Lake County Courthouse, Waukegan | By Nyttend [Public domain], from Wikimedia Commons
After a judge decided a pension board could award the widow of a firefighter who died of colon cancer an additional $1.7 million, the village of Buffalo Grove has asked a state appeals court to weight in, maintaining its argument the pension board needs more evidence the firefighter’s death can be directly connected to his service as a firefighter.
“This is the first known decision in the State of Illinois where a firefighter’s widow has been awarded the maximum 100 percent line of duty death pension without having to prove that specific acts of duty during the firefighter’s service actually caused (or contributed to) the death,” the village said in a press release announcing the appeal.
“This case represents a dangerous potential outcome for an already stressed pension system – not only for the Village of Buffalo Grove, but for 297 municipalities and fire protection districts throughout Illinois.”
The appeal to the Illinois Second District Appellate Court comes about a month since Lake County Circuit Judge Diane Winter backed the Buffalo Gove Firefighters’ Pension Fund Board in its dispute with the village over the pension awarded to Kim Hauber, wife of Buffalo Grove Firefighter Kevin Hauber.
Kevin Hauber died of colon cancer in January 2018, and was 51 years old at the time of his death.
Hauber had served since 1994 in the fire department in the northwest suburban village at the Cook-Lake county line. He was diagnosed with cancer in 2014. While undergoing treatment, Hauber applied in October 2014 for a line-of-duty pension benefit. However, Hauber returned to duty less than a year later and withdrew the application.
But in 2017, Hauber’s cancer returned, leading to his death a few months later.
Before he died, Hauber applied again for a line-of-duty pension. The pension board evaluated that application in the summer of 2017, soliciting three independent medical evaluations of Hauber’s condition to determine if firefighting made Hauber more likely to suffer this particular kind of cancer.
After his death, two of the three medical evaluators indicated they believed it was possible.
The village, however, said more evidence was required because, the village claimed, two of the three doctors – both oncologists – did not “identity any aspect of … Hauber’s particular service as a firefighter that appeared to actually cause or contribute to his colon cancer.”
The pension board approved Hauber’s pension request, prompting the village to ask the courts to review the decision to award the enhanced benefit, which they estimated would “conservatively” add at least $1.7 million to the total lifetime payout to Hauber’s wife.
Under a line-of-duty pension, Hauber’s widow would receive 100 percent of her late husband’s salary as an annuity, rather than the usual 75 percent under a non-line-of-duty pension.
According to the village, a standard pension would entitle Kim Hauber to a surviving spouse benefit of $76,162 per year. Under a line-of-duty pension, she would receive $101,549 per year.
After months of proceedings in Lake County court, Judge Winter sided in early February 2019 with the pension board, saying the medical evaluations and other research relied upon by the board sufficed.
“These studies serve as competent evidence supporting the board’s finding that there is a causal nexus between Kevin Hauber’s colon cancer and his service as a firefighter,” Judge Winter said, according to a transcript of her judgment, delivered orally from the bench during a hearing on
“Firefighters are exposed to a multitude of chemicals and contaminants from fires that are known to or suspected to cause cancer.”
In her ruling, Judge Winter noted a number of specific calls Hauber purportedly responded to in his 23 year firefighting career, which likely exposed him to toxic inhalants and other hazards. She also noted Hauber “was in apparent good health and physical condition” and “didn’t have any of the factors typically responsible for contributing to the development of colon cancer.”
She said tests also did not reveal a genetic predisposition to cancer in Hauber.
“The village has demanded that there be strict proof of specific occurrences in firefighter Hauber’s firefighting career that caused or contributed to his cancer,” Judge Winter said, according to the transcript. “With an illness such as cancer, such proof is unreasonable and certainly not required” under state law which requires “only … a showing of the cumulative effects of acts of duty over time…”
“The village asserts there is no evidence to link Kevin Hauber’s cancer to his career as a firefighter, and that’s simply untrue. There may not be a lot of evidence, but the Illinois Pension Code only requires some evidence as the pension board engages in its literal construction of determining Kim Hauber’s entitlement to a line-of-duty surviving spouse benefit,” the judge said.
In a prepared statement in the village’s news release announcing its appeal, Buffalo Grove Village President Diane Bragg said village officials “continue to mourn the loss of Kevin Hauber and are grateful for the contributions he made to our community.” But she said, the village continues to believe “the burden of proof to receive the additional pension benefit was not met under the statutory requirements.”
The village has been represented in the matter by attorneys with the firm of Laner Muchin Ltd., of Chicago.
The pension board has been represented by the firm of Ottosen Britz, of Naperville.
Kim Hauber has been represented by the Law Offices of Thomas Duda, of Arlington Heights.