{ "id": 7327521, "name": "CAROL ROKOSIK, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee; ELLEN PRESTON, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Rokosik v. Retirement Board of Firemen's Annuity & Benefit Fund", "decision_date": "2007-06-01", "docket_number": "Nos. 1\u201405\u20141501, 1\u201405\u20141502 cons.", "first_page": "158", "last_page": "172", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 158" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "350 Ill. App. 75", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5105521 ], "year": 1953, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0075-01" ] }, { "cite": "298 Ill. 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5029502 ], "year": 1921, "pin_cites": [ { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ill/298/0066-01" ] }, { "cite": "204 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609703 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "320" }, { "page": "320" }, { "page": "320" }, { "page": "320" }, { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0314-01" ] }, { "cite": "357 Ill. App. 3d 749", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135214 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "768", "parenthetical": "following Bertucci" }, { "page": "764-65", "parenthetical": "whether Board properly construed and applied section 6 - 140 in concluding that widows were not entitled to duty death benefits presents a mixed question of law and fact subject to the clearly erroneous standard of review" }, { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0749-01" ] }, { "cite": "351 Ill. App. 3d 368", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083969 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "373-74" }, { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0368-01" ] } ], "analysis": { "cardinality": 991, "char_count": 36803, "ocr_confidence": 0.795, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18893437416621586 }, "sha256": "e8ac70c80d41a0a9ac2ea3970fd78dc18161230790735c8ebe67c14037d17eed", "simhash": "1:de67e2be0405c4d1", "word_count": 6032 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "O\u2019BRIEN, EJ., and GALLAGHER, J., concur." ], "parties": [ "CAROL ROKOSIK, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.\u2014ELLEN PRESTON, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE O\u2019MARA FROSSARD\ndelivered the opinion of the court:\nPlaintiffs Carol Rokosik and Ellen Preston each filed separate complaints for administrative review in the circuit court against defendant, the Retirement Board of the Firemen\u2019s Annuity and Benefit Fund of Chicago (Board). In their complaints, both plaintiffs challenged Board decisions granting them widow\u2019s non-duty-related annuity benefits pursuant to section 6 \u2014 141.1 of the Illinois Pension Code (Code or Pension Code) (40 ILCS 5/6 \u2014 141.1 (West 2004)), rather than the greater widow\u2019s duty-related annuity benefits pursuant to section 6 \u2014 140 of the Code (40 ILCS 5/6 \u2014 140 (West 2004)). In addition, Preston\u2019s complaint sought a writ of mandamus ordering the Board \u201cto notify all potential widows of their rights under the [Pension Code] and to conduct a hearing conforming to fair notice and due process.\u201d\nA section 6 \u2014 141.1 widow\u2019s non-duty-related annuity (\u201cnon-duty death benefit\u201d or \u201cnon-duty annuity\u201d) entitles a widow of a firefighter who was not retired and had at least IV2 years of creditable service at the time of his death to the greater of (1) \u201c30% of the salary attached to the rank of first class firefighter in the classified career service at the time of the fireman\u2019s death\u201d or (2) 50% of the retirement annuity for which her husband would have been eligible had he retired the day before his death. 40 ILCS 5/6 \u2014 141.1 (West 2004). A section 6 \u2014 140 widow\u2019s duty-related annuity (\u201cduty death benefit\u201d or \u201cduty annuity\u201d) entitles a widow to a benefit equal to 75% of her husband\u2019s salary. 40 ILCS 5/6 \u2014 140 (West 2004).\nOn September 10, 2003, the circuit court entered an order dismissing the count of Preston\u2019s complaint which sought a writ of mandamus. On April 22, 2005, the circuit court entered two separate written orders affirming the Board\u2019s decisions denying plaintiffs\u2019 requests for duty annuities. On May 9, 2005, Preston filed a notice of appeal seeking review of both the circuit court\u2019s order dismissing her request for a writ of mandamus and its order affirming the Board\u2019s denial of her request for a duty annuity. On that same date, Rokosik filed a separate notice of appeal seeking review of the circuit court\u2019s order affirming the Board\u2019s denial of her request for a duty annuity. Thereafter, on July 29, 2005, this court entered an order consolidating the two appeals pursuant to an agreed motion filed by counsel for Preston and Rokosik. Plaintiffs contend on appeal that they are entitled to duty annuities under section 6 \u2014 140 because their husbands were receiving occupational disability benefits at the time of their deaths for diseases that permanently prevented them from returning to active service. In addition, Preston contends that the trial court should have granted her request for a writ of mandamus.\nBACKGROUND\nEllen Preston\nEllen Preston is the widow of John Preston (Mr. Preston). Mr. Preston began working for the Chicago fire department in November 1974, and on October 22, 2000, at age 49, he suffered a heart attack while on duty Following his heart attack, Mr. Preston applied for an occupational disability benefit, and in December 2001 the Board conducted an evidentiary hearing on that application.\nVarious medical reports and records were presented at that hearing. A report by Board physician George S. Motto, who evaluated Mr. Preston following this event, related the circumstances surrounding the heart attack as follows:\n\u201cWhile on[ ] duty at a firehouse on October 22, 2000 [Mr. Preston] developed a[n] uneasy feeling and a tightness in his upper chest by his clavicle (collar bone). He then walked up a flight of stair[s] and when he entered his room, in the presence of a friend actually had a syncopic episode from which he awakened. He had very little pain although he describes markefd] diaphoresis (sweating). He finally decided to seek help in the hospital. He was brought to St. Francis Hospital in Blue Island where he was having an acute anterior wall myocardial infarction.\u201d\nDr. Motto\u2019s report additionally noted that Mr. Preston \u201csuffered an acute myocardial infarction which required stenting and then angioplasty\u201d and opined that \u201c[b]ecause of his coronary artery disease he is disabled and should not perform paramedic duties.\u201d\nA report prepared by Dr. Joseph V Messer, who also evaluated Mr. Preston, noted that Mr. Preston had \u201cgenerally enjoyed good health except for significant obesity with a 100 pound weight gain over the past five years, until [the date of his heart attack], when he lost consciousness after climbing the stairs to his office.\u201d Dr. Messer noted in his report that he \u201curged [Mr. Preston] to contact his primary care physician for an evaluation of his serum lipids with appropriate therapy if indicated, and for referral to a weight loss program such as \u2018Weight Watchers\u2019 in an effort to reduce his significant, near-morbid exogenous obesity.\u201d\nAt the hearing on his application for occupational disability benefits, Mr. Preston was asked, \u201cDid you develop your heart condition during the time you were in service with the Fire Department?\u201d Mr. Preston responded, \u201cI can\u2019t say. I believe I did. I had a heart attack the morning I went to work on October 22, of 2000.\u201d Mr. Preston additionally testified that he had no knowledge of any heart problems prior to his heart attack. Dr. Motto, the only witness other than Mr. Preston to testify at the hearing, opined that Mr. Preston\u2019s disability was permanent.\nAt the conclusion of the hearing, the Board granted Mr. Preston an occupational disease disability benefit pursuant to section 6 \u2014 151.1 of the Pension Code (40 ILCS 5/6 \u2014 151.1 (West 2000)), and upon the motion of one of the Board members, found that the disability was permanent. The Board\u2019s \u201cDecision and Findings of Facts,\u201d dated December 19, 2001, states that Mr. Preston \u201cis unable to perform his duties in the Chicago Fire Department by reason of heart disease resulting solely from his service as a fireman.\u201d\nMr. Preston died on September 10, 2002, at age 50; the death certificate states that the cause of death was coronary artery disease. Following her husband\u2019s death, Preston submitted an application for widow\u2019s annuity. The Board subsequently granted Preston an ordinary widow\u2019s annuity pursuant to section 141.1 of the Pension Code and notified her of its decision in an October 2002 letter.\nOn December 30, 2002, Preston filed a two-count complaint for administrative review. Count I alleged \u201c[t]he decision of the Board should be reversed on the grounds that as a matter of law and the manifest weight of the evidence, [Preston] is entitled to section 6 \u2014 140 duty death widow benefit.\u201d In addition, count I asserted that the Board\u2019s actions violated Preston\u2019s due process rights to a fair hearing and specifically alleged that \u201cthe [Board\u2019s] notice of hearing and post-hearing letters to plaintiff failed to provide any notice of any material facts or controversy to which [she had a] right to be present, retain an attorney, present evidence, or cross-examine witnesses.\u201d Count II alleged that \u201c[a] substantial number of widows whose husbands died while in receipt of duty disability benefits have a clear legal right to Section 6 \u2014 140 widow\u2019s annuity\u201d and asserted that a substantial number of widows \u201care now receiving substantially less because the Board failed to afford a due process hearing as required by the Illinois and United States Constitutions.\u201d Based on these allegations, Preston sought a writ of mandamus ordering the Board to notify all potential widows of their rights under the Pension Code and to conduct a hearing conforming to fair notice and due process.\nThe trial court dismissed count II of Preston\u2019s complaint pursuant to a motion filed by the Board. However, the trial court remanded count I of Preston\u2019s complaint to the Board for a hearing, finding that the Board failed to satisfy the requirements of due process before rendering its decision on Preston\u2019s application for an annuity benefit.\nThe record on appeal reflects that on remand counsel for Preston submitted several exhibits, including papers relating to this litigation, legislative activities related to the Illinois Pension Code, and a transcript of a Board meeting regarding a fireman unrelated to Mr. Preston. The record does not reflect that counsel for Preston presented any evidence regarding an alleged connection between Mr. Preston\u2019s coronary artery disease and a specific incident relating to his work as a paramedic.\nFollowing the remand hearing, the Board concluded Mr. Preston was not a fireman killed in the performance of duty pursuant to section 6 \u2014 140, and therefore his widow was not entitled to a duty annuity benefit. In support of this conclusion, the Board found:\n\u201c7. There is no language contained in 40 ILCS \u00a75/6 \u2014 140 that specifically states that the widow of a fireman who was receiving occupational disease disability benefits, is entitled to receive the annuity provided in that Section upon the death of the fireman.\n8. Payment of a Duty Death Widow\u2019s Annuity benefit pursuant to 40 ILCS \u00a75/6 \u2014 140 to the widow of a fireman who died while in receipt of occupational disease disability benefits would result in the widow receiving an annuity that was greater (75% of salary) than the occupational disease disability benefit that the fireman was receiving (65% of salary) prior to his death.\n9. Ellen M. Preston did not produce sufficient medical evidence to support a finding that John T. Preston was prevented from subsequently resuming active service in the Chicago Fire Department as a result of his performance of an act or acts of duty.\u201d\nIn addition the Board\u2019s decision included the following conclusion:\n\u201c[I]t would not be consistent with the expressed intent of the Legislature to have granted a benefit to the widow of a fireman whose husband died while receiving occupational disease disability benefits that [were] greater than the disability benefit that the husband was receiving while he was alive.\u201d\nThereafter, on January 6, 2005, Preston filed a memorandum in the circuit court in support of her complaint for administrative review of the Board\u2019s decision. In that memorandum, Preston contended that \u201c[a] duty disability benefit is the same as an occupational disease disability benefit\u201d and that \u201cwidows of both duty and occupationally disabled firemen are entitled to the same benefits of section 6 \u2014 140.\u201d The circuit court upheld the Board\u2019s decision denying Preston\u2019s request for a duty annuity. In support of its holding, the court explained:\n\u201cThe Retirement Board correctly points out that the Pension Code does not provide benefits to widows greater than the benefits firemen are entitled to receive while still alive. The court finds this argument persuasive. John Preston was not awarded a duty disability which would have entitled him to 75% of his salary while still living and which would have made his widow eligible for 75% of his salary upon his death. John Preston was awarded an occupational disability which entitled him to 65% of his salary while living. There is no provision in the Pension Code that would allow Ellen Preston to receive \u2018Death in the line of duty\u2019 benefits at 75% of her husband\u2019s salary, and no provision in the Pension Code that would allow Ellen Preston to continue to receive 65% of her husband\u2019s salary. ***\nIn cities with over 500,000 people, the Illinois legislature has chosen to award a higher benefit to firemen eligible for duty disability. Therefore, a duty disability and an occupational disability are clearly not the same benefit. *** This court agrees with the Retirement Board that Ellen Preston is not eligible to receive greater benefits than her spouse was eligible to receive while he was still living.\u201d\nCarol Rokosik\nCarol Rokosik is the widow of Edward D. Rokosik (Mr. Rokosik). Mr. Rokosik began working for the Chicago fire department in October 1978. In September 1998, Mr. Rokosik was diagnosed with kidney cancer. Following this diagnosis, Mr. Rokosik applied for an occupational disability benefit, and in February 2000 the Board conducted an evidentiary hearing on that application.\nAt that hearing, Mr. Rokosik testified that he developed his cancer during the time that he was in service with the Chicago fire department. Mr. Rokosik indicated that he had been exposed to heat, noxious fumes and gases while employed as a firefighter. The following exchange then took place between Mr. Rokosik and the Board\u2019s attorney:\n\u201cQ. Do you have any specific incidents that you would point to?\nA. No, sir.\nQ. You are just talking about the cumulative effect of exposure?\nA. Yes.\u201d\nBoard physician Dr. Motto testified that he examined Mr. Rokosik and reviewed his medical records. Dr. Motto opined that Mr. Rokosik was not able to perform his duties as a firefighter \u201cbecause of his kidney cancer and the resultant need for surgery and other treatments.\u201d In addition, Dr. Motto testified that several medical studies he had reviewed found an increased risk of kidney cancer in firefighters and indicated \u201ca connection between an activity as a firefighter and the development of kidney cancer.\u201d\nAt the conclusion of the hearing, the Board granted Mr. Rokosik an occupational disease disability benefit pursuant to section 6 \u2014 151.1 of the Pension Code (40 ILCS 5/6 \u2014 151.1 (West 2000)), and upon the motion of one of the Board members, found that the disability was permanent. The Board\u2019s \u201cDecision and Findings of Facts,\u201d dated February 16, 2000, states that Mr. Rokosik \u201cis unable to perform his duties in the Chicago Fire Department by reason of his development of a type of cancer which may be caused by exposure to heat, radiation or a known carcinogen as defined by the International Agency for Research on Cancer.\u201d (Emphasis added.)\nMr. Rokosik died in July 2003; the death certificate states the cause of death was kidney cancer. Thereafter, Rokosik submitted an application for widow\u2019s annuity.\nFollowing a hearing on Rokosik\u2019s application, the Board concluded Rokosik was eligible to receive a non-duty annuity pursuant to section 6 \u2014 141.1 of the Pension Code but had not produced sufficient evidence to prove she was entitled to receive a duty annuity pursuant to section 6 \u2014 140 of the Code. In support of this conclusion, the Board found that Mr. Rokosik \u201cdied from kidney cancer which was not directly related to his performance of an act or acts of duty.\u201d In addition, the Board noted that widows of firemen who were in receipt of occupational disease disability benefits (at the time of their deaths) are not entitled to widow\u2019s annuities under section 6 \u2014 140 of the Code.\nThereafter, in October 2003, Rokosik filed a complaint for administrative review of the Board\u2019s decision in the circuit court. The circuit court upheld the Board\u2019s decision in an April 22, 2005, memorandum opinion and order, following the same reasoning which it applied in reviewing Preston\u2019s complaint for administrative review.\nRokosik and Preston filed separate appeals of the circuit court orders denying them duty annuities. In addition to seeking review of the denial of a duty annuity, Preston\u2019s appeal sought review of the trial court\u2019s order dismissing her request for a writ of mandamus. On July 29, 2005, this court consolidated these two appeals pursuant to an agreed motion filed by plaintiffs\u2019 counsel.\nANALYSIS\nPlaintiffs maintain on appeal that \u201cthe resolution of this case depends, not upon evidence heard by the Board or even application of those facts to the law (a mixed question of fact and law to which a clearly erroneous standard should apply), but upon the purely legal question of the proper interpretation of the statutory provisions governing annuity benefits for the widows of firefighters found to be disabled by a job related causation.\u201d Specifically, plaintiffs contend that because their husbands were receiving occupational disability benefits at the time of their deaths for illnesses which permanently prevented them from returning to active service, plaintiffs are, as a matter of law, entitled to a duty annuity under section 6 \u2014 140. Accordingly, plaintiffs argue, the Board\u2019s decision denying them duty death benefits is subject to de novo review.\nSection 6 \u2014 140 of the Code states in relevant part:\n\u201cThe 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.\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; nor shall such annuities be paid unless the widow was the wife of the fireman at the time of the act or acts of duty which resulted in his death.\u201d (Emphasis added.) 40 ILCS 5/6 \u2014 140 (West 2004).\nSection 6 \u2014 110 defines \u201cact of duty\u201d as:\n\u201cAny act imposed on an active fireman by the ordinances of a city, or by the rules or regulations of its fire department, or any act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person.\u201d 40 ILCS 5/6 \u2014 110 (West 2004).\nThe plain language of section 6 \u2014 140 of the Code thus provides that in order to receive a duly annuity, a widow of a deceased fireman must establish that \u201cthe performance of an act or acts of duty\u201d either directly resulted in the death of her husband or prevented him from resuming active service in the fire department. 40 ILCS 5/6 \u2014 140 (West 2004). This court, in construing section 6 \u2014 140, has clarified that in the latter situation a widow must establish the act or acts of duty in question permanently caused the fireman to be unable to return to active duty. Bertucci v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 351 Ill. App. 3d 368, 373-74 (2004); Barry v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 357 Ill. App. 3d 749, 768 (2005) (following Bertucci). Thus, contrary to plaintiffs\u2019 position, resolution of whether the Board properly denied their requests for duty annuities does depend on evidence presented to the Board and whether the Board properly applied section 6 \u2014 140 of the Code to that evidence. Accordingly, we apply the clearly erroneous standard to our review of plaintiffs\u2019 appeal. See Barry, 357 Ill. App. 3d at 764-65 (whether Board properly construed and applied section 6 \u2014 140 in concluding that widows were not entitled to duty death benefits presents a mixed question of law and fact subject to the clearly erroneous standard of review).\nWith respect to Preston\u2019s claim for a duty annuity, the Board found that she \u201cdid not produce sufficient medical evidence to support a finding that John T. Preston was prevented from subsequently resuming active service in the Chicago Fire Department as a result of his performance of an act or acts of duty.\u201d We have reviewed the evidence presented to the Board at the remand hearing on Preston\u2019s claim for a duty annuity and find no basis for disturbing this finding. We recognize that Mr. Preston suffered a heart attack while on duty and that the Board thereafter granted him an occupational disability benefit. Furthermore, we are mindful that the Board\u2019s written decision granting him an occupational disability benefit stated that he was unable to perform his duties in the Chicago fire department by reasons of heart disease resulting solely from \u201chis service as a fireman.\u201d We emphasize, however, that the Board\u2019s decision did not state that Mr. Preston\u2019s heart disease resulted from \u201can act or acts of duty.\u201d\nAs noted above, section 6 \u2014 110 of the Code defines \u201cact of duty\u201d as \u201c[a]ny act imposed on an active fireman by the ordinances of a city, or by the rules or regulations of its fire department\u201d as well as \u201cany act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person.\u201d 40 ILCS 5/6 \u2014 110 (West 2004). The evidence before the Board in the instant case reflects that Mr. Preston suffered a heart attack shortly after climbing stairs at the firehouse. Preston, however, presented no evidence to the Board indicating that an act undertaken by her husband in an attempt to save a person or the property of a person caused his heart disease or prevented him from returning to active service. Furthermore, Preston presented no evidence to the Board indicating that the performance of an act imposed upon her husband by city ordinance or by a rule or regulation of the fire department caused him to contract the heart disease which prevented him from returning to work and of which he ultimately died. In short, while Preston did present the Board with its own finding, made at her husband\u2019s occupational disability hearing, that Mr. Preston was rendered permanently disabled by reasons of heart disease resulting solely from his \u201cservice as a fireman,\u201d she did not present the Board with evidence indicating that a specific act or acts of duty rendered him disabled.\nWith respect to Rokosik\u2019s claim for a duty annuity, the Board found that Mr. Rokosik \u201cdied of kidney cancer which was not directly related to his performance of an act or acts of duty.\u201d We have reviewed the evidence before the Board at the time it rendered its decision and find no basis for disturbing this finding. We recognize, as plaintiffs note in their brief, that Board physician Dr. Motto testified at the hearing on Mr. Rokosik\u2019s application for duty disability that medical studies he had reviewed found an increased risk of kidney cancer in firefighters and indicated \u201ca connection between an activity as a firefighter and the development of kidney cancer.\u201d We note, however, that Rokosik presented no evidence to the Board indicating that a specific act performed by her husband in an attempt to save a person or the property of a person caused his kidney cancer or prevented him from returning to active service. Furthermore, Rokosik presented no evidence to the Board indicating that the performance of an act imposed upon Mr. Rokosik by city ordinance or by a rule or regulation of the fire department caused him to contract the kidney cancer which prevented him from returning to work and of which he ultimately died.\nPlaintiffs\u2019 primary contention on appeal, as noted earlier, is that they are each entitled to a duty annuity under section 6 \u2014 140 of the Code, as a matter of law, because their husbands were receiving occupational disability benefits, at the time of their deaths, for diseases which permanently prevented them from returning to active duty. In essence, plaintiffs ask us to construe section 6 \u2014 140 to automatically entitle widows of firemen to a duty annuity if their husbands were receiving an occupational disability benefit, at the time of their deaths, for a disease or condition which permanently prevented them from returning to active service.\n\u201cThe primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.\u201d Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320 (2003). \u201cTo do so, we examine the language of the statute, the most reliable indicator of the legislature\u2019s objectives in enacting the law.\u201d Rogers, 204 Ill. 2d at 320. \u201cWe afford the language of the statute its plain and ordinary meaning [citation] and construe the statute as a whole.\u201d Rogers, 204 Ill. 2d at 320. \u201cWords and phrases must not be viewed in isolation but must be considered in light of other relevant provisions of the statute.\u201d Rogers, 204 Ill. 2d at 320. \u201cWe also presume that in enacting the statute the legislature did not intend absurdity, inconvenience, or injustice.\u201d Rogers, 204 Ill. 2d at 320.\nThe plain language of section 6 \u2014 140 does not state that the widow of a fireman who was receiving occupational disability benefits at the time of his death for a permanent disability is automatically entitled to a duty annuity. Plaintiffs acknowledge in their reply brief that section 6 \u2014 140 does not specifically address the widows of occupationally disabled firemen. They argue, however, that a review of case law and other related statutory provisions supports their construction of section 6 \u2014 140.\nTo support their contention that the fact that their husbands were receiving occupational disabilities at the time of their deaths entitled plaintiffs to a duty annuity, plaintiffs cite our recent holdings in Barry and Bertucci that the widow of a fireman who was receiving duty disability at the time of his death is entitled to a duty annuity if she can establish that her husband\u2019s disability permanently prevented him from returning to active service. Plaintiffs then argue that \u201c[a] duty disability benefit is the same as an occupational disease disability benefit\u201d and that, therefore, widows such as themselves, whose husbands were receiving occupational disability benefits at the time of their deaths and whose disabling conditions prevented them from returning to active service, are automatically entitled to receive a duty annuity.\nPlaintiffs\u2019 argument is based upon two separate premises. First, plaintiffs\u2019 argument is based on the premise that the widow of a fireman who was receiving a duty disability benefit at the time of his death is entitled to a duty annuity if she can establish that her husband\u2019s disability permanently prevented him from returning to active duty. We agree with this premise \u2014 indeed it is essentially the rule construing section 6 \u2014 140 of the Code, which we noted above and which this court recently applied in Barry and Bertucci. See Barry, 357 Ill. App. 3d at 768; Bertucci, 351 Ill. App. 3d at 373-74.\nThe second premise underlying plaintiffs\u2019 argument is that the requirements for establishing a duty disability and an occupational disability are the same and, thus, that the grant of an occupational disability benefit necessarily entitles a widow to a duty annuity when her husband\u2019s occupational disability permanently prevents him from returning to active duty. Specifically plaintiffs contend \u201cDuty Disability Benefits in Section 6 \u2014 151 are identical in purpose to Occupational Disability Benefits in Section 6 \u2014 151.1 of the Code. The Retirement Board\u2019s attempt to make a distinction is meritless. The fact is, the two disability benefits are for job related injuries or illnesses. The disability standard is the same for both benefits. [Citation.] The proof of disabibty is the same.\u201d\nWe reject this second premise as a comparison of the two statutory provisions governing duty disability and occupational disabibty reflects that the requirements for establishing eligibility for those benefits are not the same.\nSection 6 \u2014 151, which provides for duty disabibty benefits, states in relevant part:\n\u201cAn active fireman who is or becomes disabled on or after the effective date as the result of a specific injury, or of cumulative injuries, or of specific sickness incurred in or resulting from an act or acts of duty, shall have the right to receive duty disabibty benefit during any period of such disabibty for which he does not receive or have a right to receive salary, equal to 75% of his salary at the time the disabibty is allowed.\u201d 40 ILCS 5/6 \u2014 151 (West 2004).\nSection 6 \u2014 151.1, which provides for occupational disability benefits, states in relevant part:\n\u201cThe General Assembly finds and declares that service in the Fire Department requires that firemen, in times of stress and danger, must perform unusual tasks; that by reason of their occupation, firemen are subject to exposure to great heat and to extreme cold in certain seasons while in performance of their duties; that by reason of their employment firemen are required to work in the midst of and are subject to heavy smoke fumes and carcinogenic, poisonous, toxic or chemical gases from fires; and that in the course of their rescue and paramedic duties firemen are exposed to disabling infectious diseases, including AIDS, hepatitis C, and stroke. The General Assembly further finds and declares that all the aforementioned conditions exist and arise out of or in the course of such employment.\nAny active fireman who has completed 7 or more years of service and is unable to perform his duties in the Fire Department by reason of heart disease, tuberculosis, any disease of the lungs or respiratory tract, AIDS, hepatitis C, or stroke resulting from his service as a fireman, shall be entitled to receive an occupational disease disabibty benefit during any period of such disability for which he does not have a right to receive salary.\nAny active fireman who has completed 7 or more years of service and is unable to perform his duties in the fire department by reason of a disabling cancer, which develops or manifests itself during a period while the fireman is in the service of the department, shab be entitled to receive an occupational disease disabibty benefit during any period of such disability for which he does not have a right to receive salary. In order to receive this occupational disease disability benefit, the type of cancer involved must be a type which may be caused by exposure to heat, radiation or a known carcinogen as defined by the International Agency for Research on Cancer.\nThe occupational disease disability benefit shall be 65% of the fireman\u2019s salary at the time of his removal from the Department payroll.\u201d 40 ILCS 5/6 \u2014 151.1 (West 2004).\nThe plain language of section 6 \u2014 151.1 states the nature of firemen\u2019s occupation exposes them to an inherently dangerous environment and provides that firemen who have completed at least seven years of service may potentially be entitled to an occupational disability. Section 6 \u2014 151.1 provides that some of what a fireman must establish in order to receive an occupational disability benefit is contingent upon the nature of the disease, illness, or condition giving rise to the disability. Specifically, the second paragraph of section 6 \u2014 151.1 states that a fireman who develops heart disease, tuberculosis, any disease of the lungs or respiratory tract, AIDS, hepatitis C, or stroke may qualify for an occupational disability benefit if he can establish that the subject disease or condition prevented him from being able to perform his duties and \u201cresult[ed] from his service as a fireman.\u201d (Emphasis added.) 40 ILCS 5/6 \u2014 151.1 (West 2004). On the other hand, the third paragraph of section 6 \u2014 151.1 states that a fireman who develops a certain type of cancer may potentially qualify for an occupational disability benefit and does not require that he establish that the cancer resulted from his service as a fireman. 40 ILCS 5/6 \u2014 151.1 (West 2004).\nRegardless of the nature of the disease, a fireman will not be eligible for an occupational disability benefit unless he has completed seven years of service. This seven-year requirement reflects that occupational disability benefits were intended to compensate firemen for diseases likely to be contracted as a result of repeated exposure to the inherently dangerous conditions which firemen confront in the course of their service. Finally, the benefit provided for occupational disability is 65% of a firemen\u2019s salary. 40 ILCS 5/6 \u2014 151.1 (West 2004).\nIn contrast to an occupational duty disability benefit under section 6 \u2014 151.1 of the Code, which requires a fireman with a disease other than cancer to establish that the disease resulted from his \u201cservice as a fireman,\u201d a section 6 \u2014 151 duty disability benefit requires a fireman to establish that he became disabled \u201cas the result of a specific injury, or of cumulative injuries, or of specific sickness incurred in or resulting from an act or acts of duty.\u201d (Emphasis added.) 40 ILCS 5/6 \u2014 151 (West 2004). Furthermore, whereas an occupational duty disability compensates firemen who are repeatedly exposed to inherently dangerous environments and conditions and is not awarded to firemen who have completed less than seven years of service, a duty disability seeks to compensate firemen for injuries or conditions sustained as a result of specific, identifiable act or acts of duty and is not conditioned upon completion of a fixed number of years of service. Finally, the benefit provided for duty disability is not 65% of a fireman\u2019s salary but, rather, is 75% of a fireman\u2019s salaiy. 40 ILCS 5/6 \u2014 151 (West 2004). In short, contrary to plaintiffs\u2019 contention, the requirements for establishing entitlement to occupational and duty disability benefits are not the same. Accordingly, for the foregoing reasons, we reject plaintiffs\u2019 argument that section 6 \u2014 140 of the Code, the statutory provision governing duty annuities, entitles widows of occupationally disabled firemen to receive a duty annuity as a matter of law when their husbands\u2019 disability permanently prevented them from resuming active service.\nWe note that we do not hold today that a widow of a firefighter who was receiving an occupational disability benefit at the time of his death (i.e., 65% of her husband\u2019s salary) may never qualify for a duty annuity (i.e., 75% of her husband\u2019s salary), and we reject the dicta included in the decisions of the Board and the circuit court supporting such a rule. We emphasize that eligibility for a duty annuity requires review of the individual facts of a given case in order to determine whether a widow\u2019s husband\u2019s performance of an act or acts of duty permanently prevented him from resuming active service in the fire department. We can envision factual contexts in which the passage of time and/or advancements in medical science could enable the widow of a fireman who was receiving an occupational duty disability to establish, following her husband\u2019s death, that a specific act or acts of duty caused her husband\u2019s disease, sickness or condition. Such factual context is not presented by the instant case. Accordingly, based upon the foregoing discussion, we conclude that the Board\u2019s denial of duty annuities to plaintiffs was not clearly erroneous.\nIn addition to challenging the Board\u2019s decision granting her a non-duty annuity rather than a duty annuity, Preston argues on appeal that the trial court erred by dismissing count II of her complaint for administrative review. Count II of her complaint, as noted above, alleged that \u201c[a] substantial number of widows whose husbands died while in receipt of duty disability benefits have a clear legal right to Section 6 \u2014 140 widow\u2019s annuity\u201d and alleged that a substantial number of widows \u201care now receiving substantially less because the Board failed to afford a due process hearing.\u201d Based on these allegations, Preston requested a writ of mandamus ordering the Board \u201cto notify all potential widows of their rights under the [Code] and to conduct a hearing conforming to fair notice and due process.\u201d\nA party seeking a writ of mandamus to compel a defendant to perform an act or duty which does not affect the public at large must establish, among other things, that it previously demanded performance of that act or that the making of such a demand would have been unavailing. Murphy v. City of Park Ridge, 298 Ill. 66, 71-72 (1921); People ex rel. Edelman v. Hunter, 350 Ill. App. 75, 78 (1953).\nPreston\u2019s complaint in the instant action does not seek to compel the Board to undertake an action which affects the public at large and does not allege that she demanded the Board \u201cto notify all potential widows of their rights under the [Pension Code] and to conduct a hearing conforming to fair notice and due process.\u201d Furthermore, Preston\u2019s complaint does not allege any basis for concluding that a demand upon the Board for such action would have been unavailing. Accordingly, we affirm the dismissal of count II of Preston\u2019s complaint.\nCONCLUSION\nBased on the foregoing reasons, we affirm the Board\u2019s decisions denying plaintiffs duty annuities, the trial court\u2019s decisions upholding those decisions by the Board, and the trial court\u2019s dismissal of count II of Preston\u2019s complaint.\nAffirmed.\nO\u2019BRIEN, EJ., and GALLAGHER, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MARA FROSSARD" } ], "attorneys": [ "Martin O. Holland, of Evergreen Park, for appellants.", "Burke Burns & Pinelli, Ltd., of Chicago (Vincent D. Pinelli and Robert R. Hall, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "CAROL ROKOSIK, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.\u2014ELLEN PRESTON, Plaintiff-Appellant, v. THE RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.\nFirst District (5th Division)\nNos. 1\u201405\u20141501, 1\u201405\u20141502 cons.\nOpinion filed June 1, 2007.\nMartin O. Holland, of Evergreen Park, for appellants.\nBurke Burns & Pinelli, Ltd., of Chicago (Vincent D. Pinelli and Robert R. Hall, Jr., of counsel), for appellee." }, "file_name": "0158-01", "first_page_order": 176, "last_page_order": 190 }