year firefighter for the village ripoff of the states who for nearly one thousand fires throughout his career and over time suffered the loss of hearing in the record it's clear that the only only because of his hearing was was the voice of work and a career ending injury june twenty two two thousand and four should have had his health insurance benefits paid by the village apart from the state s unfortunately there are a number of procedural issues that are extremely important the the procedure be a judicial procedure is the most important because this this problem was solved by the illinois supreme court in the gaffney case gaffney agreed to involve the defendant that's a fire protection district i agree that the the court did not specifically address the state was saying we do not we do not wish to share concurrent jurisdiction with any other agency and i ported from gaffney extensively and i know that that's not favored by pages seventeen and eighteen brief i went through the court's opinion from paragraph thirty through paragraph forty six of the supreme court's opinion and the supreme court addressed my argument that section twenty disclosed a legislative intent to occupy the field and they concluded gaffney's declaratory judgment count was the proper means of seeking a determination of section ten benefits and then their words in this case so what the village is saying is they believe that they can use the home rule provisions of the only constitution as a method of distinguishing and cutting cutting away the eighty eight segment of public employers whereby they can impose a formal hearing procedure i'm not saying that they don't have the right to do to have some procedure to determine whether they will or they won't pay but what i say is that the general assembly has occupied the field and whatever the village does cannot be entitle to the deferential treatment that eight arms lane administrative procedure is given where or where this court would defer to factual findings that this court would defer to the expertise of the agency i do not believe goes hand out of it and maybe you can  look at section twenty in comparison with other states use in which the courts have analyzed whether the general assembly has occupied the field i took a case cited by the defendant city chicago v and the court the supreme court and in that case by the way the supreme court found that the particular stance shoot did not withdraw the concurrent jurisdiction to hear the case but what they did is they language is clearer than then than this one i was looking for what are the magic words or is there magic words that need to be invoked and they were true cancelbot me one wasn't of the citizens utility sentences are transposed in the language i rely on is this n is a limitation under subsection i of section six of article seven of the only constitution on the concorde exercise  powers and functions exercised by the state and that's the same language that was utilized in the citizens utility board and that language in the civil since utility or dick has actually  the question then becomes i mean again it's a matter of statutory interpretation as to if there's going to be a procedure either limits on what the procedure can eat and our argument is that the ordinance in question literally appoint state my adversary as being a hearing officer an adjudicator of the dispute the ordinance whereby a village manager is delegated the authority to make these determinations is part of his his general village manager responsibilities for the village he is my adversary he is the one bad we would  here officer as well as ever he asked questions i think i think that the village manager if you read the record i am relying on specific factual parts of the record but if you read the record  mr norris routinely contributed his take on how the fire department is run and he made he made comments so i'm not asserting that and in my argument individual bias i'm saying that i proceed sure whereby my client is going to be bound by a determination involving benefits that are substantial is going to be adjudicated by a person who's interested whose interests are first in his it's a conflict of interest i mean if i do sleep i have an opportunity to argue before the three justices of this court but if one of the justices were also serving his village manager for the village apostates it it would raise questions obviously there are canons of ethics that apply that don't necessarily apply to the village manager of i will indicate to the court i did find cases where where the core of the courts have held that when your adversary is the judge  it is not fair and it's not impartial it's also not subject to the three tier test it dance by the defendants and their in their breach those are the other cases but the cases indeed have been followed more recently and i cited the more recent cases involving the pension so that might my argument is and i thought these hearings procedures quite frequently yes some all under collective bargaining the issue raised by section twenty were adjudicated before an arbitrator you have a fair and impartial person who has no financial stake the village manager serves at the will of the and acted to make the village manager the hearing officer for the benefits and this is this is not like a traffic case or not like a liquor license case where you are because frequently the mayor of the city technically is the is the hearing officer for liquor license approvals this is a case where the the the money at stake is village money it's not a license it's it's it's there it's their treasury and to have them be the ones who make a determination that will then be deferred to by the courts i think is i do think that the cases cited by the nurses is out there also dealing with people's rights and interests as well whether it's a liquid commission or the rights yesterday the answer to the question is yes but that's not the whole that is up the line yeah i'm talking i'm probably talking about the city of chicago has no direct financial interest in whether someone gets a liquor license the city of perception was if a firefighter or police officer ended their career responding to an emergency or current criminal investigation everybody would want to pay their health insurance i don't think anyone contemplated the level of i think that the president is clear with richter and with maybe bad that the there is an identity of issues here there is pretty between the parties and we have two finals adjudications and i don't think that that now it's on page i think it's five twenty two of the record if when i come up for rebuttal i haven't written my notes i can i can get it for the court because because a hearing officer norris asked me what my theory of the case was and i said two things i said firstly i think that over the years of of his service he had a progressive was appearing to noise exposure but he had the straw that broke the camel's back so that was the quotation issue as to for what i said and identity of issues because because the question is was he responding to an emergency but on the issues of quotation the issues right now tickle ok and the richter case the court in richter versus the village of  was adamant that it is not required that a firefighter proof bed all of his disability was caused by activities that were the result of responding to an emergency he only needs to show that there was an event that was a contributing factor to his underlying disability and in the ripper case firefighter richter head had a number of injuries to either of his shoulders some of them were during training exercises some of them were doing routine maintenance and only one of them had to do with his actual responding to an emergency and he went through a full blown hearing before a judge in the circuit court of page county and the a judge made an adverse factual and legal finding against the plaintiff that the appellate court reversed on the basis that that the pension funds determination of question collaterally a stopped not the pension i'm a potters the worker compensation commission and the lump sum settlement agreement that stopped the of the hearing officer from making a conflicting finding and the medical evidence in this case was the same medical evidence the pension the only issue the only issue is determination of the amount of reimbursement for the health insurance premiums that the peterson's have been paying the it's two thousand and seven but the pension board is something some other language it disability the pension court has to find that the disability was the result of an active duty and that the active duty caused the ultimate disability in the active duty that the board found was the straw the broke camel's back was june an active duty can can be a non emergency about it's true i agree but that's not in this case that wasn't that wasn't the that wasn't a factor sent to the pension board in this case but there are acts of duty that are not all respect to the court i think that dr collateral estoppel is an engine on what the supreme court's interpretation of a standard is going to be it applies or it doesn't i would call your attention your honor to page five zero seven of the record in which  the event village attorney for the village office states wrote a very pregnant letter that i may intervene in the case i don't know if we really want to i think this is strictly going to be  but even if even if they and i must admit they didn't intervene therefore they weren't formally a party but they aren't pretty and i cited the court to the garcia case and i know it's not precedent federal cases are precedents but the state cases cited by the garcia court are precedents and would apply to this body which brings us down to the the the issues that lay people are interested in and that is in fact is alan patterson's disability his hearing loss disability the result of responding to an emergency and here we have all of these issues ok the hearing officer determined of that be the first question is does the plaintiff have to prove that the june two thousand and two two thousand and four episode was the primary cause of his disability get health insurance ok the second thing is do they have to prove that there was a change condition from them and do they have to prove that when you're on interstate ninety with your lights operational even though the fire has been extinguished is there still an emergency i don't think we do need to do any of those even if i concede which i do not if i concede that the june twenty to two thousand and four episode never happened this this plaintiff would be entitled to have this health insurance premiums paid under by are under richter and under all of the decisions of the workers compensation commission quaker oats furia bellwood nursing home there is nothing that protests that says that repeated insults to this man's hearing as a result of his responding to actual emergencies are not compensable are not paid and the public safety employee benefits and there is nothing in the standard that would suggest that there are no cases that i've ever seen in the worker's compensation field in the pension field that impose such a limitation and beginning i actually preparing for all argument all of the medical evidence starts that page for three ninety two in the  goes through till page five o six just before the letter from robert williams and every single doctor who rendered an opinion about this man's hearing indicated that he had a noise induced hearing loss and the noise induced hearing loss was the result of his his performance of back activities as a firefight that the whole moral authority gives them the way to have a hearing if you find that the decision of village manager nourse is not bound by the doctrine of collateral estoppel and you then have to look at his decision under the manifest weight of the evidence it's really that that you have to look at these these prior acts and because if we're going we're going to say this is an administrative procedure the decision an interpretation of a village manager nor us are  not non reviewable this court has the right to see if there's ever denture e support for his determinations and my argument to the courts if you reach this point i don't want you to reach this point but if you decide he has the right to have a hearing it's not bound by collateral estoppel the june twenty second two thousand and four episode didn't advance his disability then this court still cast a look at over twenty years whether he lost his hearing as a result of anything other than that you know two thousand and four respect i don't i've never viewed that i have a burden if i have a witness testify that i fight so many fires per year and on these fires i do these duties and i'm exposed to hearing minor so a doctor part tista and a doctor told him so the three dr gordon said that he had a an appearance shift of his hearing which he found to be minimal but he agreed that there was a shift in his hearing thousand and three dr put t stuff at page four forty five of the record of between forty three and four forty five of the record found a fifteen decibel shift in hearing after june twenty two two thousand and four as compared to the audi a gram in two thousand and three so as i say the pension board found the bag episode was significant but i just don't think that the burden of proof is to bring in fixed fact each of the officers claim and to determining whether and nine the injuries times from an emergency call in and and so for us to conclude his ears that he operated the the pump panel that the motor used to drive the vehicle as the same motor the drove home and that in order to get proper pressure you had to accelerate the rpm to generate a tremendous amount of noise  he wouldn't be doing a mean yes theoretically he could do better the training exercise but more that his exposure operating the pump was operating the pump to extinguish fires i mean the patchwork found that he goes out a thousand calls a year counsel sites or perhaps indicts mr norris as being a particular finder of fact in the escrow the case as a matter of fact mr norris was also the finder of fact this court has already looked at that and found that his contrary decisions are not collateral estoppel so i would submit to the court that counsel's argument there is a precedent from this court if you look at collateral estoppel itself it makes even clearer why that preston is correct and appropriate in the elements of collateral estoppel there first has to be an identity of issues as the court pointed out an issue to be decided by the pension board is not whether there is a response to an emergency that is an issue to decided not to see them if they make such a decision terminations it is simply gratuitous in addition there must be an identity of parties counsel indicated that the village was not a party to the pension board here and so what  not an appropriate concept to apply here or can cost i'm sure if i had given the best causes argument that the village actually wasn't privy with regards to the hearing before the pension board it's not a in the same issue is that the same parties is there the same incentive to demand different issue different parties the villages and their i submit it doesn't really matter it cannot apply which perhaps brings us full circle to the specific procedure that the village utilized the procedure the village utilized was an administrative hearing process ministre to hearing process here is far different in analysis than the out which we found in gaffney in gaffney we were dealing with a fire protection district it goes almost without saying that a home rule entity it's far different under illinois law from a non home rule entity springing from the constitutional grant of power in article seven section six say the home rule gets its powers essentially as the sovereign does the state in section seven of article six it specifically says that not a home rule must get it from law hence the the decision is extremely understandable that court went to great pains to scour the specific enabling statute the buyer protection district act to make a determination whether the fire protection district had the and can only be usurped with specific taking away by the legislature we find that both constitutionally as well as in the statute and statutes as well as in case law and that's what we don't have here as the court pointed out and his counsel it made it even at the hearing in this morning the perceive a statute is silent in terms of any type of procedure our supreme court noted that silence when the trial court heard the question of can there be effectively homeworld preemption it looked as i believe a lot requires us to look does the statute address it and i would submit to the court the statute does not if the statute is silent there can be no inconsistency between what the village did under its home rule powers and what the statute provides very specifically section twenty which is where plaintive looks to find home rule preemption is very specific language far different than what was cited in the brain that language focuses on in a manner inconsistent with the requirements of this act there can be no inconsistency as the court recognized if it is silent moreover if we look at the specific provision in plaintiff's brief to the commerce commission they have talked about exclusivity and talked about where that act specifically has provisions there are no such provisions here as a result of that what the village did it was an appropriate exercise of its home rule of forty in terms of village manager norris acting as the hearing officer i would first observe the court that if someone who has some his point of what's in their words interest in perhaps an outcome cannot serve as a hearing officer and that would be discords ruling i doubt no longer have hearings you can't have hearings under labor contracts words who are management wor who are labor because they would have an interest that is not our test the test is if he wants to look at the constitution ality is there a rational basis and there is a rational basis in very tellingly what coun didn't believe that it was his burden to demonstrate or look at specific i think the terms are individual actions by mr norris and that's precisely what this court must look at was their actual prejudice was mr norris in a way acting contrary to being a fact finder and i would submit to the court the record is absolutely silent that there is any such problem in the us as a result the adjudications made by mr norris at the turns to what was the evidence below where we must start with the evidence below is who had the burden the burden of the ministry of hearing was on the plaintiff our supreme court and no act specifically addressed this issue is liberally and in favor of the intended beneficiary construed that's what plaintiff wanted however the court concluded that is the very opposite quote of what our canons of construction compel so this particular statute  it best there may be some sort of conflicting testimony but even that conflicting testimony look at it closer is telling what it says there is no question as counsel points out it stops here th each of the physicians who examined mr patterson made a determination that there was a noise induced hearing loss so what they didn't go is go one step further there is no evidence in this record that that noise induced hearing loss was in response to what is an emergency and if we look at the definition of emergency that we find in gaffney which is an unforseen circumstances involving imminent danger that person or property requiring urgent response that was the  a clear conclusion is that when compared using the dated injury of june of zero four and going back to over three his baseline hearing and then going six months later he finds there be no hearing loss and his loss of hearing that was existing with turns of the baseline which demonstrates that there is a record here that was established that if this is the so called straw that broke the camel's back the camel's back wasn't broken by the june incident rather at best we have is a substantial amount of evidence that mr patterson had a hearing was fair enough that we don't have is that it was  result of his response to an emergency that was the burden of the plaintiff or the applicant it wasn't breached why wasn't it reached if we look at the record below we control terminate why it wasn't reached in large measure what mr patterson really said is that and he signed off on it specifically the supervisors action report which is part of the record that was after the call he said he wasn't responding he was on a call putting aside niceties of language and the like is the core i think recognizes not everything you do even if you're entitle to a disability pension or some other type of pension says it's his the result of an emergency and it was the requirement of the plaintiffs not to testify befor this court that that's what i think all the evidence met but to demonstrate that and specifically when we look at the evidence that was made clear to the physician reports that evidence is lacking as a result of that we look at the specific findings we might have looked at it differently or we put up is of no moment the question is is it against the manifest weight answer i would submit is no because of what we have in front of us we really have an admission that the plaintiff thought i didn't need to prove anything therefore i didn't because he didn't work with this record is that any of it is not because then we need to apply those factual findings to the requirements of see them when we look at the requirements of siba are the two requirements catastrophic injury which is defined to be effectively an injury that could lead to a line of duty disability defined to be and then as a result of an emergency or responding to an urgency that would be a mix question of one fact that's clearly erroneous would be the our legislature has passed a particular statute receive them saying you cannot do certain things inconsistent with the act but being recognized by the only supreme court if there is nothing in the act suggesting a hearing procedure because of on this record the factual determination is that were made are such that they are not against the manifest weight of the evidence and then the determination of how those facts affect whether you get to see the eligibility or not are certainly n action out here what a village under home rule is committed to do is to specifically maintain and have rules with in fact that we will be there or governmental functions back or governmental legislature says no the answer is worse no it's pacifically addressed issue why do i say it that way because if it is going to be specifically taken from that right speak of from the village under the notes to home rule act there must be a specific note say we're taking away and here is in fact the particular impact that is missing here the reason that's missing is that was not a right that was taken away from th if you look specifically or more specifically at what villages really do i think the davido case from this court specifically said that personnel board can exist so there is a power to  ministry to decision making in a case which i'm going uphill of pronounced the trepan miro i got a close versus aurora case in the second district the court found the same way that you could even deny that you're in the someone so to say that they can't have a hearing i think doesn't go the rule i think the answer is more likely no without a specific as a result of that i would submit to the court there is no collateral estoppel as a if you will an overlay to that if you look at other individuals that could be subject of a ceiba for instance correctional officers perhaps people in a fire indication that we may look to the definition but that does not then collaterally a stop that decision from being made later and in fact that's what this court in the scope of specific we found is that there is no collateral estoppel fact and in fact same definition there are not enough to see the context it was a decision that needed to necessarily be made here even if we jump over the requirement of identity of parties which i submit we should not and cannot and we look at just the issue what really is being urged on this court if in fact they are can be collateral estoppel is ritu it is findings such as the finding of emergency such as the finding of catastrophic injury which is not under the pension code it's under  it does not require that it be in response to an emergency there are other cases a scroll visit but example of that they didn't find an emergency but instead in a screwed up he was working in them the fire station wasn't responding he was simply in the station so it's a very different analysis i think and i would submit to the court the collateral estoppel cannot and should not apply because there are different issues different parties different incentives and also most importantly what the court looked at i would submit in a scrubbing and others the benefits in my opinion legally exhibited or as collateral estoppel meaning as a matter of watch regardless of the evidence regardless of anything the village has to pay because the pension fund found that this man is disabled as a result of exposure to loud noise at work so i did raise the issue of collateral estoppel number two in terms of the burden of proof on the pre to thousand for disability to the korean a question i didn't answer it gives me was a musculoskeletal injury it was a one at pages three twenty nine through three forty two i set all of the necessary foundation and the medical opinions of the doctors and i aced i indicated to the court that those started page one twenty three and you really should read all the  it was strictly a firefighter who was in the station he wasn't on a call and that was the basis of the court's determination to give the spin estoppel but the court was unimpressed because he wasn't on a call at all and finally in terms of whether there was an emergency  r mr patterson testified that the fire whistle but the more he said i was in the midst of an emergency lights were going he's on an interstate highway under circumstances that the general assembly has passed special legislation that motorists in when they see a vehicle in the condition of the fire engine of master mr patterson have special penalties applicable to them if they if they don't respect because of the inherent dangers of what mr patterson was doing in june two thousand and two two thousand and four finally i totally disagree with counsel's interpretation of the medical opinions on returning to face life i don't think that's what dr bold