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Friday, December 6, 2019

Appeals panel: Oak Lawn can't nix injured firefighter's disability pension, though he took job in Texas

By Scott Holland | Jul 3, 2017

Law money 04

A state appeals court has sided with a judge who said a pension board was wrong to revoke disability pension payments to an Oak Lawn firefighter who had taken a job at a Texas fire department despite doctors’ assertions he had been permanently disabled in an accident more than a decade ago.

In an unpublished order issued June 28, the Illinois First District Appellate Court upheld the ruling of Cook County Circuit Court Judge Moshe Jacobius in favor of firefighter Michael Orrico.

Justice Cynthia Y. Cobbs wrote the opinion; Justices Terrence J. Lavin and Aurelia Pucinski concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

Orrico, a 19-year veteran of the Oak Lawn department, went to court in 2015 to challenge the ruling of the the Village of Oak Lawn Firefighters’ Pension Fund and its board of trustees. The fund terminated Orinoco’s disability pension payments in 2014 after he briefly worked as an assistant fire chief in Murphy, Texas.

Orrico was hurt while responding to an emergency call in October 2006 when a car in reverse struck his left leg. Three doctors examined Orrico and declared him permanently disabled; he was awarded a line-of-duty disability pension after a Jan. 8, 2008, hearing.

He took the Texas job in March 2014 and resigned that July, after which the pension board conducted several hearings to determine if Orrico had recovered. In researching the assistant chief position, Orrico said that unlike his time as a lieutenant in Oak Lawn, the Texas job would be supervisory and not require active participation in fire suppression or rescue effort.

Although he could not presently meet the physical requirements in the stated job posting, including those required to obtain Texas Fire Commission credentials, Orrico said he presumed he was qualified based on his advanced certification in Illinois. He said he was forthcoming about his physical limitations related to the leg injury and that his resignation after four months was a result of disagreements over leadership style.

Murphy Fire Chief Mark Lee testified at the pension board’s hearings, describing Orrico’s visible limp and acknowledging Orrico said “he could no longer function as a firefighter.” After the board determined it had proof Orrico recovered and ended pension payments, Orrico on Sept. 4, 2015, filed an administrative review complaint in circuit court.

Although Jacobius reversed the board’s decision, the appellate panel said its review focused on the original pension board ruling, trying to determine if its “factual determinations had sufficient factual support in the record.”

The pension board argued it only had to find proof Orrico could still perform some duties in the fire service, saying he asserted as much on his job application. However, Cobbs wrote, the only question the board should have considered is if Orrico fully recovered from his disability — enough to resume work as an active firefighter.

Orrico, Cobbs noted, testified “he was still in constant pain and listed the various activities he could no longer do” — assertions Chief Lee corroborated. “There was no medical evidence offered to indicate that plaintiff’s knee had recovered, nor was there any evidence of plaintiff performing activities that showed he had recovered.”

The appellate panel said it relied on Lee’s expertise — having been Orrico’s direct supervisor and formerly holding the assistant chief position — to determine the Texas job did not physically tax Orrico beyond his diminished capability. That Orrico offered to attempt the physical tasks he might have been required to demonstrate to earn Texas certification “does not show an actual recovery from his disability,” the justices said.

According to Cook County court records, Orrico was represented in the action by attorney Thomas W. Duda, of Arlington Heights.

The Oak Lawn Firefighters’ Pension Fund was defended by attorneys with the firm of Puchalski Goodloe Marzullo, LLP, of Northbrook.

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Village of Oak LawnIllinois First District Appellate Court