Illinois Firefighter Ineligible For Non-Duty Disability Pension

The Illinois Court of Appeals has concluded that a firefighter was ineligible for a non-duty related disability pension despite putting in the required years of service, because he began working for a different department. Michael Wessell filed suit against the Wilmette Firefighters’ Pension Fund after the Fund’s board declined his request for a non-duty disability pension.

Under Illinois pension law, a firefighter must serve seven years to be eligible for a non-duty disability pension. Wessell served as a Wilmette firefighter for nine years. However, he resigned on January 31, 2020, and took a job with the Lake Villa Fire Protection District on February 1, 2020.

Wessell apparently became disabled while working for Lake Villa. At this point, he had not served seven years in Lake Villa, and was no longer employed. Quoting from the complaint:

  • On February 16, 2021, Mr. Wessel applied for a non-duty disability pension with the Lake Villa Fire Protection District Fire Fighters’ Pension Board
  • Lake Villa Fire Protection District intervened in the pension application proceedings and argued it was not obligated to pay him a non-duty disability.
  • On May 15, 2021, Mr. Wessel filed a separate application for a non-duty disability pension with the Wilmette Fund.
  • On December 31, 2021, the Wilmette Board unanimously found that Mr. Wessel was not eligible for non-duty disability pension benefits.
  • The Wilmette Board noted that at the time Mr. Wessel applied for the disability pension, he was no longer an employee of the Wilmette Fire Department and that he had left voluntarily to take a job with another fire department.
  • The question before us is whether Mr. Wessel is entitled to a non-duty disability pension under the Pension Code.
  • At issue in this case are two specific provisions of the Pension Code.
  • The first provides for a non-duty disability pension based on seven years of creditable service, and the second provides the requirements for calculating that creditable service.
  • Section 4-111, titled “Disability pension—Not in duty,” provides in relevant part as follows: “A firefighter having at least 7 years of creditable service who becomes disabled as a result of any cause other than an act of duty, and who is found, pursuant to Section 4-112, to be physically or mentally permanently disabled so as to render necessary his or her being placed on disability pension, shall be granted a disability pension of 50% of the monthly salary attached to the rank held by the firefighter in the fire service at the date he or she is removed from the municipality’s fire department payroll.”
  • Section 4-109.3(n), titled “Employee creditable service,” as originally enacted by Public Act 93-689 provided: “If a firefighter who elects to make contributions for the pension benefits provided under this Section becomes entitled to a disability pension under Section 4-111, the last pension fund is responsible to pay that disability pension, provided that the firefighter has at least 7 years of creditable service with the last pension fund.”
  • Mr. Wessel argues that he earned his non-duty disability pension pursuant to the seven year requirement of section 4-111 while he was employed with the Wilmette Fire Department because he had nine years of creditable service with that department and section 4-109.3(n) simply dictates how the pension is to be split between the Wilmette Fund and the Lake Villa Fire Protection District. We reject this reading of the statute.
  • The plain language of section 4-109.3(n) makes clear that only the last pension fund is responsible for the non-duty disability pension and that an employee is entitled to that pension only “provided that the firefighter has at least 7 years of creditable service with the last pension fund.”
  • Mr. Wessel does not dispute that Lake Villa was his “last pension fund,” since that was the fund he was participating in at the time he withdrew from service.
  • Because Mr. Wessel had less than seven years of creditable service with that fund, he is not entitled to a non-duty disability pension.
  • It is indeed clear that section 4-109.3(n) describes two scenarios. In the first, only service with the last pension fund is credited. In the second, service with multiple pension funds is combined or stacked.
  • However, the plain language of subsection (n) makes clear that the second scenario applies only “[i]n the event a firefighter began employment with a new employer as a result of an intergovernmental agreement that resulted in the elimination of the previous employer’s fire department.”
  • In that limited circumstance, the statute provides that “the firefighter shall not be required to have 7 years of creditable service with the last pension fund to qualify for a disability pension under Section 4-111.”
  • Because Mr. Wessel did not leave the Wilmette Fire Department “due to an intergovernmental agreement that resulted in the elimination” of that department, he does not fall within this exception.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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