No. 2--07--0569 Filed: 3-28-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

TIMOTHY PHALIN, ) Appeal from the Circuit Court

) of McHenry County.

Plaintiff-Appellant, )

)

v. ) No. 05--MR--22

)

THE McHENRY COUNTY SHERIFF'S )

DEPARTMENT, ) Honorable

) Maureen P. McIntyre,

Defendant-Appellee. ) Judge, Presiding.

_________________________________________________________________________________

PRESIDING JUSTICE BYRNE delivered the opinion of the court:

Plaintiff, Timothy Phalin, filed a two-count complaint in the circuit court of McHenry County

against defendant, the McHenry County sheriff's department. Count I sought a declaratory judgment

that, pursuant to section 10 of the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10

(West 2004)), defendant was obligated to pay premiums on its health insurance plan for plaintiff and

his "qualifying family members." Count II sought an award of attorney fees pursuant to section 1

of the Attorneys Fees in Wage Actions Act (705 ILCS 225/1 (West 2004)). The trial court entered

summary judgment for defendant on both counts and plaintiff brought this appeal. We reverse and

remand.

Section 10 of the Act provides, in pertinent part:

"(a) An employer who employs a full-time law enforcement, correctional or

correctional probation officer, or firefighter, who *** suffers a catastrophic injury or is killed
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in the line of duty shall pay the entire premium of the employer's health insurance plan for

the injured employee, the injured employee's spouse, and for each dependent child of the

injured employee until the child reaches the age of majority or until the end of the calendar

year in which the child reaches the age of 25 if the child continues to be dependent for

support or the child is a full-time or part-time student and is dependent for support. *** If

the injured employee subsequently dies, the employer shall continue to pay the entire health

insurance premium for the surviving spouse until remarried and for the dependent children

under the conditions established in this Section. ***

* * *

(b) In order for the law enforcement, correctional or correctional probation officer,

firefighter,spouse, or dependent children to be eligible for insurance coverage under this Act,

the injury or death must have occurred as the result of the officer's response to fresh pursuit,

the officer or firefighter's response to what is reasonably believed to be an emergency, an

unlawful act perpetrated by another, or during the investigation of a criminal act." 820 ILCS

320/10 (West 2004).

In count I of his complaint, plaintiff alleged that on November 21, 1998, and August 23,

2001, while employed by defendant as a full-time correctional officer, he injured his neck during

altercations with inmates of the McHenry County jail. Plaintiff further alleged that in both incidents

he was responding to what he reasonably believed to be an emergency, an unlawful act, or both.

According to the complaint, in November 2001, as a result of one or both of the injuries, plaintiff

became unable to perform his duties as a correctional officer. Plaintiff's responses to a request to

admit served by defendant indicate that, in addition to the neck injuries suffered in November 1998
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and August 2001, plaintiff injured his neck in January 1999 when a chair collapsed, and he injured

his back during a training exercise on November 1, 2001. Plaintiff further admitted that, in June

2003, his employment with defendant terminated, and he obtained employment as a financial

services associate with an insurance company. Plaintiff received temporary disability benefits from

the Illinois Municipal Retirement Fund (IMRF) under section 7--146 of the Illinois Pension Code

(Code) (40 ILCS 5/7--146 (West 2004)) from November 2002 until at least June 2003. Plaintiff was

never awarded total and permanent disability benefits under section 7--150 of the Code (40 ILCS

5/7--150 (West 2004)).

In count II, plaintiff alleged that he made a demand in writing to defendant "for an amount

not exceeding the amount actually due and owing to him pursuant to the [Act]" and was therefore

statutorily entitled to an award of attorney fees.

Defendant moved for summary judgment on both counts. In support of its motion, defendant

argued that, in the case of a correctional officer, a catastrophic injury is one for which the officer is

entitled to receive total and permanent disability benefits from the IMRF pursuant to section 7--150

of the Code, which applies to municipal employees who are disabled from engaging in any gainful

activity. Defendant argued that plaintiff did not qualify for the section 7--150 benefits because, inter

alia, he had obtained gainful employment as a financial services associate. Therefore, according to

defendant, plaintiff did not suffer a catastrophic injury within the meaning of the Act. Defendant

also argued that two of the four injuries plaintiff suffered--the second and the fourth--did not meet

the criteria of section 10(b) of the Act. With respect to count II, defendant argued that plaintiff failed

to satisfy the demand requirement of the Attorneys Fees in Wage Actions Act because his demand

letter did not set forth a specific sum.
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Summary judgment is appropriate where "the pleadings, depositions, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2004).

"The purpose of a summary judgment proceeding is not to try an issue of fact, but rather to determine

whether one exists." Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 311 (2007). Summary

judgment should be allowed only "when the right of the moving party is clear and free from doubt."

Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). The trial court's ruling on a summary judgment motion

is subject to de novo review. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000).

Employers subject to the Act must pay for health insurance coverage for a public safety

employee (and his or her spouse and dependent children) when the employee suffers a "catastrophic

injury" under the circumstances specified in section 10(b). Defendant suffered four injuries. There

is no dispute that the first and third--which arose from altercations with jail inmates--meet the criteria

of section 10(b). Likewise there is no dispute that the second and fourth injuries do not meet those

criteria. The principal issue is whether plaintiff suffered a "catastrophic" injury.

In Krohe v. City of Bloomington, 204 Ill. 2d 392 (2003), our supreme court considered

whether a firefighter who had been awarded a line-of-duty disability pension under section 4--110

of the Code was also entitled to benefits under the Act. In arguing that he was not, his municipal

employer insisted that the term "catastrophic injury" embraces only injuries that " 'severely limit the

earning power of the affected employee' " (Krohe, 204 Ill. 2d at 395) or render the employee

" 'incapable of engaging in any gainful employment' " (emphasis in original) (Krohe, 204 Ill. 2d at

397). Our supreme court disagreed. Concluding that the term is ambiguous, the court surveyed the

legislative debates on the bill proposing the Act. The court cited statements to the effect that the Act
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was designed to provide continuing health coverage for law enforcement officers and police officers

who are disabled in the line of duty and for their families. The Governor vetoed the bill, but the

General Assembly voted to override the veto. The Krohe court noted:

"Immediately prior to the vote [to override the veto], the bill's sponsor *** delivered the

following remarks:

'I'd like to say for the sake of the record what we mean by catastrophically injured.

What it means is that it is our intent to define "catastrophically injured" as a police

officer or firefighter who, due to injuries, has been forced to take a line of duty

disability.' [Citation.]" Krohe, 204 Ill. 2d at 398.

Based on this statement, the Krohe court construed the term "catastrophic injury" "as synonymous

with an injury resulting in a line-of-duty disability under section 4--110 of the Code." Krohe, 204

Ill. 2d at 400.

In O'Loughlin v. Village of River Forest, 338 Ill. App. 3d 189 (2003), decided eight days after

Krohe, the appellate court applied similar reasoning in a case involving a municipal police officer's

right to benefits under the Act. The O'Loughlin court concluded that "the legislature of Illinois

intended for the Act to cover police officers and firefighters who were forced to take a line-of-duty

disability." O'Loughlin, 338 Ill. App. 3d at 197.

Under Krohe and O'Loughlin, municipal police officers and firefighters need not establish

that they are disabled from engaging in any gainful activity. Section 4--110 of the Code provides

for a line-of-duty disability pension where a firefighter, "as the result of sickness, accident or injury

incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts

of duty, is found *** to be *** permanently disabled for service in the fire department." (Emphasis
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added.) 40 ILCS 5/4--110 (West 2004) (applicable to firefighters employed by municipalities with

fewer than 500,000 inhabitants); see also 40 ILCS 5/6--112, 6--151 (West 2004) (applicable to

firefighters employed by municipalities with more than 500,000 inhabitants). Section 3--114.1 of

the Code provides for a line-of-duty disability pension when a municipal police officer, "as the result

of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is

found to be *** disabled for service in the police department." (Emphasis added.) 40 ILCS 5/3--

114.1 (West 2004) (applicable to police officers in municipalities with fewer than 500,000

inhabitants); see also 40 ILCS 5/5--115, 5--154 (West 2004) (applicable to police officers employed

by municipalities with more than 500,000 inhabitants).

The problem here, as defendant correctly observes, is that, because plaintiff is neither a

municipal police officer nor a municipalfirefighter, he is ineligible for line-of-duty disability pension

benefits under the particular statutory provisions applicable to the public safety employees in Krohe

and O'Loughlin. If a line-of-duty disability pension were available under some other statute, it might

stand to reason that, in accordance with the analysis in Krohe and O'Loughlin, that statute would

govern eligibility for benefits under the Act. Unfortunately that is not the case here.

Plaintiff is a participating employee in the IMRF, which is governed by article 7 of the Code.

Defendant argues that section 7--150 governs plaintiff's right to benefits under the Act. Section

7--150(a)(1) provides for payment of total and permanent disability benefits to participating

employees who are, inter alia, "unable to engage in any gainful activity." 40 ILCS 5/7--150(a)(1)

(West 2004). However, neither eligibility for nor the amount of benefits under section 7--150

depends in any way on whether the employee was disabled in the line of duty. Moreover, the

General Assembly has specifically used the term "duty disability" or "line of duty" to describe the
No. 2--07--0569

1The General Assembly has similarly differentiated "line of duty" and "duty disability"

benefits from "occupational disability benefits" available to a broad range of state employees. See

40 ILCS 5/14--123 (West 2004).

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pension benefits available to municipal police officers and firefighters in sections 3--114.1, 4--110,

5--154, and 6--151 of the Code. 40 ILCS 5/3--114.1, 4--110, 5--154, 6--151 (West 2004). Section

7--150 uses no such language.

1

 Thus section 7--150 simply has no bearing on the central inquiry

under Krohe: whether a public safety employee suffered an injury resulting in a line-of-duty

disability.

In the trial court, defendant cited section 367h(3)(a) of the Illinois Insurance Code (215 ILCS

5/367h(3)(a) (West 2004)) in support of its argument that plaintiff's eligibility for benefits under the

Act must be determined with reference to article 7 of the Code. Section 367h permits a "deputy" to

continue group health insurance at his own expense during a disability period that "begins on the day

the deputy is removed from [the] sheriff's police department payroll because *** the deputy's

disability is established under Article 7 of the Illinois Pension Code." 215 ILCS 5/367h(3)(a) (West

2004). Defendant's reason for invoking this statute is not altogether clear. Apparently, defendant

hoped to bolster its argument that article 7 is the applicable pension law for purposes of determining

a sheriff's corrections officer's rights under the Act. However, section 367h does not the fix the basic

flaw in defendant's argument: article 7 does not provide for line-of-duty benefits, so it is not germane

to the test set forth in Krohe and O'Loughlin.

Defendant's reliance on section 367h is misplaced for the additional reason that, in all

likelihood, plaintiff was not a "deputy" within the meaning of that provision. Section 367h(2)

defines "deputy" as a "sheriff's law enforcement employee." 215 ILCS 5/367h(2) (West 2004).
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2Plaintiff testified at his deposition that he joined the McHenry County sheriff's office in

1992.

3

In doing so, we are cognizant that the term "line of duty" may have different meanings in

different contexts, even as applied to a single category of public safety employee. See Swanson v.

Village of Lake in the Hills, 233 Ill. App. 3d 58, 66-67 (1992) (holding that, for purposes of

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Subject to exceptions that are not applicable here, "sheriff's law enforcement employee" means "[a]

county sheriff and all deputies, other than special deputies, employed on a full time basis in the office

of the sheriff." 40 ILCS 5/7--109.3(a)(1) (West 2004). Where a county has created a Sheriff's Office

Merit Commission, all full-time deputy sheriffs are within the jurisdiction of the Sheriff's Merit

System Law (55 ILCS 5/3--8001 et seq. (West 2004)). Roche v. County of Lake, 205 Ill. App. 3d

102, 109 (1990). McHenry County has a merit commission for deputies, but since February 16,

1988,2 jail officers have been excluded from the merit system and have been "hired pursuant to a

nonmerited system administered by the Sheriff." Goodwin v. McHenry County Sheriff's Department

Merit Comm'n, 316 Ill. App. 3d 1238, 1240-41 (2000). Because jail officers are not merit system

employees, they cannot be deputies and, therefore, are not sheriff's law enforcement employees.

There is no merit to defendant's position that a sheriff's correctional officer must suffer a total

and permanent disability to qualify for health insurance coverage under the Act. As seen, it was the

intent of the General Assembly that health insurance be maintained for public safety employees who

are disabled in the line of duty, whether or not the disability prevents the employee from performing

another type of employment. However, because there is no statute providing a line-of-duty disability

pension, as such, to a sheriff's correctional officer, we must craft an appropriate test for determining

whether a disability was incurred in the line of duty.3 In our view, the test that applies to municipal
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conferring disability benefits on a municipal police officer, the term "line of duty" is used less

restrictively in the Public Employee Disability Act (5 ILCS 345/1 (West 2004)) than in applicable

provisions of the Code).

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police officers is a valuable source of guidance. Like police officers, who are charged with the

responsibility to maintain public order and safety within the general population, correctional officers

are responsible for maintaining safety within the inmate population of a correctional facility. To be

entitled to a line-of-duty disability pension, a police officer's disability must be connected to an "act

of duty," the essence of which is the existence of a "special risk, not ordinarily assumed by a citizen

in the ordinary walks of life." 40 ILCS 5/5--113 (West 2004). A correctional officer's encounters

with potentially violent inmates entail this sort of risk. Thus, we hold that a sheriff's correctional

officer's disability resulting from altercations with inmates is sustained in the line of duty.

The remaining question is one of causation. Plaintiff became unable to perform the work of

a correctional officer after injuring his neck and back in four separate incidents. The first and third

incidents--altercations with inmates--undisputedly satisfy the criteria of section 10(b) of the Act. On

the other hand, it is also undisputed that the second incident and the final one do not satisfy those

criteria. Plaintiff posits, however, that the Act does not limit benefits to a disability that "stems from

a single qualifying injury." He citesInternational Harvester Co. v. Industrial Comm'n, 46 Ill. 2d 238

(1970), which held that, where a worker is disabled after suffering an occupational injury and a

subsequent nonoccupational injury, the worker is entitled to worker's compensation benefits if "the

existing employment-connected condition is a causative factor in producing either the subsequent

injury or the subsequent disability." International Harvester Co., 46 Ill. 2d at 247. We see no reason

why a similar rule of causation should not apply here. Thus, if plaintiff's "qualifying" injuries--those
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suffered as a result of altercations with inmates--were a causative factor in his disability, they were

"catastrophic" and he should receive benefits under the Act. What role, if any, those injuries played

in disabling plaintiff from performing the duties of a correctional officer is a question of fact

precluding the entry of summary judgment.

Accordingly, the trial court erred in entering summary judgment on count I of the complaint.

The trial court also entered summary judgment for defendant on count II of the complaint, which is

predicated on section 1 of the Attorneys Fees in Wage Actions Act (705 ILCS 225/1 (West 2004)).

Section 1 provides, in pertinent part:

"Whenever [an] *** employee brings an action for wages earned and due and owing

according to the terms of the employment, and establishes by the decision of the court or jury

that the amount for which he or she has brought the action is justly due and owing, and that

a demand was made in writing at least 3 days before the action was brought, for a sum not

exceeding the amount so found due and owing, then the court shall allow to the plaintiff a

reasonable attorney fee of not less than $10, in addition to the amount found due and owing

for wages, to be taxed as costs of the action." 705 ILCS 225/1 (West 2004).

The trial court correctly reasoned that plaintiff could not prevail on count II unless he also prevailed

on count I. Thus, because the trial court entered summary judgment on count I, it concluded that

defendant was necessarily entitled to summary judgment on count II as well. However, because the

entry of summary judgment on count I was error, the disposition of count II cannot be sustained on

this basis.
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In the trial court, defendant argued that plaintiff's written demand was inadequate because

it did not set forth a specific sum. Plaintiff's letter to defendant provided, in pertinent part, as

follows:

"I have incurred $1,569.98 in expenses to pay for health insurance premiums to date, and

additional expenses will accrue in the future.

By this letter, I am demanding that McHenry County immediately pay any and all

health insurance premiums for myself and my qualifying family members pursuant to the

[Act].

This request is also being made pursuant to the Attorneys Fees in Wage Action Act

***. If the County fails to take immediate action to pay the sum of $5,742.09 for past health

insurance premiums and thereafter pay all future premiums as they come due pursuant to the

[Act], please be advised that an action seeking a declaratory judgment and for attorney's fees

will be filed in the Circuit Court."

Defendant argued that the demand was improper because it set forth two different sums. The

argument is meritless. Although plaintiff refers to having incurred $1,569 to pay for health

insurance, he makes but one demand in connection with his statutory right to collect attorney fees.

Plaintiff specifically sets forth the sum of $5,742.09 as the amount the county must pay to avoid a

lawsuit seeking declaratory judgment and attorney fees. It is this amount, and this amount alone, that

represents plaintiff's demand for purposes of his statutory claim for attorney fees. Accordingly, the

entry of summary judgment on count II was error.

For the foregoing reasons, we reverse the judgment of the circuit court of McHenry County

and remand for further proceedings.
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Reversed and remanded.

GROMETER and ZENOFF, JJ., concur.