the first case on our call this morning is agenda number fourteen case number one all sex ninety seven sex with realtors ocus versus the retirement board of the police in new orleans benefit fund of the city of chicago also board that she was disabled within the meaning of disability as defined in the pension code and the second issue is whether or not by virtue of the fen sons the words she was me the payee pre judgment interest with regard to the first issue a police officer after being on the medical leave of the chicago police department for a period of three hundred sixty five days exhausts from medical leave there is no examination made by the police department there is no finding of disability the police officer after the exhaustion of the medical leave is returned to the pension board and the pension board by virtue of the pension act as the original and exclusive jurisdiction to hear the officers case and determine if she is disabled in this case without going into any detail the board ended up by finding that maria because in this was not a credible witness that the doctor who testified with his vacillating testimony as to the cause of her disability and the fact that all of the independent medical examinations and testing done were unable to show any objective findings and in the boards you know we found that maria because of the exhaustion of three hundred sixty five days just turns you off sir loose and says you're usually exhausted your time present yourself to the pension board and they will determine whether or not you're entitled to a when i when you look at the case of beauty i think that case the federal court case when they set out some one of the protocol because in that case they held that the pension board is not obligated to wait until the police department decides what they're going to do with that office in deciding the case what happens is the pension board decides the case the officer under a duty day has a right to seek a return to work which the police department cannot refuse and if the police department at that time the term ends had the officer is disabled and will not return or to work by virtue the we have to determine what is the reason they won't return to work is it the same injury which brought us to the board brought her to the board and therefore we may have to consider whether to grant her a duty disability benefit because they won't return or to work or do they find that she's recovered from let's say the hand injury that she claimed was disabling and now she has problems with her liver or she has other problems and the board at that bind may say well she's entitled to an ordinary disability benefit because she is exhaust three hundred sixty five days on the medical rolls the officer is advised by the police department which is no longer going to be in receipt of salary and that she has to her claim is then has to be presented i i don't i i really don't know the answer to that except to say that that is the protocol in all cases that you cannot come to the board prior to exhausting your medical leave time with the chicago police department well i see the board has always taken the position no because if we feel that she can if a medical the stablish is in that she has not proved that she disabled she should return to work we cannot pay someone a disability benefit if we don't find them disabled she would so station for the police department seems to have this this thing out there in the air that unless you walk in with a doctor's note they won't examine you which is kind of contrary to what putin has said because they can't refuse you the opportunity of returning to work so it would happen here is if the officer went back to you or tried to go back to work because it's not the function of nothing that shows that you you identified any position knowing that's and that and that i do not believe is our function if we find that she's in the act disability i think this is the key that in my view own situation the disability provision in the act says the inability to perform any any assigned duty within the police department it does not say dead disability is required to find that the officer cannot return to the same position or the i like the position it's that she's disabled from performing and she was found not disabled because of the complaint of oh she was found to be disabled i'm sorry by the police department and they refused to return her to any job whatsoever the matter with then be back before the board to determine what benefits she should have be it generally because it's the same injury she claims disabled or in the first officer to show that she is the symbol from performing any function and place it on the birth to say now we can't find her disabled unless you find that the police department doesn't have a job in in the practical world i would say i seen a lot of officers returning to work in functions other than they had when they first became before the pull of the for the pension board for ah i do not know in all honesty the functioning of the medical section of the chicago police department but it would seem to me that the the legislature who creates the pension board gave to it exclusive jurisdiction and it did not say to the pension board you cannot act unless you prove that the judgment interest might be i'm known issue but it is an issue that has to be addressed because there's a conflict i believe between the fifth district of fenton and the first district which is to follow fenton and the third district which in the bassett case which basically says that the police called is not another or other instrument of writing and therefore subject to section two of the interest act now i i want to tack and i want to direct my attention to the phantom case because i think that is the case in which all of this foundation for later decision seems to have been built in the in the fenton case we're dealing with section two which i or other instrument of writing the fenton court went on to say that the pension code is an instrument of writing well there i might say i'm that fully aware other than an oral agreement i guess just about everything is an instrument of writing so if that was the by word of this whole case and the case was to be so broadly construed well just call it something a contract doesn't make it a contract for all purposes but the pension code is it's been found to give officers a vested right in seeking a benefit know i know my time is pumping here i think so i want to go quickly if i can on the federal court then went on to say that to try and find solace in the fact that their example they said covered well they are different because first of all bonds bills and all its our agreements negotiated on a one on one basis between the parties as to the terms and conditions bonds bills and no have dates in them when they are do they have certain promises of performances they have certain debates they have and they are different than that then the pension  i would like to just add quickly that the penciling does have certain interest provisions in it very limited interest interest in that it does not provide in the thirty forty fifty years of its existence any agreement between the city of chicago who makes this agreement and the police officers representatives who furries an agreement bring it to springfield the legislature and acts the provisions and puts them in the pension code the pension board the trustees do not pass legislation the pension poor is ideal it is the thing more than if i do sherry it's a conduit it takes the money that the city puts in it takes the money that the police officer puts it and at the students it in the manner in which the pension call tells it to distribute it it does not make money it is not a party money it is not even a third party beneficiary because it does not receive anything and part of any profit all of the monies that come in are for the benefit of the people who are there  and so when there are consequences i would say there is this this isn't the board should not be bound by the interest act but what should probably be more logical to me is that if the you know the case was decided a manifest weight standard and i do believe under either standard our position is entitle to prevail given that i would like to see also would share the for this court absolutely and that maybe i should start i'll start on the interest since that's what my my opponent finished with the kind of shift things around here the interesting issue the fireman's fund in two thousand and five but what also happened in two thousand and five and i believe one of the reasons we're here today is the basket case and the basket case came to us i believe within several of the denial by this court of the petition for leave to appeal in the barry matter this court had denied the petition for the if and then several weeks around that denial is where bassett shows up out of the third district unfortunately no litigant in the basket case filed a p l m so by my client in her case wind up here on this interesting issue and it's a good thing because it needs to be resolved and i would point out the reason bassett needs to be at the the interest stack that section at tool five section two the words bond bill promissory note are followed by or other instrument in writing so they apply the principle of juice them generis to that phrase and they say that a pension agreement is not an instrument of like kind but i suggest it most certainly is because what well in a case such as this no and here's why i actually spent some time last night when i was studying up doing a little math on this case and computing the pre judgment interest vs the chicago police pension fund the pre judgment interest in this case and this will will be a stunning fakir equals approximately per their last estimate of what the worth of their fund is five one hundred thousands of one percent to say that this amount is the minimum this is kind of an insult to diminish this this is nothing in the big picture and as i see it she'd doesn't necessarily talk about public policy but she does she does in a way that she's talking about the fact that there is a period of time where the board has the officers money as well as the city's money that it's in title obligated to put in at their disposal prior to resolution now ostensibly that money that they're holding is making money well big because the courts have they have to go further there's only three categories of of the vehicles of indebtedness in the statute itself and the courts have gone further such as things such as contracts and insurance policies and things of that nature it has been it section two of the interest act has been expanded by the appellate courts of illinois into other  documentary vehicles of indebted that i don't know justice breyer in terms of the pre judgment interest question i don't know if they felt that there was a need to go outside the act i do know that this issue has been rolled roiling around since  it's been one nine hundred ninety one fenton was was decided and i don't believe there's been any legislative action to hear what's happened if i may i'd like to switch to now the beginning of my opponent note to return to work after tonight the answer to that unequivocally is yes and that answer is also provided not just by me here but by lieutenant thomas schadler who is commanding officer of the medical services section for the police department in that record he says i cannot return her to work and he will not so the answer is unequivocal there then your other question no doctor dr you poor and my client dr  dr poor is a actually a world famous neurosurgeon and really on the cutting edge of medicine and i think that's unfair and unfortunate but the the pension board wants you to he testified and what did he say he said i don't believe it would be prudent to return her to full active duty the pension code does not discuss light duty jobs it doesn't the pension says if you cannot perform the functions of a fully active police officer you're disabled within the meaning of the act that determination can shift with an offer of employment and that's what toronto was all about so there is no these medications narcotics but yet the pension board feels it's perfectly appropriate to have them carry a gun justice thomas asked what goes on in the real world with our officers and know i have a little bit of an edge on the board here because i also work for the officers union and i can tell you what goes on in the real world in the real world the the chicago police from does not make accommodations in the real world if you cannot shoot a gun in qualifying and walk unassisted you without a cane or any other device you will not work as a police officer end of story and that is how the department  this department will not put my client back to work just as burke asked what is the officer's responsibility that's his responsibility she remains on leave that since she has to comply with the general orders and directives of the apartment however as far as returning to work the department can it anytime force or into a functional capacity evaluation or any other medical evaluation it wants it hasn't done so and just you know in the same thing this ability once benefits are given is reviewed every year a doctor has to provide a certificate saying the officer still disabled i want to  the board the board never addresses like due to work and and i'm glad you asked that because i wanted to talk about i'm the person that that brings up the duty to case and i know just as freeman had some issues with it  i know it's not binding on this court in the the facts of it the legal theory of it really are rather relevant to this case the reason i cited beauty then is that the the federal court of appeals there construing this statute on proof of disability within the pension code and what that the seventh circuit said was that the pension board and the chicago police department both have interests in you know one in preserving their money the pension code and two in keeping this a you know officers it's safely on the street or off the street and the federal court urged them or told them that they should both be involved together in the process and what you saw with my opponent's argument is the continuing refusal of the pension board and the chicago police department to even communicate with each other they they have no communication whatsoever i can tell you that is fact now back to this case the toronto case  out of the first district which obviously controlled this case does not merit any reversal it has been good law for quite some time and it remains good law it wasn't until we arrived at the supreme court here that now would be now we see the argument that this is bad law and needs to be overturned and what would toronto really gave us is it gave us a nice definition of forgiveness mat and that's when the officer establishes at the board that she can't do the active duties of police officer we've got there and it also says that that can change if there is an offer of them of employment i also take issue with the argument that was presented earlier that there was abundant evidence of positions that's not true we can we can all read the record it's not in there i can't say pointed something because it dr you poor said well i you know she can't drive a car in these drives i'm not going to i don't want to carry a gun simple as that and the pension board just refuses to honor that and instead says it's a case of credibility between i really have nothing further to add except to make one comment and i think justice thomas was correct while the interest problem pre judgment interest problem in the matter of maybe slight maybe larger i don't know i'm not a mathematician and i didn't spend last night trying to calculate it like my opponent did but any rate it is and does have a chilling effect throughout a logic and case ordered to pay interest pre judgment interest and i understand from talking to those kinds so that by the number of fire men involved that is going to be in the millions of dollars so pre judgment interest depending upon the given case can't have a chilling effect unless commented the this what is the pension act really there for the pension act is there to provide two officers a benefit if they are intitled to the benefit they are not entitled to less of a benefit then they're cases as what the economic damage may be to the fund because he got to remember that the fund is not there just for the officers who are in service today but the fund is there for the officers who will be in service model and this fund unfortunately and i forgot my accurate and say like many funds throughout the state many funds throughout the country i not overfunded they are mo likely to be underfunded and for that reason benefits should be awarded when they are due in the amount of to do and not murder than their due and nothing less as a full duty police officer i i cannot change that that's in the record obviously the fact is that that is not sufficient to establish disability i didn't define the word disability the legislature did and the legislature elected to find it as the inability physical or mental incapacity to perform any assigned duty it does not have to be under the legislature's definition a full duty street fighting combat a police officer or counsel if if your doctor reached texas he said you can't change that conclusion if he's not able to return to work my question full duty right is there any medical evidence in this record that she's capable of returning to work yes there's nothing wrong with her there is only one i really question is their medical evidence and what medical evidence is that what now is there every day there's every test that was performed including dr spencer who i believe made the statement something that her pain may be aggravating but it's not incapacitated ok my question is this that doctor any doctor testified that she was fit to return