name is thomas roger on behalf of firefighter gary williams and would like to reserve five minutes for a bottle of it which your honour's this case involves a fifteen year veteran of the morton grove fire department i was forty two year old firefighter who was injured in the line of duty on september twenty sixth and aggravated that injury the next day on september twenty seventh while at work in two thousand and three he says his next duty shift is you know firefighters work twenty two days off in this particular notified he had firefighter williams immediately fill out an injury report which he did a two page report which was contained in the record which outlined what happened on both of these particular days with his shoulder that she sent immediately for treatment advocate health center which is a fire department facility that they'd normally utilize within a day of that firefighter williams was seen his own treating physician who had injected his shoulder with a cortisone injection for the pain that for windows offer a couple of weeks he return to work full duty october fourteenth of two thousand and three and work full duty up until the time of his first surgery in march the fact that firefighter williams continued to work through this injury in that village in the board will say well he did he really during his testimony so the firefighter is disabled and the reason is because yes frozen shoulder and he said kept capsulized us was the medical term for it and he said i would defer to the treating physician as to what the cause i don't know what the underlying condition is with the shoulder because i can't tell because the shoulders frozen but i would defer to the treating physician who is dr slander that this was an extension i think was the word that dr samal use an extension of his work related injury so i cause or any other work or your injury other than at work i guess is that is the best way to put it there is no evidence that the firefighter had a head injury to shoulder while doing weight lifting as the village on the board may point out or that he was in basement however if he was trying to get back to be a firefighter that's what he did and it was this wasn't a real injury his shoulder was still sore he was in physical therapy at the same time that he was trying to lift weights and get back to being a firefighter no this his work injury wasn't caused by his injury but the other five physician i think even dr samal when you read his his testimony carefully they all say that this work injury is what led to the two surgeries in march and august back to freebird is  and initial reporting on or that's what he does say but when he testified before the board he admitted that when he tripped when he did his report that that that that opinion was pure speculation that he didn't have any anything to support the fact that he thought there was some subsequent village earlier there's inconsistency i haven't seen with those in consistencies are me other than them saying what he was trying to do too much in physical therapy or or by exercising the shoulder i don't i haven't heard any explanation from the board of the gist of what the inconsistency between the firefighters williams explanation and the actual injury that resulted from the the work injury didn't didn't the board hear testimony from doctors sexually keda falling into two but he testified during the hearing that you know there really was a slap here it as at least as early as february of two thousand and four and the slept there it wasn't diagnosed until that actually waning from ended surgery on this individual so for the doctor to say you know it had to be something else and it resolved within three weeks without the benefit of an m r i or some objective medical let's just wish it was sure it would appear early and was good enough for the border you know i mean how  the heard individual the other ninety percent is from looking at how the injury occurred and then makes up ninety nine percent of my opinion that the favored never looked at the individual never looked at fire fighter williams and didn't have and didn't know what the mechanism knew some of injury was the board casserly says well we chose same ole and dr freebird because they analyzed the mechanism of injury both of those doctors testified specter says i don't have the initial treatment records and wasn't sure what the mechanism of injury was and sort at page eighteen twenty two of the record i don't know what the mechanism of injury was if he was using proper mechanics using his bicep muscles to lift the patient then you know this injury would never happen the way he described it firefighter williams testimony and how they decide the facts because again it's really hard for us when we turn it back you're making a very clear argument here that we in this specific case we should not rely on the board because as you suggest that it was applicants before patch of course you didn't see villages intervening because there wasn't the crowing decision by the supreme court where they said to get to get health insurance benefits for you in your family you have to show your catastrophic we entered catastrophic  it really interesting stickney that the facts play out that the board communicated with the village and asked the village if they wished to intervene and the village did don't relate and they give a reason that the the pension board can't educate when they sing we're worried about health insurance benefits and if you give them a liability disability we're going to be affected our budgets going to be affected we have to pay for him and his family for the rest of his life analysis is instructive on whether or not they're exercising due discretion and simply loving texas like i don't think would be enough to enter to intervene in any disability application process is unless they can becomes an attorney attorney or question him he presents the evidence they do a fact finding and they decide whether or not he's met his burden to show that he has sustained a duty related disability in this case it turned into the village first diversity have to camp in the village on one side arguing to other was able to show prejudice here because the fact that the village came in and argued to the village attorney the mayor of the village treasurer that you know your decision here keep an eye towards the village and you're always going to have that stuff isn't that if you can't catch testify to we have here the way these boards are legislatively constructed there's always going to be this tension between the appointees now let's say of the village or the specific individuals th but this has nothing when i could have anything dealing with that health insurance that you talk about i'm instructing the board members to disregard anything about health insurance we can't decide health insurance if you have relevant evidence regarding firefighter williams disability would allow you to present it and you agree that if there's invention and currently we're moving towards a way we're going to see a lot of this happening in the future if the legislature has set this up that there's always going to be this tension between the intervene or remember i think if the board stuff's appropriate guidelines the intervention and the board's attorney here said that during the hearing this you know in the future we should have some guidelines for if the village intervenes as to how we're going to handle that so it really what you're concerned about is not a big general  you're concerned about what happened here fire department the village has a report saying he's not fit for duty and then he's in that area fit for duty in the pension board saying we're we got to find whether or not he is fit for duty in the village comments as we have this report we'd like to intervene as a party we'd like to have  as much discretion courage to do whatever we want here we have a seven x here's what we're intending on doing we're going to call this witness we're going to give this evidence i think that would be ok i'm not seeing that before the board allowed the bills seem to be correct but there was a there was a pending application so this isn't the part of your complaint that they should not be a part of your issue that they should not have been allowed to intervene in the first place because his  said she had already formed an opinion regarding that evidence how do you know the answer provided to every point voting against the plaintiff i think is oh it she didn't agree with it when it was all done but this is one of these people take an oath that they have to listen to the village that might be ok but here is an attorney she has taken an oath to zealously and we represent her client who's the village and then the village now becomes a part of these proceedings and advocates you to that sa may mean it is possible maybe it and i'm just not aware of it but i don't think that's an area will happen before i don't think will happen in the future although it is certainly possible a village attorney may be appointed by the mayor to sit on these funds in the future i think that's why this case is important that your  stake a look at it and give some precedent or some guidance for the boards to say if you're a village attorney in the village intervenes and argues in front of you i think you're it's prudent for you to step down and not judy kate yes there was this was a case where there was eight people deciding this matter  you know i've gone over the first three issues that i've asked this court to decide that one is that this case against the manifest weight of the evidence i think if you look at the all the doctor's opinions that were presented in this case that it should be left with no doubt that the injury sustained its a temper of two thousand and three was a contributing factor or two firefighter williams being rendered disabled was a contributing factor to both the surgeries and that's what caused him to be disabled i think if you look closely at the reasons aboard the village here for why they relied upon dr freebird  and that the board had affected firefighter williams due process rights by allowing the village to intervene and at the same time allowing members of the village and especially the village attorney to sit is the trier of fact in this violation of firefighter williams due process rights and if i can very quickly i'm going to close however i think you have to look almost at the intervention in the next official members on the board to gather that when you're deciding whether or not a due process violation occurred here justice brought up maybe that will always happen but i don't think it will if the board takes due care and takes a look at the interest of the of their the people on the board and if there is a village attorney who's taken an oath to of today and i thank you for having read from its record it's clear that you did do so and i thank you for that because there are two parties that are interested in the same side of this matter the attorney for the bills julie can i will divide the argument into two issues i will from your questions already today you understand that implicitly it is a very high standard to surmount as the marconi case noted and with that i think that even where there were conflicts in this interest in that in the evidence that were there was presented to the board they have the duty and the obligation to resolve those problems and come to some conclusion as to was this related to his job i think from your questions that you had in th it was clear right from that on inception that you know that there was a lot of credibility problems involving this firefighter and it started with the injury that you reported in september you identify quite a few of the problems that started with not knowing what day the injury occurred it required to be repaired but where we were able to eliminate is an ambulance call that may or may not have contributed to the storm has and the sprain that he suffered in september did not rise to a cause it may have made symptoms of that shoulder temporarily problematic for him but they resolved which is evidence by the fact that he returned to work for five and a half months without instead and engaged in actually quite a bit more which way this is the fruit i mean they argue that he was the conscientious firefighter had been other causes the my i think if there is anything else other than speculation do you have anything else that this man in who to sell anywhere else other than on the job i think the other big piece was the weight living weight lifting incident in the right now and i think you're absolutely right there's no other evidence other than we knew he was a weight lifter and he was very he was not forthcoming with the board as to the weight lifting issues and that's when we get into his attendance at the pollies health club the fact that he had weights at his basement that they want to make us prove something that is just beyond our abilities in a conscious our mr erin i need to reserve some time for my colleagues i think i'll set aside and let her address the other issue case for this particular village is there may have been one other matter in which the village had entertained and i believe that there have been may have been one other subsequent to this one before that i believe they there were a lot of medical opinions there was a lot of confusing information and this individual had to claim to any injury early on and had had multiple surgeries and had never return to work from we needed one interest in the end intervention and we also needed to show what we would bring to the table so to speak what we could add to the hearing and the interest of the village here our word the fact that there was a claim for duty related i mean not the extent of the financial interest that the village would have here and again i as i noted there were also some questions about it and i'll meet with you're saying the village has to show its interest why because the village interest in certain cases is greater than in other cases for example when i financially greater yes and certainly when the public safety play benefits and benefits come into play we're talking about potentially a cost of a million dollars to the village as opposed to a lesser cost if it's a non judy related pension so here we had a claim for a duty related pension we had a claim with the psyche a situation that was going to evolve into a claim for public safety employee benefits tax health insurance benefits and you had some tough questions created about the entitlement in this case so those three factors caused me take it did not have all of the indian nation and present evidence on behalf of the fire her we weren't sure at that point we had some evidence that we were going to present we did not know what position we were going to take a review of the record on the wall argument which felt that we did not take a position as to whether we were going to say he would come in this disabled not disabled whether it was duty late related whether was not to be related our interest was in making sure that the pension board had all the be but they hadn't planned on doing it and there was no indication that they had planned on doing it we didn't know if they were going to delay but we also indicated that we wanted with the right to  that our interest again was in having a complete record where there are some questions in our mind about whether or not fire fire lines was entitled to a doing related disability pension certainly there's no question about that but there are sometimes aren't you know that does occur but once you gather all the evidence sometimes you make a decision that that is not the case so at that point there were questions the village had an interest that's why it needed to entertain to an effort to supplement the and develop decides that he's going to take the evidence that is going to be tired to her as the decision maker and give it to you is that right she gave me in to whether the documents were going to actually be presented as evidence was still up in the air because it would be subject what within those documents said maybe somebody should look at this to determine whether the bill should ever be she did not suggest intervening she did not to rat the village to intervene she was not involved in the determination to intervene she didn't even give the documents directly to me she ended up getting them to someone else to get to me we had no discussions about it my task was to review the documents and make a determination  for example disciplinary processes in you have a hearing officer i'm hearing a disciplinary matter and then you have another attorney working for the city that's representing the city as an absent head in the same well due process under the constitution and violation of the procedures i mean and i think we have to go back chill you know right what happened here because i think that we are you know well they asked questions they asked to have witnesses called that they moved for deadlines and these included the firefighter representatives as well as the other attorneys the mere fact that this individual's happened to be an attorney does not change the fact that she sat on the same playing field as those other individuals in this case she was not acting as an attorney she was not wearing her attorney hat i mean you don't technically take it off if she was not wearing her police representing the beliefs a centrist and so i don't think that i really needed any assistance and in that regard myself i believe this she was acting on behalf of the pension board and so perhaps it could be considered advocacy but i do not believe  the village identified both an interest in the intervention as well as what it could bring to the table moreover particularly with regard to take intervention if our mr up williams has not shown how clerk which the crankcase specifically said it wasn't but why it would be not be a conflict for example for the fire chief who had also responsibilities or finances and knew about the case on so again i just want to dress the the due process issue i think your honour's have to look at this is that the totality of the circumstances here it's in it's interesting this was part of the record there was no dispute over firefighter williams worker's comp and if it's he was he was paid for all his medical she actually made a motion to bar evidence that i was seeking introducing that evidence was an ecosystem point that firefighter williams had filed against the village presumably mrs listen was involved with that as well as a village of their attorney so she certainly was an advocate on behalf of the village in this say first of all i think you can't actually just say that you agree with stickney that there is the discretion to allow intervention by the village and maybe it can be as broad a create conflicts with we're numbers who clearly work for the village anyway we aren't right so now it sounds like we're down to the villages so the question is what kind of ruler  attorney can never sit if there's if this intervention or miss liston here went beyond what her role should have been and what kind of role think it's an actual question i think it's probably a combination of a number of those things much i think the board has to exercise due care as i think the signatures already says an intervention and if there is an interested party that can her check his neck that change i don't see i don't see those kind of cases i think the rule would have to be do care has to be exercised and they have to ensure that there were still remain a fair and impartial hearing by the members on the board when there is the village is reasons for intervening and why their intervention would not cause it to process violation for the applicant to them for seems i don't think it's difficult to do it as counsel mentioned this case there was briefs that were submitted there was extensive argument before the board i think the pageant work that out when there's an intervention person petition that's presented to the board in the term before the proceedings start whether where the interests lie and whether or not there would be a potential due process violation of them as to coming up with a general rule you know i wish it i had given that more thought prior to today if it's difficult to do but i think you have to ensure it's exercise with due care and that there's going to be a fair and impartial proceeding after the petition is granted when the ex made to exercise their discretion when i already mentioned the mis listen i think was that was the most egregious person here as far as being an advocate for the village and really what the problem with due process here is i think this was about money it was not about seeing that there was a fair and impartial determination of firefighter williams disability it was about saving the village from having to pay life insurance or health insurance benefits for firefighter wins that was made clear from the outset and in the briefs and that infected the entire proceedings from going forward because you had the treasurer on the board get the mayor on the board at the village attorney who i understand they're supposed to work two different hats and be fair and impartial but when you have the end of the village attorney advocating that this is going to crush millions of dollars if you give a lie to disability it was an end run around there was nothing restricting the village from conducting their own hearing if and when a firefighter williams apply for pacy to see the benefits with the village they could have made that the terminate as to whether or not that individual's catastrophic we  do another separate hearing on that issue so clearly think there was a due process violation on behalf of firefighter williams or if i could briefly i want to talk about the manifest weight that i'm sort of a very quick you brought a good point i just want to address is that i don't think were able to point to any evidence to demonstrate that fire for limbs wasn't hurt anywhere other than work thank you for touch upon that that was clear there was a slip there president he had the surgery he worked up until that surgery so good firefighter should have been awarded line of duty disability benefits we