© richard j. reimer & associates llc, 2009, all rights reserved pension fund trustee...

PENSION FUND TRUSTEE CERTIFICATION PROGRAM LEGAL ASPECTS OF PENSION

FUND ADMINISTRATION

Module 2

Medical / Disability Issues

Richard J. Reimer, Esq.IPPFA General Counsel

I.ELIGIBILITY FOR BENEFITS

A. Non-Duty Disability Benefits

In order to obtain non-duty related benefits, an applicant must establish:

1. They are police officers or firefighters;2. An accident, injury or sickness was incurred;3. The applicant is found to be physically or mentally

disabled; and4. The disability renders a suspension from police duties/

firefighter duties.

Eligibility For Benefits Continued

Duty Related Disability Benefits

The applicant in this event needs to establish, in addition to

the four items set forth previously, that the injury, the

accident, or illness was a result of an act of duty.

Causation• Police• Fire

DEFINITION OF AN ACT OF DUTY

(1)FIREFIGHTERS

“[a]ny 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.”

Jensen vs. East Dundee Fire Protection District Firefighters’ Pension Board. 362 Ill.App3d.197, 839 N.E.2d 670 (2nd Dist.2005)

DEFINITION OF AN ACT OF DUTY

(2)POLICE

“[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinances or police regulations of the city in which this Article is in effect or by a special assignment; or any act of heroism performed in the city having for its direct purpose the saving of the life or property of a person other than the policeman.”

Sarkis vs. Des Plaines Police Pension Fund. 378 Ill.App3d. 833, 882 N.E.2d 1268 (1st Dist.2008)

Occupational Disease BenefitsFirefighters who seek an occupational disease

disability must show:

a. That they have to have five (5) or more years of creditable service as an active firefighter.

b. That they must establish a causal connection between their being unable to perform their duties as a firefighter, due to heart disease, tuberculosis, or any disease of lungs or respiratory tract, that shows a “causal connection” that the disease resulted from the performance of an act of duty as a firefighter.

II.APPLICATION PROCESS

Obtaining Necessary Information/Documentation1. Receipt and review application for disability benefits form;

2. Request in writing, that the applicant submit a written statement setting forth the following:

a) the reason why the applicant is requesting a disability pension, i.e.: what is the alleged disability;

b) whether the applicant is requesting a not on duty, duty, or occupational pension;

c) the date/time/location of how the sickness, illness or injury was incurred;

d) whether the sickness, illness or injury was reported to the Department, if claim for duty disability benefits; ande) the names of any witnesses, if any.

Obtaining Necessary Information/Documentation (Con’t)

3. Request that the applicant provide the Board with a list of the

names, and addresses of all health care providers that provided

treatment or evaluated the applicant for the sickness, illness or

injury. – Question – How to Get?

4. If line of duty or occupational claim, issue a subpoena to the

Department, requesting all documentation relating to worker’s comp

claim and applicant’s personnel file.

5. Upon receipt of all requested information, review documentation to

determine the type of physician that should examine the applicant

i.e.; cardiologist, neurologist, orthopedic surgeon, psychiatrist, etc.

B. Selection of Physicians

1. Guidelines for Selection of Appropriate Medical Experta) What is the medical expert’s area of practice or expertise

(i.e.; board certification);

a) Will that medical expert perform an Independent Medical Examination (IME);

b) If so, will the medical expert be available to testify before the board or an an evidence deposition;

c) whether the medical expert has any experience in performing IME’s on firefighters or police officers:

e) obtain a copy of the medical expert’s Curriculum Viate (CV);

f) determine the medical expert’s charges for IME and testing.

Selection of Physicians Continued

2. Once Medical Experts Are Retained

a) Send documents to physicians, including:

i. applicant’s written statement;

ii. all medical records obtained from applicant’s

treating/examining physicians;

iii. any applicable records obtained from Department i.e.;

reports previous injuries – worker’s comp claim, sick

time records, etc.; and

iv. job description.

b) Instructions (questions) for physician:

i. the nature and extent of any disability/disabilities present,

including any specific diagnosis/diagnoses;

ii. whether the applicant suffers from any pre-existing conditions;

iii. whether the applicant’s explanation of how the sickness,

illness, or injury occurred is consistent with his findings;

iv. whether any further diagnostic studies are indicated, to help

physician render his opinion; i.e.; MRI, CT scan, myelogram,

bone scan, etc.

c) Occupational Disease Issues

i. if the firefighter is seeking disability due to disease of heart,

lungs or respiratory tract – obtain entrance physical from

Department or Board physical;

ii. if the disability results from cancer, obtain an copy of

International Agency for Research on Cancer (IARC) report and

request that the physician render an opinion whether within a

reasonable degree of medical certainty the type of cancer was

the type which may be caused by exposure to heat, radiation or

known carcinogen.

III.ADJUDICATION OF CLAIMS

A.Process for Adjudication of Claims

A. Procedural Due Process Requirements

B. Legal Representation

C. Hearing Procedure – Order of Proof

D. Making an Adequate Record

E. Preparation of Pension Board Decision

F. Modification of Pension Board Decision

B.SPECIFIC HEARING ISSUES

• Requests for Continuance• Open Meeting• Applicability of Formal/Technical Review of Evidence• Rulings on Objections to Evidence• Disqualifications of Trustees

1. Conflict of Interest2. Bias or Prejudice of Trustees

F. Intervention by Third PartiesG. Use of Discovery Depositions H. Discovery IssuesI. Time for Conducting Evidentiary HearingsJ. Trustee Investigations

A. Requests for Continuance

B.Open Meeting

C.Applicability of Formal / Technical

Review of Evidence

D.Rulings on Objections to Evidence

E.Disqualifications of Trustees

1. Conflict of Interest

2. Bias or Prejudice of Trustees

F.Intervention by Third Parties

G.Use of Discovery Depositions

H.Discovery Issues

I.Time for Conducting Evidentiary Hearings

J.Trustee Investigations

C.JUDICIAL REVIEW OF PENSION BOARD DECISIONS

• Introduction• Standing to Sue• Immunity from Suit• Administrative Review Proceedings• Exhaustion of Administrative Remedies• Finalizing of Administrative Decisions• Parties to Administrative Review• Jurisdictional Time Limits• Scope of Review.

1. Manifest of Weight2. Legally Erroneous3. Arbitrary and Capricious

J. Powers of Reversing CourtK. Appeals from Circuit Court Decision

A.Introduction

B.Standing to Sue

C.Immunity from Suit

D.Administrative Review Proceedings

E.Exhaustion of Administrative Remedies

F.Finalizing of Administrative Decisions

G.Parties to Administrative Review

H.Jurisdictional Time Limits

I.Scope of Review

1. Manifest Weight

1. Legally Erroneous

2. Arbitrary and Capricious

J.Powers of Reversing Court

K.Appeals from Circuit Court Decision

OPEN MEETINGS ACT 5 ILCS §120/01 et seq.

A.NOTICE REQUIREMENTS FOR HEARINGS

1) 10 Days 40 ILCS §5/4-112 (Fire)2) Minimum 48 Hours Public Notice (Police) 3) Notice Posted Publically

• Agenda• Possible Executive Session

B.PUBLIC OR CLOSED SESSION

1) All Hearings must be public – Evidentiary Portions;

1) Deliberations – Can be in executive or closed session (5 ILCS §120-2.00(c-4))

C.EXECUTIVE/ CLOSED SESSION

DELIBERATIONS

1) Motion must cite specific reason/exception

2) Verbatim video or audio tape of closed or Executive Sessions

• Court reporter as back up

3) No final action can be taken - no vote

4) Must issue written decision or vote publically

5) Must keep recording for 18 months – can

destroy if reduced to writing

D.QUORUM REQUIREMENTS

1) 5 member board; 3 constitutes a Quorum. All must vote affirmatively to pass motion, resolution, etc. (5 ILCS §120/1.02)

2) Attendance by audio/video conference (5 ILCS §120/7)

a) Must have Quorum presentb) Trustee can’t physically attend due to:

• Personal illness or disability• Employment purposes• Family or other emergency

c) All in attendance must be able to hear/see absent trustee

© richard j. reimer & associates llc, 2009, all rights reserved pension fund trustee...

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