fire hose was dragged for one of two blocks with severe lower leg injuries he wouldn't do disability which was approved by the board and remained on duty disability the remainder is life which was ended past the fact that the pension is a creature of statute the statute does not provide that the section survives doesn't that we're certain and we're also it appears that the survival statute does not include this type of an action so how does this claim survive or that that's the stature it is a result of the collective bargaining agreement between the union the city of chicago which provides for pension the pension code regulates the c pension between the pensioner in the city of chicago is that created the the right to a pension is created by the collective bargaining agreement codified by statute to carry forward also a pension  public and this is a public pensions opposed to a private pension the public pension is protected by the only constitution it's basically a contractual relationship as found in the on time but the underlying issue is whether this property interest survives the death and in the rule twenty three were this court board was her estate some months after she died ten months after her death was spent the justice heiresses question since a survivor it doesn't provide for what case you have what what do you have how does it survive i over by survivor and the pension plan doesn't provide for under what state you can you proceed can the state come in and fight over pension ok b if i can continue barry to part you do what has been cheated by the the pension board i don't think you want to find that written into a statute the question is what is the nature of the claim abatement addresses the nature of the claim that's the crux of this case what is the nature of her claim is it as some suggest simply under section six one for the pension code or is it something more the case law says that a public pension is a property right it vest down because to claim if it's a contractual claim in the nature of a contractual claim it survives and why do we have survivor while the survivor rack allows for the survival of common law actions which include patrick claims this is that's what this is this is a contract between the city of chicago and a firefighter in a surviving spouse they pay into that into the fund to get this pension it's a contract it's plain and simple a contract i mean if this was a lawsuit against the metropolitan insurance company it would be and it would be a hands down with evolution because it's purely a contract this like rice is a contract it's not a statutory claim to me it is regulated by statute but it's created by the collective bargaining agreement and the only constitution protected by the on know its her daughter daughter so it's our position that you know the action was felt prior to her death if you look at the nature of the reaction the type of pla that really is it matters not when it's filed it says if i had a contract with a person very big on the contract i die my state can bring an action for breach of contract this is no different it doesn't matter that i passed the crane survives the death it's a common law claim in the nature of a contract action which survives the death i believe that i ran through my time appellant what haoles the first is as you've pointed out allowing in a state to come back thirty years after a benefit was granted to complain that it was miscalculated for eight nine intended and then told them that they would have to say i have basically an application form to claim and that's and and so this was vested in the deceit and this this get the benefit and she was appropriately the bird took the benefit they ask and then appropriately when the legislature changed the rod ninety five they notified her if they act and said you can apply if you want to but me answer your question your honor you know first of all it was the appellate court decisions in predominantly pro to cheat and the barry case that brought to the birds attention in the fund that windows whose husbands died while in disability even though they died from a completely unrelated cause could be eligible for the benefit now it's important that it's eligibility then the plaintiffs an appellant's indicate basically this is an automatic benefit that you know it's in the record the permanently disabled they would never want back it's an entire time that it is not a vested benefit in fact the language in both case and the barry case make it very clear from the appellate court that there's a burden of proof here that they have to come forward that this was not meant to serve as a life insurance policy they have a bur that a fireman could come back to work that's part of the statutory structure that the legislature put in place nobody gets permanent disability you have to be reexamined if the medical evidence supports it you can stand disability so take a very strong positions on this but has been told by the words that their position is that you correct and and that's what every two is saying right now is and so the point is it's not this when you talk about something this is this was offered to her as the as the other widows on the people who went out of the monies that should have been paid before and were not and the only thing that stands between this money going to beery they have a burden of proof to present medical evidence to the board sufficient to show that the husband could never return to work there it's in those cases that's a requirement now in every case you mention every one of the court had with the notices state based said that we didn't give them to process notification that we were denying a benefit instead we just heard from well here's the benefit we're granting you the second case is everything bury remember is a question of retroactivity every case is a fall barrier do you pay back to the date of birth to cheat or do you go all the way back to the husband stats so those cases are really a little different but even in so the problem that the court had with the birds procedure is was the nature of the notification letters were simply at requiring these people to come in and present evidence indeed it would be totally inconsistent we agree with you i agree with you it's only meant for those weirdos who can prove through medical evidence and testimony that their husbands were permanently susceptible let me assure this head has no greater rights than she had ok she never made a claim for the section six one forty benefits she never made a claim i mean that some disputed she was mortified she didn't make a  claim in here and that's with good reason because the pension protection clause protects the rights of participants that is members who when they joining when they join the pension fund and paying their  or the firefighters that's it that's a totally separate issue the pension code stands by itself it was created by the legislature to turn and how benefits are to be paid that's the right that that either the wood or the participant moves under to get benefits it has nothing to do with the contract between the police department and the city that doesn't treat pension rights that just says here's what we're going to paying for here's the the work rules and so forth and so on nothing to do with pensions so the argument that this is a country actual rate is simply wrong it is not and it's not vested because she she may have a leg to apply for the benefit of grandchildren that's a due process right perhaps and she wasn't tonight that that's not the argument but she does have a right to that pain of a benefit she has to prove under the pension covered that she meets the they apply for the benefit if it's not an automatic right and the bird was careful in the letter to say you can calmly you can present evidence you can appear or you can not appear you can have a lawyer the standard you know due attachment statute judge two thirteen which we argued and which judge hyman rightfully pointed out indicates the intent of the legislature that these benefits are personal and nature and do not survive because it has language in  then make his determination so i don't think it was a thank you thank you  says that a widow has to file a new application and the the opinion states that the widow must demonstrate the common c of the injury ok what happened illustrative to figure out the to look at what happened what the boy did after that decision there were it there were some thirty some widows and i represented some twenty plus of these weapons none of them presented board look if they are permanently injured they're entitled to this money the board knew they were probably injured because it had prepared a list of bad where would those whose husbands died go and duty disability and sent them the application forms and when they when they got the application forms nothing was done they simply granted them the pensions under section one forty no evidence was presented no evidence was heard nor would the body appear it was done by voice  claim was for statutory prejudgment interest it was a different type of interest prior to bell being decided the supreme court decided to saka this version that the police board which wiped out statutory pre judgment interest in this case in these types of cases so therefore bell being only statutory pre judgment interest was nectarines it ok well it had raised the question of equitable pre judgment interest that statutory pre judgment interest and the pension benefits are vested benefits so to suggest that this would or did not have a vested benefit is really not for rob furthermore evidence and the put simply be viewed the files found that all these firefighters had been regularly and routinely and repeatedly found to be probably disabled and granted the benefits to all these widows here the only difference is no application was well again we're broke we're confusing it's i forever this is no different than that and to treat it differently is really not appropriate it is a contractual claim that's what she had that's what she has and that's what the state brought it seems to be