by Michael Weinstein (Spring 2016)

Does participation in a police department’s physical fitness testing involve a “special risk”? If an officer is injured and subsequently disabled as a result of participating in such testing, is he or she entitled to a “duty disability” pension? These were the two questions that were before the Illinois Appellate Court in the recent case entitled Swoboda v. Board of Trustees of the Village of Sugar Grove Police Pension Fund, 2015 IL App (2d) 150265.
Thomas Swoboda was employed as police officer with the Village of Sugar Grove. On October 15, 2011, Officer Swoboda participated in physical fitness testing conducted by the Village Police Department. As part of the testing, he performed a bench press. Asked how much weight he was required to press, the officer responded, “It was a certain percentage of your weight. It was probably 200-something, around there.”

While performing the bench press, Officer Swoboda suffered an unspecified injury to his shoulder. Physical therapy and two subsequent surgeries resulted in only slight improvement, and ultimately, Officer Swoboda was unable to return to work as a police officer. Subsequently, he applied for a line-of-duty disability pension.
Based upon the evidence before it, the Board found that Officer Swoboda was only entitled to a non-duty disability pension. Officer Swoboda appealed the decision, and the trial court, acting on administrative review, upheld the Board’s determination. Officer Swoboda further appealed the decision to the Illinois Appellate Court, Second District.

Relying upon the earlier Illinois Supreme Court decision in Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill.2d 533 (1997), the court concluded that the outcome of the case revolved around the definition of “act of duty” found in Section 5-113 of the Illinois Pension Code (40 ILCS 5/5-113). Thus, the court began its inquiry by observing that there are two prongs to the test for determining “act of duty”: (1) the act must involve a special risk “not ordinarily assumed by a citizen in the ordinary walks of life;” and (2) the act must be imposed by statute, ordinance or police regulation.
Testimony before the Board failed to provide a conclusive answer as to whether the physical fitness testing was a mandatory condition of employment imposed by statute, ordinance or police regulation. On the one hand, it appeared that the testing was performed pursuant to a collective bargaining agreement between the Village and its officers. On the other hand, the officer who conducted the testing stated that he did not know if the testing was mandatory, and he had no idea what would happen to those officers who failed the tests. In any event, the Board never reached this second prong of the “act of duty” test since it concluded that Officer Swoboda’s participation in the physical fitness testing did not involve a “special risk.”

Similarly, while the court briefly addressed the competing arguments with respect to the second prong, it ultimately agreed with the Board that there was no need to decide the issue since the bench-press test did not involve a “special risk” as defined in the Illinois Pension Code. In reaching its conclusion, the court engaged in a de novo review of the statutory language, as well as relevant case law, and concluded that the phrase “by a citizen in the ordinary walks of life” is a single prepositional phrase. If a particular risk is one that is ordinarily assumed by such citizens, it is not a “special risk.” Since citizens in ordinary walks of life engage in weightlifting, the risk of a weightlifting injury cannot be a “special risk.”
Thus, the court concluded, while “the definition of ‘act of duty’ is not strictly limited to activities involving the protection of public safety, it is not so broad as to embrace physical-fitness activities in which individuals in ordinary walks of life participate.” Therefore, the court unanimously upheld the Board’s decision denying a “duty disability” pension.

So what is the takeaway from this decision? Well, that’s somewhat unclear. What seems to be clear is that a disabling injury resulting from an activity in which individuals in ordinary walks of life participate cannot be classified as a “special risk.” But what about the cases, such as Johnson v. Retirement Board of the Policemen’s Annuity and Benefit Fund, 114 Ill.2d 518 (1986), where an officer slipped and sustained a disabling injury while crossing the street to respond to a traffic accident?
In fact, the court considered the Johnson case and noted that “an officer performing duties involving special risks will be entitled to line-of-duty benefits even if the immediate cause of injury is an act involving an ordinary risk.” The key to this conclusion was that Officer Johnson was performing a duty (investigating a traffic accident) not comparable to any civilian occupation. Similarly, in Wagner v. Board of Trustees of the Police Pension Fund, 208 Ill.App.3d 25 (5th Dist. 1991), the officer, while serving a notice to appear in court, fell through a rotted plank on a porch. Again, the officer was performing a duty (serving a notice to appear) not comparable to any civilian occupation.
Yet at the same time, the court also noted that not every job-related activity constitutes an “act of duty.” Thus, an officer performing clerical duties when disabled is not entitled to line-of-duty benefits. (See for example, Morgan v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 172 Ill.App.3d 273 (1st Dist. 1988))

Additionally, what if the evidence clearly showed that the physical fitness testing was mandatory and that officers who failed the test were subjected to some type of discipline? The decision in this case seemingly states that weightlifting can never constitute a “special risk.” However, in the context of a mandatory annual physical fitness assessment where the individual is lifting a required weight, could it not be said that both prongs of the “act of duty” test have been satisfied?
In the end, the court in this case agreed with the conclusion of the Board that the risk of injury while lifting weights is not unique to police work and, therefore, was not a “special risk.” Nevertheless, such cases still are decided based upon their own specific facts and there still does not appear to be a single “bright line” test to determine what constitutes a “special risk.”