involves a an appeal from an adverse decision of the nine line of duty disability benefits to officer buckner the issues break down into two pieces the first was is  this police officer became disabled as a result of two separate injuries leading to two separate back fusions both of which the evidence shows were were causative factors in the ultimate disability the second is if the only accident that disabled this police officer was the most recent accident whether it occurred under circumstances that constituted an active duty the first issue in my opinion is judged under the clearly erroneous standard because it involves an application of factual issues to a standard of causation and under the will for a case that's  whether or not her behavior in april of two thousand and six was an active duty is in and is a legal interpretation and in my opinion that is a de novo standard of review i'm going to argue to the court under the manifest weight of the evidence standard because what i would hate to see happen on the first half of this case is for the court to say well if we did the clearly erroneous mr due to wind but we think he had the wrong stand so i'm going to suggest under either clearly erroneous or manifest weight the fact that there is a single medical report of thomas gleason that the board might rely upon to say well we gave way to dr gleason's report and we have a right to choose these reports therefore you have nothing to worry about doesn't solve the problem even under the manifest weight of this the evidence standard of the courts upheld that even of the decision is supported by some of us which if it were alone a undisputed would support the decision if in the record as a whole it does not this court has an obligation to review the facts and and to reverse the decision clearly the first accident that happened april twenty ninth two thousand and one was the result of an active duty it led to this police officer having lumbar fusion surgery and should return to work with restrictions on record page four eighty five for treating surgeon on equivocally stated that she had a restriction she could not lift over twenty five pounds at the time she was released to return to work and that is the only medical evidence in the record the facts now she returns to work and she doesn't return to control who is she returns to investigation these and there is a tremendous amount of argument by the village and the board that there is no light duty and therefore they couldn't accommodate a restriction of twenty five pounds the un the un rebutted testimony is for investigations there are no dues that required her to live over twenty five pounds she returned to work for a few months and was then transferred to a special police operative force in conjunction with the state police she did they asked work for i think two two and a half years with a group called s now even though the my opponents indicate that i attribute gary wright converters testimony to be that she was on light duty that that's not that's not what the record shows what the record shows is that she worked under the close supervision of a state police officer named gary writing or he had no idea anything about her physical condition he had no idea what her physical restrictions  were he doesn't allow people to work for him with physical restrictions but he didn't know what earthwork what he did know is and he testified to this on equivocally i think it begins in the record at page one sixty that that officer buckner was a unique asset and she was given very explicit instructions this particular task force was to  finalize a transaction for further police after she was expressly it buys not to get involved in a struggle she was not to attempt to engage in an arrest and she was not supposed to  attempt every hand anyway now the reason she was not so clearly she is being told you should only work within the work restrictions of the doc ok the motivation of  her wasn't the restrictions his motivation was that he didn't want to expose right then but no matter what his motivation was the reality is in the she was performing work with a twenty five pound work restriction from two thousand and two all the way until two thousand and six once she returned to investigations again she was never with one exception required to work beyond her restrictions and be the  witness that is relied heavily upon by the board in support of its decision is deputy chief box in two thousand and two he was not her supervisor in two thousand and two her return to work was was made with the chief martin and we quotidian our reply brief the exchange between deputy chief box and the people who are interrogating him that during the course of her working for him she asserted that she had a work restriction and that certain assignments that were given to her in investigations were sam and she physically couldn't perform and that they exceeded her restrictions our argument was characterized by the defendants as quote self serving but the reality is her testimony is supported by her doctor her testimony is supported by the only medical witness who has any evidence in this record and therefore it is against the manifest weight of the evidence for the board to say that the two thousand and one accident was not a causative factor in the ultimate  inability of this five police officer to engage in her activities which brings me to the question of the application for benefits because the village makes a huge huge point that she didn't apply for benefits about the on the two thousand and one accident and therefore she is barred by latches and all sorts of things ph to fifty five contains the record page two twenty t five contains her type written for paragraph single spaced application for benefits with this pension fund and it relates from beginning to end what happened and what her what her application says is in two thousand and seven i was released to return to work by dr sweeney i had exactly the same physical restrictions and limitations in two thousand and seven as i had in two thousand one in two thousand and seven you wouldn't allow me to return to work in fact in two thousand and seven you told me that i was going to be placed on a wall status and that if i didn't apply for disability now you were going to fire me well that didn't happen in two thousand and one so all of this argument about latches and everything else if if this person had applied for benefits in two thousand and two she wouldn't be eligible because she's working a person who's working is not disabled so the triggering event that led to the application wasn't a change in her physical condition it was a change of the villages response to her physical condition it was only in two thousand and seven that she was not allowed to return to work which prompted the application now the header in the application doesn't specifically cite the two thousand and one act actually but the typewritten request for an think the two are pretty similar for the amount of time she was off work and she was receiving disability or something while she was having the fusion and doctoring the  while the enemy is not in the record but my suspicion would be that she was receiving or called peter benefits under five three five miles yes three forty five slash one police officers get full pay for twelve months if they can't do their job so she was probably receiving her full pay and she was getting a full pay i think the reason what brought this to a head is that in people of two thousand and six use her she gets full pay under pita for twelve months important thing to understand is that when she made an effort to return to work and it was refused not only did dr sweeney in his records say that she has restrictions this he says she has the same restriction she did before and then he goes on to say i don't understand why they didn't respect the restrictions i made in two thousand and two but she is in precisely the same position now as she was packed back and that's really into it's been she goes back to work in two thousand and two she's not just allowed to come back to work and say i'm ok i mean she has to present something saying chief and so when when the pension fund talks about we the board we need the three medical opinions what the what the board doesn't tell this court is that that's not the only medical evidence that it ed in the record before the medical evidence he had  record before with the treating records and dr sweetie's i think his november statement is really pregnant in terms of the fact i don't understand why this lady can't return to work today she has exactly the same restrictions that she had in two thousand and one and i'm not saying that the two thousand and six episode had no effect on this on this client but what i'm saying is that these two accidents combine to end her career the first accident didn't agree because she didn't work but the two episodes combined ended her career and the cases that i cite of this course of this court rose is a police case rose versus the mob prospect police pension fund but there are innumerable workers compensation cases that i cite to this court mobile versus i can't remember the name of the employer where it has long been held that an injury that is a cause of a factor in ultimate disability even though the person returned to work and  eventually a subsequent episode took the weakening of the physical structures and made them now disabling that is one is the original injury set up a week in physical condition the causation is a stamp and there the evidence in this case the manifest weight of the evidence i'm not asking this court to reweigh this case i'm asking this court to look at the facts of this case and apply the correct standard of law which the pension board failed to do the second question is whether this police officers accident in two thousand and six was the result of an active duty and i am i'm very ginger about this placental cases jones and phil goff these are two police cases involving control officers and what jones stands for the proposition is an automobile accident by a police officer on patrol is an active duty it has a specific actual risk of being a patrol officer this police officer had completed her shift and what in my opinion places her in the jones case glycine the last thing i want this court to do is to distinguish jones what makes this fit in jones is she had special status she was given eight unmarked squad car to drive twenty four hours a day she was i'm call twenty four hours a day which in my opinion places her in an elevated status of risk that would make what happened to her in an automobile something that occurred in the active duty all right so the question is you have the jones case you have those coffees i think this fits in the line between the two but there i agree that she was finished with her shift and she was on the way home and what distinguishes the case is that she had a  squad car she was call at all times so that even if the only accident the cost of disability was the second accident it would be the result of an active duty i appreciate the court's attention  quorum so if if you if you don't have two members of the board you've severely limited her ability to get a full hearing because she needs three there's a five member board there are only three out of five appointed to be let me point out a few points here i'm not sure of and we talk about review under this only a loony or standard of whether it's manifest weight but i do know in this particular case that there are a couple of points of law that i believe really have no significance in this particular matter that's all reviews according to the facts in this case first as far as the constitutional arguments i should submit that those were not addressed before the administrative board due process argument in addition to that the board did have a quorum as required of the open meetings act and it was a unilateral decision in that particular matter so that should be a non issue the only matter that might be an issue in this particular case for legal issues the argument of cup cassidy or the application of active duty under the one one four point one four line of duty disability which i'll get to in a moment but i believe that once we touch on that issue the court will realise that that is really a non issue in this case because they're asking for application the point of is  this particular matter to a wholly off duty accident that's why the legislature created two separate statues one for line of duty active duty the other one for anything else that happened for a disability whether be often  on duty so i'll touch on that in just a moment if you will the facts of this particular case first of all our argument i believe the villagers argument is that the application provided for the ability to cite what injuries what accidents were the basis for the request that really in the application two thousand and one was not cited the application place is in motion the jurisdiction of the board the board statutory authority to hear the board has to know what's going on before we can select three physicians to have an applicant examined as required by the statute but let's get a for a moment to the apple or to the evidence as far as i'm medicals three selected physicians by the board dr malik which counsel referred to in this particular case very abbreviated opinion maybe one paragraph maybe a page no definition to it at all basically says the generative disk is easy his able t thousand one implication two thousand and six implication because all doctors are providing all the medicals which may go back with twenty years for the i am me examination dr gleason very detailed report says disabled because of that is solely two thousand and six that's what he states say medicals of they have access to dr mercy a in his opinion basically states not to say causation wasn't even an issue because they said the back is better than ever you can go back to full duty however the board interpreted those medicals for the benefit of the applicant and granted a non duty disability in that particular case let's further go into this talk of late duty and restrictions that the applicant has faded from two thousand proximately two thousand and two through an inclusive through almost two thousand and six anybody knows here today that no article three police or article four fire down state department has access to full time like duty positions they just can't afford or they don't have and the chief deputy chief box in this matter testified that there is no permanent like you so she was not on light duty and that she and her superiors at the payout were also acknowledge the fact that she had to be a cool term full duty police officer she's testified basically to the same she talks about investigations or the sergeant at being the assumed duties were light duty it doesn't make any difference what that officers duties are as far as the assignment it matters that there are people who are performing full duty whether they have to or not and deputy chief reckoned burger actually stated in c p a we would not hire her we can't hire on a sign yet there is any medical restriction and nobody was apprised of any medical research in this case we talk about cheap martin cheap boxes cheap part would have access to that and he both keep boxing chief martin who called her in and said if you have a medical restriction we need to be privy to that it was never provided they never had any access to medical restrictions in this particular case and everybody testifies is your honor a good question there was no restriction everybody has testified that nobody had any knowledge of restrictions were never provided medicals even though those were requested in two thousand and six everybody testifies she went back to f back for full duty and the she did never have two thousand and two because she worked full time and she requested the assignment to see fair where she was an encounter undercover narcotics officer and they all testified she can't have a job if she's got a restriction nobody told her she had a restriction she didn't tell us three year restriction or freeze records not available to them i can't i can't answer that question my only only answer to that is there were no restrictions at that time and nobody identified restructures how is it that the individual ones back to work after having that odd is it even so that the police the chief of police just says oh nice to see you back i mean like u t and certainly no light duty for five years all i can state is that she was able to perform full duty and i can state that the testimony was crystal clear in this particular case after department the cheaper supervisor had no knowledge or any information even though recorder i can't i can't answer that i can only answer that from this standpoint as far as the war was concerned they determined even it with with the medical evidence before them and what the testimony before them that the two thousand and six accident was the cause of the disability in this particular case and there was competent evidence to support that i believe there is countered evidence and that's in the record to support that and competent evidence to support that she was working full duty and not like duty in this particular case just let me touch on the capacity issue as far as an off duty injury all the cases whether we wait the dorsey on all those cases that i acknowledge that the courts have been challenged to unanimity as far as the decisions as far as the application of active duty as far as capacity in these cases but one thread runs through all of those cases and that is that the plaintiff was on duty at the time of the injury if we're going to suggest in this case that somebody is on duty twenty four seven and i suggest we throw out the statute give everybody a line of duty disability who is injured at any time twenty four seven no matter what the situ situation  is that's not the purpose of the legislation that's not how it should be read we asked the court to sustain the board's decisions independent doctors who can't even agree whether she's actually disabled at all much less a causation much less the duration so it's hard to be against any manifest weight when determining a factual issue of causation the board determined now actually said what i wanted the point i wanted to make all of these statements as to how police officers return to work in university for there is nothing nothing nothing nothing nothing about there mr apples description of he conversations that were objecting to between box and martin are not in the record not in the record look at pages one sixty the record for about the next fifteen pages you'll see officer box who actually said i really don't know i really not that familiar i mean he said you know are you familiar this is somewhat and that's not a particularly effective answer the only we by the i would have is i know that this verbiage appears and teaches justice will reject i do not believe that manifest weight of the evidence is reduced but if there is some evidence we stamp i mean i think that the the a weak case in the bowling case and say even when the decision is supported by some evidence which if it was undisputed w sustain the finding it is not sufficient if upon consideration of all the evidence the finding is against the manifest weight of the evidence so even if there is some evidence in this case that's not enough for the board to get to get past this and i want to conclude i didn't have the page numbers to ninety eight and this is what dr sweeney says in november of two thousand and seven it says when when bucknor was seen in the office november twenty ninth two thousand and seven nine months after her fusion she apparently was not taken only evidence that the board against to support its decision isn't in the record we would have taken her back if she had restrictions she did take her back and there's no evidence offered by anybody that she went through a pre reemployment physical or they didn't like restrictions or the weapons if that's so important if that's what they need to sustain it it's not on the record it's against the manifest with the