by Laura A. Weizeorick (Fall 2017)
The First District Appellate Court recently reversed a pension board’s decision to award a line of duty disability pension to a police officer in Village of Alsip v. Portincaso, 2017 IL App (1st) 153167. The court based its determination on two grounds: (1) the Board abused its discretion in denying the Village petition to intervene; and (2) a prior decision from the Illinois Workers’ Compensation Commission on whether the officer had been injured in effectuating an arrest precluded a contrary determination by the Board.
James Portincaso, a police officer for the Village of Alsip, responded to a domestic violence call on December 11, 2010. On the scene, Portincaso had to physically intervene to stop an intoxicated man from charging his father and then wrestle him to the ground to effectuate an arrest. The next morning, Portincaso woke with back pain and was seen by a chiropractor.
Three months later, Portincaso filed a claim under the Illinois Workers’ Compensation Act. His claim was denied on September 20, 2011, when an arbitrator determined that his injury was not causally related to the 2010 arrest. Portincaso appealed to the Commission. His appeal was denied and affirmed on administrative review by the circuit court. Portincaso then appealed the circuit court’s decision to the First District Appellate Court.
While the appeal of his workers’ compensation case was pending, Portincaso applied to the Board on February 21, 2012, for disability benefits related to the same injuries that were the subject of his workers’ compensation claim. The Village received notice of the proceedings after the first day of hearings and filed a petition to intervene a week later to present evidence that Portincaso’s injury was not duty related and not related to his employment. The Board denied the Village’s petition to intervene on February 27, 2014.
On March 3, 2014, the First District affirmed the denial of Portincaso’s workers’ compensation claim. On March 26, 2014, the Village filed a motion for reconsideration with the Board and a motion to dismiss based on collateral estoppel. The Village contended that it had a substantial interest in the proper expenditure of public funds and in not becoming liable for remuneration under the Public Safety Employee Benefits Act (PSEBA). At a Board hearing on May 1, 2014, to continue the matter, the Village orally renewed its motion to reconsider and motion to dismiss.
On June 18, 2014, the Board denied both the Village’s motion for reconsideration and its motion to dismiss. The village filed for administrative review, and the circuit court reversed the Board’s decision, finding that the Commission’s decision that plaintiff’s injury was not related to his employment barred him from relitigating the issue. The circuit court declined to address whether the Village should have been permitted to intervene. Portincaso appealed.
On appeal, the First District found that collateral estoppel can only be asserted as an affirmative defense by a party. Therefore, the issue of whether the Village should have been permitted to intervene was a threshold issue that had to be resolved before the matter of collateral estoppel could be determined.
In examining the threshold question, the First District found that the Village’s interest in the proper expenditure of public funds — combined with an interest in developing a full evidentiary record including evidence that plaintiff’s injury was not related to his employment and was not duty related — were sufficient bases for intervention. Further, the Village clearly had an interest in the award of a line of duty pension as it makes the pensioner eligible to pursue PSEBA. Therefore, the decision to deny the Village’s petition to intervene was an abuse of discretion by the Board.
As to whether the Commission’s decision had a preclusive effect on the Board, the court set forth a three-part test regarding the Commission’s decision:
- The Commission’s decision must have been against the same party;
- The Commission’s decision must have been based on the identical issue as presented to the pension board; and
- The Commission’s decision must have been a final judgment on the merits.
The parties did not dispute that the parties were the same, as Portincaso was in both the workers’ commission proceedings and the disability proceedings. The court also found that the issue presented was identical because the Commission — which determines benefits for accidental injuries arising out of and in the course of employment — fully adjudicated the issue of causation. Indeed, in this case, the arbitrator had clearly held that Portincaso was not injured as a result of the 2010 arrest. To award Portincaso a line of duty pension, the pension board would have to reach the opposite conclusion on the identical issue and find that the injury was the result of the 2010 arrest.
Finally, the Commission’s March 3, 2014 decision became a final judgment on the merits on April 7, 2014, after Portincaso’s statutory thirty-five (35) day period to appeal ran. Although the Village’s first motion for reconsideration on March 26, 2014, was premature, its motion on May 1, 2014, to orally renew its motion properly presented the final unappealable judgment as new evidence.
Accordingly, the First District affirmed the reversal of benefits by the circuit court. It found that Portincaso was collaterally estopped from relitigating the issue of causation, or redetermining whether the injury was the result of the 2010 arrest, and that the Board had abused its discretion in denying the Village’s petition to intervene.
There are two important takeaways from this case. First, a municipality must be granted leave to intervene in the pension proceedings to assert collateral estoppel on appeal. If the Village had not been granted leave to intervene in the pension hearing, then it would not have been allowed to assert collateral estoppel against the Board on appeal. It is therefore not surprising that the court found the denial of the Village’s petition to intervene by the Board to be an abuse of discretion. We therefore recommend providing notice of pension hearings to the applicable municipality well in advance to prevent last minute interventions and unnecessary delays and disruptions of the hearing process.
Second, the Portincaso decision only forecloses discrete causation issues from being relitigated by a pension board. For example, if the issue before the pension board in Portincaso had been to determine whether the arrest by Portincaso constituted an act of police duty that inherently involves special risks — rather than whether the injury was caused by the arrest — then the Commission’s decision would not have had a preclusive effect.
Such a scenario has already been analyzed by the Second District in Demski v. Mundelein Police Pension Board, 358 Ill.App.3d 499 (2nd Dist. 2005), and was found not to be identical. In Demski, the issue presented to the Commission was whether the injury from an agility test arose out of, or in, the course of employment such that workers’ compensation benefits should be awarded. In contrast, the issue presented to the pension board was whether the agility test was an act of police duty that inherently involves special risks such that a line of duty pension should be granted. Accordingly, although the Commission awarded Demski workers’ compensation benefits, Demski was not entitled to a line of duty disability.
In light of the Portincaso decision, pension boards should carefully review any discrete issues determined by the Workers’ Compensation Commission, and consult with legal counsel to determine whether the issue presented to the pension board is identical or not.