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

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ TIMOTHY PHAL

IN, ) Appeal from the Circuit Court ) of Mc He nr y Co un ty. Plaintiff -Appella nt, )

) v. ) No. 05--MR--22 ) THE Mc HENRY COUNT Y SHER IFF'S ) DEPARTMENT, ) Honorab le ) Maureen P. McInty

re, Defendant-Appellee. ) Judge , Pres idin g.

_________

______________________________________________________________________ _ _ PRESID ING

JUSTICE

BYRNE de livered

the opinion of the c ourt: Plaintiff, Timothy Phalin, filed a two-count complain t in the cir cuit cour t of McHe nry County againstdefenda

nt, the Mc Henry

County sheriff 's depa rtment. Count I sought a declar atory judg ment tha t, pur sua nt to sec ti on 1 0 of th e Pu bl ic S afe ty Em pl oyee Ben efi ts Act (Ac t) ( 820 ILC S 320/1 0 (West 2004)), defendant

was obligated

to pay premiums on its health insurance plan for plaintiff and his "qualifying

family members." Count II soug ht an award of attorney

fees pursuant

to section 1 of th e A tt or ne ys Fees in

Wage Actions Act (705 ILCS 225/1 (West 2004)). The trial court entered summary judgment for defendant on both counts and plaintiff broug ht this appeal. We reverse and remand. Section 10

of the Act provide s, in pert inent par t: "(a) An employer who e mploys a full-time law enforc ement, correctional or correctionalprobationofficer, or firefighter , who *** suffers a catastrophic injury or is killedNo. 2--07--0569

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inthe line of

duty shall pay

the entire premium of the employ er's health insurance plan for the injured employee, the injured employee' s spouse, and for each de pendent child of the injured employee

until the child reaches the age of majority or until the end of the ca lendar year in whic h the child reaches the age of 25 if the child continues to be dependent for support or the ch ild is a ful l-time or

part-time student a

nd is depe

ndent for support. *** If the injured e

mploy ee subse quently

dies, the employ er shall c ontinue to

pay the entir e health insurance premium for the surviving spouse until remarried and for the dependent children under the conditions established in this Section. *** * * * (b) I n order f or the la w enfor cement, correctional or correctional proba tion officer, firefi gh ter, spou se, or de

pendent c hildren to be elig ible for i

nsuranc e cover

age un der this A ct, the injury or death must have occurred as the result of the offic er's r

esponse t o fresh p ursuit, the officer or firefighter

's response to what is reas onably believed to be an emergency , an unlawful act perpetrated by another, or during the investigation of a cri minal act ." 820 I

LCS 320/10 (West 2004). Incount I of his complaint, plaintiff allege d that on November 21, 1998, and Au gust 23, 2001, while emp lo yed by defendant as a full-time correctional off icer, he injured his neck during altercations with inmate s of the Mc Henry County jail. Plaintiff

further allege d that in bo th incide nts he was resp onding to

what he r

easonab ly b elieved

to be an e

merge ncy , an unlawful a ct, or bot h
. According

to the complaint, in November 2001, as a result of one or both of the injuries, plaintiff became unable to perfor m his duties

as a corre ctional o fficer . Plaintiff 's resp onses to a

request to admit served by de fendant

indicate that, in addition to the neck injuries suffered in November 1998No. 2--07--0569

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and August 2001, plaintiff injured his neck i nJanuary 1999 when a c

hair collapsed, and he injured his back during a training exercise on N ovember 1, 2001. Pla in tiff further admitted that, in June 2003, his employ

ment with d

efenda nt termina

ted, and he obtaine d employ me nt as a financial services associate with an insurance company . Plaintiff received temporary disability benefits from the Illinois Municipal Retirement Fund (I MRF) under section 7--146 of the Illinois Pension Code (Code) (40 IL CS 5/7--146 (West 2004)) from November 2002 until at least June 2003. Plaintiff was
never awarde d total and permanent disab il ity b enefit s under se ction 7-- 150 of the Code (40 I

LCS 5/7--150 (West 2004)). In count II, plaintiff allege d that he ma

de a dema nd in writing to defendant "for an a mount notexceedin

g the am ount actu ally due and owing tohim pursuant to the [Act]" and was therefore statutori ly e

ntitled to a

n award of attorney

fees. Defendant

moved for

summary judgmen t on both co

unts. I n support o f its motion, defendant argued that, in the

case of a corre ctional o fficer , a cata strophic injury is one for which the

office r is entitled to rece ive total a

nd perma nent disa bility benefit s from the

IMRFpursuant to section 7--150 of the Code, which

applies to municipal employees who ar e disabled from engaging

in any g ainful
ac ti vi ty. Defendant argued that plaintiff did not qualify for the section

7--150 benefits because, inter alia , he had obtained gainful employment as a fina

ncial services associate. Theref ore, ac cording

to defenda nt, plaintiff did not suffer a catastro phic injur y within the meaning of the Act. Defendant also argued that two of

the four injuries plaintiff suffered--the second a nd 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

deman d requ ireme nt of t he Att orneys Fees in Wa ge Actions Act because his demand letter di d not set f

orth a spe cific sum
.No. 2--07--0569

-4-

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any , show that there is no genuine issueas to any mater ial fact and that the moving pa

rty is entitle d to a judg

ment as a matter of law." 735 ILCS 5/2--1005(c) (West 2004). "The purpose

of a summary judg

ment proceeding is not to try an issue of fact, but rather to determine whether one exists ." Mydlach v. Daimler Chrysler Corp. , 226 Ill. 2d 307, 311 (2007). Summar y judgment should be allowed only " when the right of the moving party is clea

r and free from doubt." Purtillv. Hess , 111 Ill. 2d 229, 240 (1986). The trial court's ruling on a summary judg

ment motion is subject to de novo review. Jones v. Chic ago HMO Ltd. o f Ill inois , 191 Ill. 2d 278, 291 (2000). Employerssubject to

the Act mu st pay

for hea lth insura nce cov erage

for a pub lic safe

ty employee (and his or her

spouseand depe

ndent chi ldren) w

hen the e mploy ee suff ers a " catastr

ophic in ju ry" under the circumst

ances sp ecified

in section

10(b). D efenda

nt suffe red four injuries. There is no dispute that the first and third--which arose fr om alterca tions with ja

il inmates --meet t

he crite ria of section 10(b). Likewise there is no dispute that the second a nd fourth injuries d o not meet

those
cr it er ia . T he pr in ci pa l i ss ue is wh et he r p la in ti ff su ff er ed a " ca ta st ro ph ic " i nj ur y. In Krohe v. City of Bloomington , 204 Ill. 2d 392 (2003), our supreme cour t considered whether a firefighter

who had been awarded

a line-of-duty disa

bility pension under section 4--110 of the C ode was a

lso entitled to benefits under the Act. In ar guing that he was not, his municipal employer insisted thatthe term "catastrophic injury " embraces only injuries that " 'severely

limit the earning power of

the affec ted employee' " ( Krohe , 204 Ill. 2d at 395) or render the employee " 'incapable of eng aging in any gainfu l empl oyment' " (emphasis in original) ( Krohe , 204 Ill. 2d at 397). Our supreme court

disagreed. Concluding that the term is ambiguous, the court survey ed the legislative debates on the bill proposing the Act. The court cited statements to the ef fect that the ActNo. 2--07--0569

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was designe d to provide continuing health coverag e for law enforcement office rs and police officers who are disabled in the line of duty and f or their families. The Governor vetoed the bill, but the General Assembly

voted to override the veto. The Krohe court noted: "Immedi ately

prior to the vote [to override the veto], the bill's sponsor *** delivere d th e following remark s: 'I'd like to say for the sa

ke of the record what we mean by catastrophically

injured. What it mea

ns is that it

is our intent to define "catastrophically injured" as a police officer or firef ighter who, due t

o injuries , has bee

n force d to take a l ine of dut y disabili ty.' [Citation. ]" Krohe , 204 Ill. 2d at 398. Based on this statement, the Krohe court construed the term "catastrophic injury " "as sy nonymous 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'Loug hlin v. Village of

River Forest , 338 Ill. App. 3d 189 (2003), decided eight days after Krohe , the appe llate cou

rt applie d similar r

easoning in a case involving a muni cipal poli ce offi cer's right to benefits under the Act. The O'L oughlin court concluded that "the leg islat ure of I llinois intended for the Act to cover police officers a nd firefig hters who were fo rced to t ake a line-of-d

uty disabili ty." O'L oughlin , 338 Ill. App. 3d at 197. Under Krohe and O'L oughlin , municipal police officers and firefig hters ne ed not est

ablish that they are disabled from engaging

in an y ga i nful activity. Section 4--110 of the Code provides for a line-o f-duty

disability pension where a firefighter , "as the result of sickness, accident or injury incurred in or res ulting f rom the pe

rforman ce of an act of du ty or from the

cumulativ e effe cts of acts of duty , is found * ** to be ** * permanently disabled for ser

vice in the fire department ." (EmphasisNo. 2--07--0569

-6-

added.) 40 IL CS 5/4--110 (West 2004) (applicable to firefightersemploy ed by municipa lities with fewer than 500, 000 inhab itants); s e e also 40 IL CS 5/6--11 2, 6--151 (West 2004 ) (applic able to firefig hters emp loyed by

municipa lities with more than

500,000 inhabitants). Section 3--114.1 of the Code provides for

a line-of-duty disa

bility pension when a municipal police office r, "as t he resul t of sickness, accident or injury incurred in or resul ting f rom the pe

rforman ce of an act of du ty, is found to be *** disabled for service in the police department ." (Emphasi s added. ) 40 ILCS 5/3-- 114.1 (West 2004) (applicable to police officers in municipalities with fewer than 500,000 inhabitants); see also 40 IL CS 5/5--115, 5--154 (West 2004) (applicable to police officers employ ed by municipalities with more than 500,000 inhabitants). T he problem here, as defendant corre ctly observes, is that, bec ause plaintiff is nei ther a municipal police officer nor a municipal firefight er, he is ineligible for line-of-duty disability pension benefit s under the particular statutory provisions applicable to the public safety employees

in Krohe and O'L oughlin . If a line-of-duty disability pension were

available under some other statute, it might stand to reason that, in accordance with the analy sis in Krohe and O'L oughlin , that s tatute wo

uld govern eligibility

for benefits under the Act. Unfortunately that is not the case here. Plaintiff is a participating employ

ee in the IMRF, which

is governed by

article 7 of the Code. Defendant

argues that section 7--150 gove rns plaintiff's right to benefits under the Act. Section 7--150 (a)(1) provides

for pay ment of tot

al and pe rmanent disability

benefit s to partic ipati n g employees

who are, inter ali a , "unable to engage in any g ainful activity." 40 I LCS 5/7--150(a)(1) (West 2004). However, neither eligibility for nor the amount of benefits under section 7--150 dep ends 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 "l ine of dut y" to describe theNo. 2--07--0569

1 The General Assembly

has similarly differe

ntiated "line of duty" and "duty disab ility " benefit s from "occupational disability benefit s" avai lable toa broad range of state e mployees. See 40 IL CS 5/14--123 (West 2004). -7- pensionbenefits available to municipal police officers and fire fighters in sections 3--114.1, 4--110, 5--154, and 6--151 of the Code. 40 IL CS 5/3--114.1, 4--110, 5--154, 6--151 (West 2004). Section 7--150 uses n o such langua ge . 1 T hus section 7--150 simply has no bea ring on the central inquiry under Krohe : whether a public safety employee suff

ered an injury resulting

in a line- of-duty di sa bi li ty. Inthe trial court, defendant cited section 367h(3)(a) of the I llinois Insurance Code (215 I LCS 5/367h(3)(a) (West 2004 )) in supp ort of its a rgumen t that plai ntiff' s eligib ility

for bene fits under the Act must be determined

with reference to article 7 of the Cod e. Section 367h per

mits a "de puty " to continue group health insurance at his own expense during a disability pe riod that "begins on the day the deputy is removed fr om [the] sheriff's police department pa y roll b ecause *** t he dep uty's disability is established under Article 7 of the Illinois Pension C ode." 215 I LCS 5/3 67h(3)( a) (West 2004). Defendant's reason for invoking this statute is not altogether clear. Appare ntly, defendant hoped to bolster its argument

that article 7 is the applicable pension law for purposes of determining
a sheriff's corrections office r's rights under the Act. Howeve r, section 367h

does not the fix the basi c flawin defen

dant's a rgumen t: article 7 does not p

rovide f or line-o f-duty

benefit s, so it is not germane to the test set forth in Krohe and O'L oughlin
. Defend ant's reliance on section 367h is misplaced fo rthe addit ional re ason that , in all likelihood, plaintiff was not a "deputy " within the meaning of that prov ision. Section 367h(2) defines "d ep ut y" as a

"sheriff's law enforc ement employee ." 215 IL CS 5/367h(2) (West 2004).No. 2--07--0569

2 Plaintiff testifi ed at his d eposition that he jo ined the M cHenry County sheriff 's offi ce in 1992.
3 Indoing so, we are cognizant that the term " line of duty " may have dif ferent meaning s in different contexts, even as applied to a single categor y of public safety e

mployee. See Swanson v. Vill age of La

ke in the H ills , 233 Ill. App. 3d 58, 66-67 (1992) (holding that, fo r purposes of -8- Subject to exceptions that

are not applicable here, "sher iff's law enforcement employ ee" means "[a] county sheriff and all deputies, other than special deputies, employ ed on a full time basis in the office of the sheriff. " 40 ILCS 5/ 7--10 9.3(a )(1) (W est 20 04). W here a co unty has c reated a Sher iff's Office Merit Commission, all full- tim e d ep ut y s heriffs are with in the juri sdiction o f the Sher iff's M erit System L aw (55 IL CS 5/3--8001 et seq. (West 2004)). Roche v. County of Lake , 205 Ill. App. 3d 102, 109 (1990 ). McHe

nry County has a mer

it commission for dep

uties, but si nce February

16, 1988, 2 jail officers have been excluded from the merit sy stem and have been "hired pursuant to a
no nmerited

system administ ered by the Sheriff." Goodwin v. McHenry County Sheriff' s De partmen t Merit Comm 'n , 316 Ill. App. 3d 1238, 12 40-41 (20 00). Be cause ja il officers are not merit system employ ees, the y c annot be d

eputies a nd, there fore, a

re not she riff' s law enf

orceme nt employ

ees. There is no merit to defendant's position that a sheriff's corr ectional officer must suffer a total and permanent disability to qualify for health insurance coverag e under the Act. As seen, it was the intentof the Ge

neral As sembly

that hea lth insuranc e be main

tained f or public safety employees who
are disabled

inthe line of duty, whether or not the disability prevents the employ ee from performing another typ e of empl oyment. Howe ver, bec ause the

re is no statute

providing

a line-o f-duty

disability pension, as such, t

o a sheri ff's c orrect

ional off icer, we must craft an appropriate test for deter mining whether a disability was incurre d in the line of du ty. 3 In ou

r view, the test

that applies to municipalNo. 2--07--0569

conferri ng d isability

benefit s on a munic ipal polic e offic er, the t erm "line of duty " is used less restrictively in the Public Employ ee Disability Act

(5 IL CS 345/1 (We st 2004))than in applica ble provisions of the Code). -9- police officers is a v alu able source of guidance. L ike police officers, who are char ged with the responsi bility to maintain public order and safety within the general population, correctional off icers
are responsible for

maintaini ng safe ty w ithin the in

mate 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 c itizen inthe ordinary walks of

life." 40 ILCS 5/5--113 (West 2004). A correctional officer's e ncounters with potentia ll y vi olent in

mates entail this sort of risk. Thus, we hold that a sheriff's corre ctional of fi ce r' s d is ab il it y re su lt in g f ro m a lt er ca ti on s w it h i nm at es is su st ai ne d i n t he li ne of du ty. The remaining question is one of causation. Plaintiff became unable to perform the work

of
a correctionalofficer

after injuring his neck and back in four se parate 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 t hat the se cond inci dent and t he 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 q ualify ing injur y." He cites Internat ional Harves ter Co . v. Indu stri al Com m'n , 46 Ill. 2d 238 (1970), which held that, where a worker is disabled af ter suffering an occupational injury and a subsequent

nonoccu pational injury , the wor

ker is en titled to worker' s compens ation benefits if "the existing employ

ment-co nnected condition

is a causative factor in producing either the subsequent injury or the subsequ ent disabi lity." International Harve ster Co. , 46 I ll. 2d at 247. We see no reason why a similar rule of causa

tion should

not apply here. T hus, if pla intiff' s "quali fy

ing" in juries-- thoseNo. 2--07--0569

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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 indisabl ing plainti ff from performing the duties of a cor rectional officer is a question of fact preclud ing the e ntry of summar

y ju dgment. Ac co rd in gl y, the trial

court er red in en tering summary judgmen t on count I

of the complaint. The trial court also entered summary judgment for

defenda nt on coun

t II of the complaint, w

hich is predicated

on sec tion 1 of th e Atto rneys Fees i n Wage Actions Act (705 IL CS 225/1 (West 2004)). Section 1 p

rovides, in pertine

nt part: "Whenever

[an] *** employee brings a naction for wages earne d

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 brough t the a ction is ju stly due a nd owi ng, and that a demand was made in writing at least 3 day s before the action was brought, for a sum not exceedingthe amount so found due and owing, then the court shall allow to the plaintiff a
reasona ble attorney fe e of

not less than $10, in addition to the amountfound due and owing for wages, to be taxed as costs of the action." 705 IL CS 225/1 (West 2004). The trial court correctly

reasoned that plaintiff could not prevail on count I

I unle ss he also prevailed
oncount I. Th

us , 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 judgme

nt on count I was error, the disposition of count II

cannot be sustained on this basis.No. 2--07--0569

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Inthe trial co ur t, defen

dant arg ued that p laintiff

's writt en deman d was ina dequate because it did not set forth a specific sum. Plaintiff's letter to defendant provide d, in pertinent part, as follows: "I have incurred $1,569.98 in expenses to pay for health insuran ce p remiums to date, and additional expenses will accrue in the future. By th is le tt er , I a m d em an di ng th at Mc He nr y Co un ty i mm ed ia te ly p ay a ny a nd all health insuranc e premiu

ms for my

self an d m y q ualifying f

amily members pursuant to the [Act]. This request

is also being made pursuant to the Attorneys Fe es in Wage Action Act ***. If the County

fails totake immediate action to pay the sumof $5,742 .09 for pa st 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

argue d that the

demand w as improp er beca use it set forth two different

sums. The argument is meritless. Although p laintiff refer s to having incurre d $1,569 to

pay for hea lth insurance, he makes but

one dema

nd in connection wi

th his statu

tory right to collect a ttorney fees. Plaintiff specifically sets for th 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 repres ents pl ai nt if

f' s d em an d f

or pu rp os es of

hi s s ta tu to ry c la im fo r a tt or ne y fe es . A cc or di ng ly, the entry of summary

judgment on count II

was error. For the foregoing reasons, we reverse the judgment of the circuit court of McHenr y Co unty and rema nd for fu rther pr oceedin gs.No. 2--07--0569

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Reversed and remanded. GROMETER and ZENOFF, JJ., concur.