Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s Burning Question: In 2002 I was granted a disability pension for a back injury I sustained on the job. In 2010 the pension board began trying to revoke my pension under a law that allows them to terminate it if they can prove I have “recovered”. The board’s doctor claims I am a faker and their case hinges on his testimony that I was never hurt. So here is my question: if the doctor testifies that I was never hurt, isn’t that different than saying I have recovered?
Answer: According to the Illinois Appellate Court, testimony that a firefighter was never injured is not testimony that a firefighter has recovered – and as a result the disability pension of a firefighter that was revoked based upon such testimony must be reinstated.
That counter intuitive ruling was handed down on November 21, 2012 in the case of Hoffman v. Orland Firefighters’ Pension Board.
Eric Hoffman was granted a disability pension in 2002, and his disability was confirmed again in 2005 following a medical review. In 2009 the pension board sent Hoffman for additional medical exams prompting Dr. Martin Lanoff to conclude that he had never been injured.
Based on Dr. Lanoff’s testimony, the pension board ruled in June, 2010 that Hoffman had recovered and voted to terminate his pension. That prompted Hoffman to file suit. The trial court ruled in favor of Hoffman, and the board appealed.
In deciding the case, the appellate court looked at the language of the Illinois Pension Code, 40 ILCS 5/1-101 et seq. that allows a pension board to terminate a disability “[u]pon satisfactory proof to the board that a firefighter on the disability pension has recovered from disability.”
The court concluded that medical testimony that a firefighter was never injured is not the same as testimony that a disabled firefighter has recovered. In the court’s own words “the Code [does not] authorize a board to conclude that a pensioner has recovered from the disabling injury based solely on medical evidence that the firefighter was never actually disabled”.
The court also noted that the Pension Code did not provide a mechanism for the pension board to revisit the initial question of whether or not a pension was properly granted. In the court’s mind, allowing the board to use the doctor’s testimony in this case would essentially create a way to revisit the granting of a pension without lawful authority.
Here is a copy of the decision. no disability v. recovered from
If an appeal is filed, it would be to the Illinois Supreme Court.
As for the long term implications of the decision – about the only thing it would appear to accomplish (aside from protecting Eric Hoffman’s pension) is it tells doctors in such cases to stay on script when testifying. If the issue is whether the pensioner has “recovered”, don’t embellish by adding your opinion about things beyond the scope of what is necessary…. IMHO…. of course….
