the city of charleston in two thousand and five he was injured while on duty on the summer seven two thousand and eight when he slipped in the employee's parking lot injured his hand and his shoulder eat prior by the plate it was filed on january twentieth two thousand and ten for a line of duty under one hundred four point one of the pension code and alternative non duty one one four point two but the pension code hearing  two thousand and eleven and again on july want two thousand and eleven the board denied the request for the line of duty disability and granted the plaintiff a non duty disability considering that he was disabled the circuit court reversed the board's decision under the clearly erroneous doctoring we would accept for the sake of argument today that the standard probably is a fairly erroneous doctrine however i would state also that the facts in this case are the focal point once are determined the the capacity issue dealing with the application of the century i think will be readily clear legislation in this matter the statute that applies number one the line of duty disability and the pension code one one four point one and nine duty is one one four point two under one one four point one the statute provides said if there's a disability resulting from the performance of an active duty not merely that happening on duty but an active duty the line of duty disability and we look to the chicago code which is article five under one one three which he finds the term active duty now that term has been grafted onto the line of duty probation under the article three pension code that provides that it's an active police duty inherently involving special risk not one ordinarily assumed by citizens in the ordinary walks of life we look to the how that all comes down to the issue of capacity what was his capacity of operation of service at the time of the injury the board determined that at the time of the injury the c com dispatch had cleared it was normal ritchie nothing else pending these had been suspended at that point of time and the injury occurred as not under the application of active duty stature but also wasn't there contrary evidence that sergeant peterson reassign been clear and the understanding by the board is that this was merely a shop for the with like for a copper shop with a cop which is a request by the chief to pick up supplies for disadvantaged children now the board's not arguing with the point that the dispatcher if he's on patrol would qualify the question is did the dispatch ceased of his patrol duties and when he entered the station at that point of time when he was injured and we believe under th under the cases that i have been adopted and the jones case of course is a primary case within this jurisdiction but back case also reconciled its decision it with approval with the dorsey case of the second district and also with the fill scrub case of the both of those cases where injuries had occurred while on duty but were not considered acts of duty you reference just not on this also you read this shop with a copy of program and you indicated in the as to what the state of the dispatch was what he was told why he was told or what he was told to i don't think that there's ever been any statement in the record indicating exactly what it was with the exception of the applicants the plaintiff testimony well the counsel that page twenty six of your brief how do you explain your statement well moreover the record here and it is clear that the nature of all the cases was merely a request by the chief to pick up supplies or shop with a but the dispatch the question came down to actually what was the nature of the dispatch and the procedure involved and that she calm basically indicated if there was an emergency or any communication by the applicant for the plaintiff it is not on the check and anything that was stated to seek out would be noted on that ticket and they reviewed that tech and said if that was not there go ahead ok the only evidence that really supports the player's testimony is the handwritten statement that was produced as a exhibit nineteen which being the original and the plaintiff repeatedly testified before the board that that was prepared on december seventh on the day of the accident within one to two hours after the action had occurred he didn't state that once he stated repeatedly when he was the first time that that statement appeared actually before the board even though a request for production was filed a year before that statement first appeared at the time of the here and nobody ever saw before that time so the board members had a question if he prepared better on december seventh why did it say on that statement that  credibility to that statement as far as the handwritten statement and basically thought it was a fabrication that i was not prepared on december seventh was probably prepared in anticipation of a hearing in this matter was there anything contained in that statement that was merely corroborative the matter of where he states that he urgently returned to the station that he was concerned about the criminal activity in the area etc that is stated in that statement that is the only documentation that really states that if through the decision of the board out is clearly erroneous made a statement in the decision indicating that the board found no capacity in which the plaintiff was operating when the board did find capacity they said that the capacity did not rise to the level of an active duty as required by the statute the court also failed to review the whole record as required in the marconi supreme court decision in support of the board's decision the court provided no deference to the board's finding well with all due respect your honor if you if it was stated it's a belief that he did not consider that he understood the standard review so i'm not suggesting that he  he was on duty they were at a light and he was rear ended by a drunk driver he was injured was found not on duty and the courts sustain that if you look at the fill struck case also first district case there's a police officer who entered the receipt of the squad car in the parking lot the driver bed vehicle put it in gear and ran over his foot disabled but not on duty disability the morgan case injury when the police officer is making out a report falls out of his chair basically injures his back not on duty so in this particular case the court pines that mr abrams patrol duties have been suspended at the point of time that he entered the parking lot and exit of his vehicle then there's no other conclusion in this particular matter but that is a not on duty disability as opposed to a line of duty disability because he was not operating in the capacity as required under one one four point one i think we have to be very clear that when we look at the statute in the interpretation of the statute the legislature clearly intended that not all injuries which occur while on duty are entitle to the line of duty disability if that were not the case and we can just take the statute and basically throw it out say that everything that happens while on duty it's not a question about it you're entitled to a line of duty disability but that's not what the case law says in this particular an traffic enforcement regulations and preservation of social order of the peace by means of trolling in cars or on foot in the designated area with the officers account of the worst officers duties is drastically different than a patrol and it's the capacity like mr attwell states it's the capacity that's controlling here we know that in the johnson decision but what capacity which m was with regards to capacity just judgeship noticed that well what capacity was he acting he was a patrolman in the patrol was duty that time was the cold east side of charleston he was dispatched by the dispatch center by the city of charleston to investigate what we don't know and here they talk about that they knew it was shot for ca i would like your honour's to review whenever the cat or i have it open in front of me i brought it with me today this is what it sets twelve seventeen two thousand and eight twelve forty four thirty nine there's no employees know what he's talking about spoke to managers  this is not an active and they said well the call was over it so it was terminated if you read the testimony of the dispatchers it wasn't unequivocal as it says in the reply for a lot of quibbling says this is this is would look like that it was completed at the time but he doesn't recall the actual call his remembering the stuff because it happened two or three years for that we did investigation just to find that adam rozelle and this lady  duty that time so we can try to get this report sergeant peterson testified that he tried to get report he couldn't find after the hearing in march they sent especially the protective officer black to conduct an investigation who would then assigned another officer another protective in the apartment to run an investigation whether this cabin or to this they found well at that point in time i said well that's a great house and we know there's a dispatch call in the story it should be conclude w dispatcher had been clear do you agree that you know that this patch this patch it cleared the call then the injury that was supper by the officer afterwards would not have been an active duty or cross the police in that case the first district case but at that time and off of this specially gas station very similar to this situation but he was looking for a missing juvenile when he arrived there level here today that this doomsday theory that if officer england's actions was considered an active duty then every active duty that a patrolman may be considered on duty disability benefits that's just not true you know the troll has more responsibilities out there but we still have the past so one of the questions when i was preparing for this was to say well my question would be well tell me an instance where a patrolman wouldn't be considered on duty in considered on duty to school benefits when i came up with what i would argue that that would happen with let's say officer england twelve thirty was eating lunch at a local restaurant he sits down capacity was different because he was in the process of getting work which didn't pose any significant risks to any i mean no additional significant risk to the turn that would affect the general public or whatever the language that particular case law states that he wasn't in any increased risk than the general public person would then but at the same time w know the johnson case i think sets it out as clearly as possible with the officer walking across the street slipping in a pothole or hit a pothole and he gets injured and they the court says well modality of him crossing the street and putting that in great arrest but the fact what is going on with that call he may have cleared it and said hey we don't have anything to worry about it case you right now but i'm still been investigated see why i was going to be out there common sense would dictate that if oscar mind would tell me go down to fourth and jackson and see exactly interview with this down there and i go down there and say they don't know what i'm talking about and i just sit on my hands and do nothing and then trial comes or something comes up and says hey did you interview that witness on the they said i didn't know to go home you know what if there was as officer england stated in there that he had many different things tracy why did they pull the prank call they only had two officers on duty at the time that they pull a prank call me all the attention over to casey general store as if something else was happening somewhere else in town so he was thinking about that he couldn't go home sorry peterson at least in his testimony that would be you know argue whether that's true or not but he said he couldn't get a hold of him because the cell service and charleston police department or at the bottom of the building the brick building they sometimes can't get cell service so there was a lot of things running through his mind at the time what he's testifying through and when he got out of the you know sergeant peterson stated that in his testimony that he personally took the statement from officer in what happened took him off the call after noticing the injured and reassigned officer until we found the dispatchers when this was three years ago i'm not sure exactly what happened with this call so they talk in generalities about hey look this review this would that say it was clear well yeah it probably would be clear you know something like well if you remember this call you know he doesn't remember all i don't remember specifics but he did testify that this was a cabin and stand thing so in the end ordinances of what we're job description of what a things that were stated in there i can see why it's clearly erroneous i can see why it's there's a mix question of law or fact even though the youngest few facts here that he was on duty at the time i didn't know he was working as a charleston police first district saying that you are saying that saying that it was there is no question in fact at all there is no disagreement then it's at inova that only  question on december seventh he is on duty is here thing in the best of it as an officer for purposes of the issue before us here i'm not quite sure if i understand your scenario your honor is with some point of time i mean according to sergeant pearson he has forty eight hours anybody does to file a report otherwise we'd be suggesting that if he goes home he's still got forty dollars is he still on duty is he still is it still in the indication that he has no further services should perform with the exception of making a report my argument would be no he is not i'm control service at the time it suspended and i think under the morning case where he was filing a criminal report injured at the department it did not qualify as an active duty give me an example of the hypothetical they were give you were it would be clear let's say that the court was not clear and let's say hey i'd make further investigation and there was some urgency some concern he was going back to the mic because a call had nothing cleared there could be an argument made at that point of time that the patrol duties had not ceased and he was still he was still involved in the furtherance of the investigation if you were to know what she was talking about right sorry you were there with she was talking about what i just said there but he says he contacted she come to say to reestablish communication she come says that was never done keep calm says anything by anybody that was said would be noted won't know were you talking about well it's a belief that was not the case your honor and simply also that when he entered that parking lot everything had she said at that point of time and he was merely injured like any employee in the employee parking report within forty eight hours on any incident but at that point of time he's not driving his vehicle he's not on patrol he's merely an employee in that lot there was nothing further at that point of time that required any emergency at that