so that the village may have its first opportunity to explore the nature extent and causation of officer feelings injury and whether it meets a standard for a catastrophic injury there are three issues that i intend to address ago probably in this case calls upon the court to decide whether minissha municipality should have any voice whatsoever in determining whether a freiman it is possible that we could have requested leave to intervene however at that point in time the richter decision from the second district had not yet been decided that opinion did not come down for three or four months after the pension board hearing was conducted at that point in time no case in this state ever determined that a village would be downed by a pension board decision to which it is not a part that simply had never been done so the village did not know that that's the way the second district was going and did not have any reason to believe that intervening at that point in time would be an option would be the only opportunity that the village might have or that be found in the future even though it was not a party to those proceedings i would also add that although a municipality may request leave to intervene the law in this state as it exists today is that there is no right to intervene and as such it is soley within the discretion of the pension board to determine whether or not a municipality is permitted to intervene that you cases that dealt with those issues williamson stick y both upheld the decision of the pension board and found that they did not this abuse their discretion one in the instance where the intervention was allowed and once where intervention was  actually were at the hearing the words we did observe the one of the obligations under the pension code is that the village provide a location for the pension board to meet and if the village of vernon hills there's only one i think we can i think there's one although we certainly requested that the court revisit crowley and look at the definition that was decided in that case we believe that facts and it correct then that the court's construction in crow is now part of the statute in the legislature expanding i mean it is still to change the statute in the twelve years since however i would i would argue that incredibly the only thing the court to find was the phrase catastrophic in croatia by the time the case reached this court there was no i'm just you as to the existence or the causation of the injury or disability and the phrase that comes from the statute is a catastrophic injury not just catastrophic injury not the plural of it  a catastrophic injury and we submit that the legislature specifically used the definite article a to indicate a singular injury in this case the facts are such that the disability that was found by the pension board escorting to the doctors that submitted the certificates of disability was one doctor said it was bilateral hip replacements to  osteoarthritis which was a preexisting and unrelated condition to any injury in the workplace dr gleason said he wasn't disabled at all but that the left hip surgery that was done six months after the right hip surgery was  in fact not related and dr jacobs said that he found that there was a disability but that it was osteoarthritis of the left and right hip so it sounds like you want to relive it gave the line of duty disability aspect of the  back to how what we did now is purred of the statute if we simply replace catastrophic injury in the statute with the crow a definition the statute now says that the employer shall pay the entire health insurance premium for someone who suffers an injury resulting in a line of duty disability there's no question that healing suffered an injury resulting in a line of duty disability i don't think is  there we are not attempting to collaterally attack the pension board decision however so what are we going to litigate with they're going to have well there are issues regarding there was never any evidence in the record never any evidence given to the pension board regarding whether the surgery that was required and all the doctors agree that the reason that healing was not able to continue his duties as a police officer was because he had bilateral hip replacements there's no evidence in the record that those surgeries were due to any job related injury he tore a muscle when he felt he had preexisting osteoarthritis and then they didn't a right hip replacement he then goes back to work and six months later he has left hip replacement and then for the first time after the left hip which was never there's no evidence that he injured it in the fall it's never been ended in the fall now for the first time somebody says of duty line of duty disability what i'm what i'm saying is in the in i'm dreamin we go back and we would look at the issues specifically as to whether surgery would have been required anyway with surgery required for what happened on on the job in never indicated that by adopting the definition it crowley or by using the language that was in the act that it intended to bar a municipality from participating in any way in the determination as to whether or not a person was eligible for benefits i would also add that pension board is a creation of the legislature as such it derives no common law powers it has only those powers expressed we granted to it by the legislature and the legislature when it enact and perceive could have said that it was granting the authority to the pension board to render the determination regarding catastrophic injury or emergency or eligibility for purposes of a but it should it not and because the legislature did not do that we believe it's in in it's inappropriate for any court to then t erm in that based upon a definition therefore means that the pension board has that authority when it was not expressed like granted by the legislature amiss and something either either we have to over disability pension i don't know where there is no in between there's something else besides or well i believe can overturn probably on that basis but beyond that if the court is not prepared to go that far i believe the court can simply distinguish probably where at the time the case was heard there was not a dispute as to the causation or the nature or extent of the injury the only question was whether it was sufficiently severe and it was a singular injury and crow in this case we've got something that happened in the workplace in a torn muscle and then hip replacement surgery that's completely unrelated to the accident itself there's no evidence in this record that the surgery was required to replace the tear of the muscle or that in fact the muscle was even surgically repaired this time yes i have a problem the fact that you didn't even try to have a motion to intervene you were there you were present and if there was an issue with regard to other evidence that you just just now you could have done it there did you not waive this issue i judge we did not first of all as i mentioned richter had had not in fact this was the first duty related disability pension application in anyone's recent memory at the village certain anyone and when i was able to speak with i was actually brought in on this matter the day before the pension here and they wanted to see where things were go but i would suggest that there was no waiver i would also suggest to the court that in the  peterson case out of the i'm sorry out of you know scrabble versus village of hofmann estates out of the first district the court specifically rejected the waiver argument that somehow by failing to intervene the municipality appeal we did both on the constitutional issue and on a slip of authority among the districts the first district in the second district have gone completely opposite ways the second district has expanded crowley and has then said that based solely upon a determination by pension board of a line of duty disability pension that that necessarily means that the place that employees burden under section ten a has been satisfied peterson and ascribe that out of the first district specifically reject that do and say that collateral estoppel cannot apply and that because the issues before the tension board are different and because the parties are different collateral estoppel simply cannot apply that's in essence with the second district it is yes it said it wasn't fine lateral urban issues are different the issues in the pension order whether the injury arises from an active duty if the court looks at the certificates of disability that are were given to the three doctors one of the two questions that the doctors was that were asked was is it medically possible that the disability relates to the injury that occurred on december tenth of two thousand and nine medically possible i would suggest that's a far cry from a preponderance of the end of evidence standard and it goes to just highlight the nature in very informal nature of the pension  proceedings that take place in these cases where there informal by their nature they are the rules of evidence you're not strictly by this in this case the penchant for hearing lasted ninety one minutes did we did not soon curly that yeah dystrophic injury is synonymous with the type of injury that only qualifies someone for a line of duty disability then then i think that's why i keep asking you but what is there to synonymous with receiving a line of duty disability pension which he did so if it went back it would seem to me even if we sent it back that the the second hearing would be a motion for summary judgment just to show that he had received the line of duty pension and it seems to be that your argument is that somehow we said it was the type of injury you know the causation the fact that it seems like a real litigation to me of the whether or not he should have received the line of duty this ability pension which there is no dispute dispute that he has recei that catastrophic injury we construe the phrase catastrophic injury as synonymous with an injury resulting in a line of duty and and did this not result in a line of duty disability pension did not this injury as looked at result in a line of duty disability pensions certainly a circle line of duty disability pension was awarded by the pension board on what we would contend is a less than complete record there was no cross examination of either of either the applicant or any of the doctors there were no depositions take it when there was no opportunity for the doctors to be positive with eight different set of facts i think it's important to keep in mind that mr schilling told each of his doctors that there was no prior symptoms he's never had any problems with his hips until he fell on the ice and yet there was a whole line of officers who were prepared to testify he put this in the offer proof in the trial court there were a whole like of officers who were prepared to testify that he'll  box of the link for many years there were other it was other evidence that was not presented to the pension board that the village was prepared to present at the trial so sorry are you saying that there's there i'm saying that there's a group of individuals who certainly have suffered less than the most severe injuries who may receive a line of duty pension and as we point out in our papers that are free to go out  and pursue other avenues of employment where they are offered insurance from a subsequent employer as mr dylan has been they receive a salary from a subsequent employer and in fact are placed in a better position than they would have been had the injury so that he didn't suffer a loss as a result of that i think it's also important to keep in mind that right now given the second districts and that line of cases interpretation under crowley that you've got different standards for officers performing the same job i think it's important that there be a singular process that's the fine for making these determinations it shouldn't depend on which hell it district an officer works in it should depend on whether or not the officer works in a town that has less than five thousand people and is therefore not subject to the pension owed or whether he works for something like a forest preserve history or sheriff's department or some other entity that's covered by the i after as opposed to the police pension in those cases there is no pension or that makes a decision in those cases municipalities a municipal entity is free to litigate the issue or explore the issue regarding the standard that applies in those cases that mr hunt the i do the rules of the pension board allow the members to ask questions to cross examine they do permit questions and i think an examination of the record in this case is that there were a few questions asked that very well the village appoints two members to the board now they're supposed to act fairly and impartially but did they raise any questions or concerns i mean were there any questions i believe the questions that were pi's if there may have been one question from one of the village appointees keep in mind that for the five were present or former police officers and therefore present or former coworkers but any of the other questions now were posited by members of the board were from the other officers that were either elected by the current officers or elected by the annuitants as of my time as well just one last question was a final vote by the board of the five i believe it was yes thank you thank you accurately answering your question that the vote was four to one and vote and the one dissenting vote was not one of the forty percent appointed by the bill which was one of the elected members was president o aware that they have set up different rules but in their brief the village argues for a unified system for determining pensions across the state that may well be a good idea perhaps we should have an impartial panels appointed by the governor or with medical doctors etc that is not function respectfully for the score the unify how the illinois state police and ministers judicial edict respectfully suggest would violate the separation of powers and the system is well known to the legislature and justice thomas pointed out has the legislature if we re thousand and three so the legislature is well aware of this that the court is well aware because this is not the first time the court has heard challenges to crowing since the court decided the case in two thousand and three and two thousand and ten message is very clear that only mistily and the villages and towns don't like the decision and probably i respect lee suggests that if that is their position which clearly is their remedy is with the illinois general assembly not with this court to keep bringing back the same argument that they don't like the definition of catastrophic injury is synonymous with line of duty disability isn't a problem that they had no opportunity  heard thank you and you just as a government that is where i want to start they have the opportunity i think the village tries to craft an argument that under stickney they didn't have a right they certainly hit and when they look at when you look at the due process cases they cite most of those who process take cases talk about the opportunity and clearly the village had the opportunity i was there mr hunt was there the village administrator was there and i started the argument interview in the record you'll find that the court reporter took note of both the presence of the village administrator and a village attorney and in my first remarks before the board i said the village has not sought leave to intervene clearly the village has said but we'd like to and they have done it in another case and it is part of the i think some of the arguments mr hunt go beyond the record but it is cite several times in my brief because i think it's important for several points one of the points in williams is that they have a that the billet the board has discretion but they should exercise it cautiously says it made a much longer case a much more difficult case but i don't think that's a concern of the court that if they want to intervene i don't know how has this case presents itself since the village did not take any of permit of steps how the instead of having what we have what has been created in this case my client is that the single police officer with a wife and two minor children the village has said that this case his entry was two thousand and  disability hearing was in two thousand and thirteen we're now two thousand and fifteen and we're still fighting over whether he has this ability health insurance for his family i misspoke on my crime was the application for disability was made in two thousand and ten the hearing was june twenty eighth two thousand the love of the ruling was august of two thousand and eleven the village file legislature intended that he would have i would point out that i don't think that under the way this case is a file that issue was read because the page board never  deny the village and the opportunity to speak i want to return for second to what the village did in this case that i find that undercuts a lot of their argument one of the says he never had a chance or or the opportunity to speak on the issue of disability i would point out to this court record that the village paid my client for one year benefits under the public employee disability  disingenuous to pay it me and a year's salary and benefits as required by peta which happens to public employees who are disabled so the village he has a galaxy of disability now i would not take th emergency alarm head but putting up christmas decorations and felons to same the same injury we may have had a party form and said good luck we're sorry about your disability but it would have received a fifty percent disability and it disability so when the village comes before the trial court of public court in this court it's we never got the back on the disability issue i would respectfully disagree and i would really respect would point out that they had the opportunity and i would further point out that there does the opportunity was not only on that they when we started this hearing beginning of two thousand and eleven when they were there that after the board reached its decision pursuant to the holding in the village will parker seal part of a part of my pension they could have come in at that time within thirty days of the board's decision and say excuse me i reconsider its walling under all park vs all park firefighters and the village had a right under cars to come in and see a ministry of review they chose instead an avenue that is going to be x which has its stream really expensive for the disabled police officers family using their enormous economic resources were now as ace pointed out five years down the road almost from that the disability hearing was held and he still doesn't have his is its health insurance and they say it's it is yes is it your position that even if if they had sought leave hindering before the pension we're hearing and and been denied an opportunity they would still have the right to pursue the administration review i think under cover so what and i think the decision at that point is to not allowing them would have been a matter of review by trial that we would be visiting upon are this able of police and fire officers if the villages line of thought is far they bring many things before the record before this court they're not in the record and say well we've got guys would testify that he had a limp i can assure this court i have people who would testify other ones and we would have but the expense to disable police officer of having to take let's start with the three doctors appointed by the  enormous expense of pain for evidence depositions of those doctors or bringing them in to try to bring in the witnesses the williams case again i think is very instructive as to what the type of hearing the the administrators process is and it does allow for relaxed rules of evidence if it's reliable not this court has heard many cases of police that this ability pensions and you actual hearing i think it does a disservice to the five citizens who serve on the police pension board who reviewed a four hundred thirty five page record of exhibits in order to be ready for the hearing and who did question the a pplicant and more importantly in answer question dr gleason the the attorney for the board and i were able to agree on the exhibits was extensive work which the board took the time a police officer to have to try and find the resources to be able to afford that sort of legal fight against a well financed the point and of trial court pointed out to me when i policy and i would strongly urge to underscore that the villages due process argument that they had no right to intervene and they didn't get their chance is really specious that they had it right opportunity to process they had the opportunity they decided to pass on now they say well things would have been different in that even mr hunt's argument here that it is urgent underscored what they could put forth in their response to justice thomas questions what happens if we send this back what are you going to do then because just as in the clerk or judge for trial and spite of the two thousand page offer proof that was there the trial took an hour took less time than the like to briefly address some points raised by counsel on behalf of mr hill and i would start by pointing out that an awful lot of their argument an awful lot of their brief is devoted to a discussion of how expensive this process would be if the villages view is adopted and the fact of the matter is we submit that expense should never be any justification for certain due process the village had due process rights in the circuit court the village availed itself to the declaratory judgment statute in the code of civil procedure because there was a disagreement between two parties that is another appropriate avenue for the village to have pursued contrary to counsel's arguments we are not requesting that this court somehow circle legislative or over rule of it legislature or circumvent it by crafting your own uniform system the fact of the matter is it's very simple for this court to do within the confines of the issues presented here today and that is to simply rule that a phillips may not be a municipality may not be down by a pension board decision to which it was not a party that simply then allows the village or any municipality to pursue that it puts all officers across the state an equal footing it puts all municipal entities on equal footing just like the court the second district said in the failing case involving a mchenry county sheriff's deputy in that case they said they noted that specifically there was no available pension board to look at their decision and therefore they had to craft their own test for catastrophic injury and whether or not that officer meant met those birds so we don't need to usurp the legislature all we need to do is follow due process and specifically rule that a village or a municipality cannot be collaterally is stopped or somehow found by the pension board ruling council as has repeatedly said it's that municipalities don't like crowe it's not a question of liking or not liking a decision it's a question of the fact that what courts have done with the crow definition and where it is taken is in fact one of the issues one of the cases that's not in either side's brief was decided three weeks ago by the second duster in which they not only followed ritter and healing but they also went a step further in a case called grammar against i believe as a city or rockford in which the court then said not only does a pension board ruling satisfy ten a for purposes of up with respect to a line of duty disability pension but if it's an occupational disease disability pension we can look at whether pension bo did in that forecloses any opportunity as well so the second district has really taken the crow definition two or three steps yonder we believe certainly the legislature intended or with this court intended in reaching pro i would also add the specific sponsor of the to see the statute senator warren donahue who's now a city clerk in quincy i believe has has given several interviews since then specifically stating that that's not what the legislature was thinking that we're fighting anybody who simply got the pension counsel makes a big point of arguing about what we could have intervened we could have should have sought leave to energy and i know a number of the justices asked those questions during our principal argument the fact of the matter is and this is in the record it's in our reply brief it's in other places in the case below there have been three instances in the village of vernon hills in granted that it bill we don't know what would have happened in that case had there been an objection but we do know in the third case riscoe was in the courtroom here today that we moved to intervene in a timely fashion months before the engine or actually took place and the pension board denied the request because they didn't want to go through a lengthy and exhaustive here and so as long as boards have the discretion to grant or deny intervention it seems to me that the only avenue in order to protect the villages or municipalities due process rights is to ensure that they can avail themselves to what the legislature created when it specifically authorized the filing of the clear tory judgment hampshire the impact of  decision simply saying that if you don't intervene or pursue those remedies or pursue administrative review which i'll discuss in a moment briefly that that somehow it's been waived or that privilege is bound by those results the impact of that is to require as in essence the second district has now done then a village seek to intervene in each and every disability pension matter which means those cases are going to be heard the villagers are going to use thousand of file those requests they're going to go forward they're going to seek to intervene and if it's the night or if it's granted and there's another decision that comes out there but there's going to be requests for administrative review i would respectfully suggest suggest to you that the circuit court is a better venue for hearing the complex issues that come out in these situations then it would be a pension board has a framework that's better suited to handle these issues there are the rules of evidence there are the rules of civil civil procedure and the rules are there to guarantee that both sides are afforded their prince due process right those those same guarantees don't exist in the pension port council argues that there was a worker's compensation finding that was made i would point out as we did in our previous the workers compensation lump sum settlement contracts specifically said by the way signed by mr healin himself specifically said that that contract was not binding in any other proceeding you could not use this evidence of his disability  any other proceed and yet today they come and they argue that somehow it can similarly peeta the public employee disability act in essence is a supplement to workers compensation under workers comp an employee gets two thirds of their weekly salary pita for a period of one year they get a supplement paid by the village it's not even mission that somehow the person is disabled any employer any public employee who was injured in the job is going to be eligible for those benefits counsel indicated that we should somehow of pursuit and minister a different view citing carse a careful analysis of carse specifically will show that in cars the court was careful to say they just because you find the pension doesn't mean you have a right to administrative review the court said it had to be something more than that it had to be a situation where as an arse there was a fundamental error in the formula that was used in the pension board so it's not enough to simply be writing checks to fund and should every year so i would submit that under carves the village did not have the ability to seek a ministry of review with a pension board's decision this matter because there was no indication of anything in that decision that would have risen to the level that carves provide in short we think that the circuit court is the better venue to handle these issues we invite the court to revisit crowing in light of the the way that it has been interpreted by the appellate courts at the very least the court needs to ensure that the  that simply you're going to bind to a village based upon the sedition by another entity in another forum for which the village was not a party that considered different issues it is fundamentally unfair to do so and we ask that you