of fitness, until his death in 1994. Accordingly, Tonkovic qualifies for widow\u2019s duty death benefits under the second clause of section 6 \u2014 140 of the Illinois Pension Code. 40 ILCS 5/6 \u2014 140 (West 1994).\nThe Board next argues the circuit court ignored the applicable standard of review and improperly reweighed the evidence when it considered the presence or absence of various risk factors for atherosclerotic heart disease in deciding that the Board had erred. As previously suggested, a review of the record indicates the Board failed to apply the second clause of section 6 \u2014 140 (40 ILCS 5/6 \u2014 140 (West 1994)), it having relied instead upon the first clause, which requires proof of direct causation, for its decision to deny Tonkovic her widow\u2019s duty death benefits. When the second clause is properly applied to the undisputed facts, it is clear that the Board\u2019s decision to deny Tonkovic her widow\u2019s duty death benefits was against the manifest weight of the evidence.\nWhere the decision of the lower court is correct, the reasons acted upon by it are immaterial. Murphy v. Lindahl, 24 Ill. App. 2d 461, 468, 165 N.E.2d 340, 343 (1960); 82 A.L.R.2d 1410 (1962). Thus, even assuming, without deciding, that the circuit court ignored the applicable standard of review and improperly reweighed the evidence, its decision was proper. Accordingly, we affirm.\nAffirmed.\nHOFFMAN, P.J., and CAHILL, J., concur.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" } ], "attorneys": [ "Fagel & Harber, of Chicago (Steven J. Teplinsky, Lawrence T. Krulewich, and Sara L. Thomas, of counsel), for appellant.", "Martin O. Holland, of Chicago, for appellee." ], "corrections": "", "head_matter": "COLLEEN TONKOVIC, Plaintiff-Appellee, v. RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201495\u20142564\nOpinion filed July 25, 1996.\nFagel & Harber, of Chicago (Steven J. Teplinsky, Lawrence T. Krulewich, and Sara L. Thomas, of counsel), for appellant.\nMartin O. Holland, of Chicago, for appellee." }, "file_name": "0876-01", "first_page_order": 894, "last_page_order": 899 }