{ "id": 5732223, "name": "KERRY A. DEMSKI, Petitioner-Appellee, v. MUNDELEIN POLICE PENSION BOARD et al., Respondents-Appellants", "name_abbreviation": "Demski v. Mundelein Police Pension Board", "decision_date": "2005-06-28", "docket_number": "No. 2-04-0990", "first_page": "499", "last_page": "505", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 499" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "153 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738801 ], "year": 1992, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0076-01" ] }, { "cite": "348 Ill. App. 3d 823", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4022476 ], "year": 2004, "pin_cites": [ { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0823-01" ] }, { "cite": "348 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4023038 ], "year": 2004, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0554-01" ] }, { "cite": "323 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171618 ], "year": 2001, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0526-01" ] }, { "cite": "114 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542355 ], "year": 1986, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0518-01" ] }, { "cite": "3 Ill. App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2837146 ], "weight": 5, "year": 1971, "pin_cites": [ { "page": "697" }, { "page": "698" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0696-01" ] }, { "cite": "232 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499048 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0517-01" ] }, { "cite": "293 Ill. App. 3d 1070", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847510 ], "year": 1997, "pin_cites": [ { "page": "1075" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/1070-01" ] }, { "cite": "346 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832339 ], "year": 2004, "pin_cites": [ { "page": "1042" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/1034-01" ] } ], "analysis": { "cardinality": 642, "char_count": 14204, "ocr_confidence": 0.77, "pagerank": { "raw": 8.356606712106705e-08, "percentile": 0.4813178297267524 }, "sha256": "534dca158c21a2692c3341db561b957f31a7b39b6870b1bf11b01681d7d3d08a", "simhash": "1:41ff962e2b620d60", "word_count": 2345 }, "last_updated": "2023-07-14T22:37:08.387494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KERRY A. DEMSKI, Petitioner-Appellee, v. MUNDELEIN POLICE PENSION BOARD et al., Respondents-Appellants." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nThe Mundelein Police Pension Board (Board), the Village of Mundelein (Village), the Mundelein police department (department), Raymond J. Rose, chief of the Mundelein police department (Chief Rose), James A. Keeney, Wallace Frasier, and Nick Poulos appeal the trial court\u2019s order reversing the Board\u2019s denial of Officer Kerry Demski\u2019s line-of-duty disability pension application. We reverse.\nThe following facts are taken from the record. On October 6, 1987, Demski became a member of the Mundelein police department. On October 27, 2002, Demski claimed she injured her back while performing sit-ups during a routine physical fitness agility examination. The following day Demski worked at a Red Ribbon event with two other officers. Two days later, Demski called in to the department, stating that she was unable to work due to the back pain. Demski has not returned to her duties since the alleged injury.\nDemski applied for workers\u2019 compensation benefits for her injury. On August 13, 2003, a hearing was conducted before the Illinois Industrial Commission (IIC) on Demski\u2019s application for workers\u2019 compensation benefits. After Demski and the Village presented evidence, the IIC arbitrator ruled that Demski was entitled to workers\u2019 compensation benefits and found \u201ca causal connection between the agility test of October 26, 2002, and [Demski\u2019s] subsequent condition of ill-being.\u201d\nDemski also filed an application for a line-of-duty pension. Hearings on the application were held in December 2003 and January 2004. The Village\u2019s petition for leave to intervene in the proceedings was granted. Demski filed a petition seeking to invoke the doctrine of collateral estoppel, contending that the IIC\u2019s finding of causation was binding on the Board proceedings, but the Board denied Demski\u2019s petition.\nDuring the hearings, Demski testified that she injured her back in 1993 when she lifted a box of D.A.R.E. workbooks out of her car. She had surgery on her back in 1994 and returned to work full-time. She injured her back again in 1999 after she lifted D.A.R.E. workbooks, but she returned to work after six months. In February 2001, she received a general order from the chief of police regarding physical fitness testing. Demski believed that if she did not meet the standards set forth in the order, her job would be in jeopardy. Demski stated that she took the agility test on October 26, 2002. During the sit-up portion of the physical fitness agility test she injured her back. As she performed a sit-up, she felt a pull across her lower back. She did not say anything to the examiners because she did not want to \u201ccome across as a weak officer.\u201d She continued that part of the exam with discomfort in her lower back. Demski knew that she could discontinue the test but chose to continue. Demski stated that she was unable to pass the run portion of the test.\nDemski testified that in both February and October 2001 she was unable to successfully complete the agility testing but suffered no disciplinary consequences. Further, none of her superiors had ever spoken with her about the ramifications of failing the agility test. Demski knew of no one who had been dismissed for falling the agility test. However, she knew the union was discussing a proposal to sanction officers who failed to adequately perform the test.\nSergeant John Monahan testified that he administered and observed Demski\u2019s agility test on the date in question and that she did not appear to have any problems with the test and did not complain of pain during the test.\nCommander Michael Richards testified that the agility test was required of all officers. However, at the time of Demski\u2019s alleged injury, no labor agreement was in effect that would have resulted in disciplinary action for failure to complete the test. In fact, several other officers had failed the test and had suffered no consequences. The general order in effect in 2001 required an officer to participate in the agility assessment unless the officer was not medically able to do so. In that case, the officer was required to try to complete the agility test again in six months, until the officer successfully completed the agility test. There were no disciplinary consequences for failure to complete the test. However, in 2003, after Demski\u2019s alleged injury, a labor union contract was enacted, providing for consequences if an officer failed to adequately perform the agility test. The consequences included progressive disciplinary measures including the loss of income.\nIn support of her petition, Demski filed three certificates of disability. The first certificate, submitted by Jay Levin, M.D., after examining Demski, indicated that Demski was disabled and that her disability was caused by the performance of an act of duty. The second certificate, submitted by David L. Spencer, M.D., after examining Demski, indicated that Demski was disabled and that her disability was caused by the performance of an act of duty. The third certificate, submitted by Thomas F. Gleason, M.D., after examining Demski, indicated that Demski was disabled and that her disability possibly was caused by the performance of an act of duty.\nThe Board denied Demski\u2019s line-of-duty pension application, finding that although she was disabled, her disability was not caused by the performance of an act of duty. The Board reasoned that the testimony did not support a finding that the injury occurred during the physical agility test and that, even if it had occurred at that time, the agility test is not an \u201cact of duty\u201d within the meaning of section 3 \u2014 114.1 of the Pension Code (40 ILCS 5/3 \u2014 114.1 (West 2002)), and as defined by section 5 \u2014 113 of the Pension Code (40 ILCS 5/5 \u2014 113 (West 2002)). The Board also found that the three certificates Demski filed in support of her petition were insufficient to establish a line-of-duty disability as required by section 5 \u2014 115 of the Pension Code. 40 ILCS 5/5 \u2014 115 (West 2002).\nDemski sought review from the trial court. The trial court granted relief on two bases. First, the trial court determined that the Board was bound by the arbitrator\u2019s finding that Demski\u2019s injury was caused while performing an act of duty. Second, the trial court held that the Board\u2019s finding was against the manifest weight of the evidence and that the physical agility test is an act of duty. Respondents filed this timely appeal.\nOn appeal, the Board argues that it was not bound by the IIC\u2019s previous finding of causation. In contrast, Demski argues that the Board was collaterally estopped from making its own finding regarding the cause of Demski\u2019s injury. We agree with the Board. The minimum requirements for the application of collateral estoppel are: (1) the issue decided in the prior adjudication is identical to the one presented in the suit in question; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication. In re J\u2019America B., 346 Ill. App. 3d 1034, 1042 (2004).\nIn this case, the first requirement has not been met. The issue decided in the workers\u2019 compensation case was not identical to the issue decided in the pension application hearing. The issue before the IIC was whether Demski\u2019s accident arose out of and in the course of her employment. In contrast, the issue before the Board was whether the accident occurred during an \u201cact of duty\u201d as defined by section 5 \u2014 113 of the Pension Code. 40 ILCS 5/5 \u2014 113 (West 2002) (defined in part as: \u201cAny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life\u201d). Since this latter issue was not litigated during the workers\u2019 compensation case, the Board was not collaterally estopped by the arbitrator\u2019s findings.\nFurther, in this case, the third requirement of privity between the parties has not been met. There is no evidence of any collaboration between the Village and the Board as to the workers\u2019 compensation case. Further, the fact that both the Village and the Board are public entities is not enough to establish that they are the same parties or that they are in privity for the purpose of collateral estoppel. See Rhoads v. Board of Trustees of the City of Calumet City Policemen\u2019s Pension Fund, 293 Ill. App. 3d 1070, 1075 (1997).\nDemski cites McCulla v. Industrial Comm\u2019n, 232 Ill. App. 3d 517 (1992), and Dempsey v. City of Harrisburg, 3 Ill. App. 3d 696 (1971), to support her argument that collateral estoppel applies in this case. However, these cases are distinguishable from the case at bar. In Mc-Culla the appellate court held that a fireman seeking workers\u2019 compensation was collaterally estopped by a prior firemen pension board\u2019s finding that the fireman\u2019s injury was not caused while performing an act of duty. In this case, the issue of whether Demski\u2019s injury was caused while performing an act of duty had never been litigated. Rather, the issue before the IIC was whether Demski\u2019s injury arose out of the course of her employment. Thus, McCulla is not controlling here.\nIn Dempsey, 3 Ill. App. 3d 696, the IIC found that a police chiefs fatal injuries arose out of and in the course of his employment. The police pension board then denied the police chiefs widow\u2019s petition for a line-of-duty pension, finding that the police chief \u201c \u2018did not lose his life in the performance of duty\u2019 \u201d as contemplated by the Workmen\u2019s Compensation Act. Dempsey, 3 Ill. App. 3d at 697. The appellate court held that the IIC\u2019s finding had res judicata effect on the pension board. However, in 1971, the issues presented in proceedings under the Workmen\u2019s Compensation Act and the police pension fund were much more similar than they are now. The former provided benefits for \u201c \u2018accidental injury arising out of and in the course of employment\u2019 the latter in the event \u201c \u2018a policeman loses his life in the performance of duty.\u2019 \u201d Dempsey, 3 Ill. App. 3d at 698. The legislature had not yet changed the latter statute to require an \u201cact of duty\u201d and had not yet defined \u201cact of duty.\u201d Thus, as Dempsey noted, \u201csuch differences [were] minuscule and not enough, by themselves, to reject application of res judicata.\u201d Dempsey, 3 Ill. App. 3d at 698. Now, however, a police officer is entitled to line-of-duty benefits only if she becomes injured while on duty and was performing an act involving a special risk not shared by an ordinary citizen. 40 ILCS 5/5 \u2014 113 (West 2002); Johnson v. Retirement Board of the Policemen\u2019s Annuity & Benefit Fund, 114 Ill. 2d 518, 522 (1986). Because the issues are now substantially different, Dempsey is not applicable to this case.\nAddressing the second basis, the Board argues that the trial court erred by reversing its denial of Demski\u2019s line-of-duty pension application, because its finding that Demski was not injured while performing the agility test is not against the manifest weight of the evidence. We agree with the Board.\nOn appeal, we review the decision of the administrative agency, not that of the trial court. Swoope v. Retirement Board of the Policemen\u2019s Annuity & Benefit Fund, 323 Ill. App. 3d 526, 529 (2001). An administrative agency\u2019s findings of fact are deemed prima facie true and correct and may be set aside only if they are against the manifest weight of the evidence. 735 ILCS 5/3 \u2014 110 (West 2000); Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 560 (2004). \u201cFactual findings are against the manifest weight of the evidence only where all reasonable and unbiased persons would agree it is clearly evident the administrative agency erred and should have reached the opposite conclusion.\u201d Caterpillar, Inc. v. Illinois Commerce Comm\u2019n, 348 Ill. App. 3d 823, 828 (2004). Thus, if the record contains any evidence to support the agency\u2019s decision, it should be affirmed. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).\nThe question before this court is whether the record contains any evidence to support the Board\u2019s finding that Demski was not injured while performing the agility test. A review of the record reveals sufficient evidence to support the Board\u2019s finding. Demski injured her back in 1993 and again in 1999, years before the alleged injury at issue. Sergeant John Monahan, who observed Demski as she took the test in 2002, testified that Demski failed to report any pain during the agility test and seemed to have no problems during the test. She failed to tell anyone that she had injured herself during the test. The day following the test Demski carried heavy objects. One of the three required certifying physicians reported that it was only possible that Demski\u2019s injury was caused by the agility test. Finally, all three of the certifying doctors noted that Demski had a long history of back problems and degenerative disc disease. While this evidence does not absolutely preclude causation, and there is evidence to support Dem-ski\u2019s position of causation, the record supports the Board\u2019s finding. Thus, the Board\u2019s finding that Demski\u2019s injury was not caused by her performance of the agility test is not against the manifest weight of the evidence.\nThe Board also argues that the trial court erred by finding that the physical agility test is an act of duty. However, we need not address this argument, because we have disposed of the appeal based upon the Board\u2019s proper decision regarding the cause of Demski\u2019s injury.\nThe judgment of the circuit court of Lake County is reversed.\nReversed.\nO\u2019MALLEY, EJ., and GROMETER, J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Jill D. Leka and Abigail C. Rogers, both of Seyfarth Shaw, L.L.P., of Chicago, for appellant Village of Mundelein.", "John H. Kelly and Ericka J. Thomas, both of Ottosen, Trevarthen, Britz, Kelly & Cooper, Ltd., of Wheaton, for other appellants.", "Joseph V. Roddy, of Law Offices of Joseph V. Roddy, of Chicago, for appellee." ], "corrections": "", "head_matter": "KERRY A. DEMSKI, Petitioner-Appellee, v. MUNDELEIN POLICE PENSION BOARD et al., Respondents-Appellants.\nSecond District\nNo. 2\u201404\u20140990\nOpinion filed June 28, 2005.\nRehearing denied July 28, 2005.\nJill D. Leka and Abigail C. Rogers, both of Seyfarth Shaw, L.L.P., of Chicago, for appellant Village of Mundelein.\nJohn H. Kelly and Ericka J. Thomas, both of Ottosen, Trevarthen, Britz, Kelly & Cooper, Ltd., of Wheaton, for other appellants.\nJoseph V. Roddy, of Law Offices of Joseph V. Roddy, of Chicago, for appellee." }, "file_name": "0499-01", "first_page_order": 517, "last_page_order": 523 }