## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lelis v. Board of Trustees of the Cicero Police Pension F

und , 2013 IL App (1st) 121985

Appellate Court Caption L ORI A. L EL I S, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF THE CI CERO POL I CE PENSI ON FUN D, THOMAS KURATKO, KE N N E T H B EN SON
, JO SE PH F E U L N E R, CHA RL ES HERNA N D E Z
, KENNET H LYONS, i n Their Offic ial Capac ity
, and THE CI CERO POL I CE PENSI ON F UND, De fenda nts-Appellee s.

District & N o. First District, Third Division Docke t No. 1-12-1985

Filed May 22, 2013

Held (Not e: This syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff was entitled to an opportunity to pursue her 2011 claim for “line of duty” disability benef

its arisi n g from the back injury she suffe red in her work as a police office r, notwithstanding the fac t her 1999 claim for benef its based on a b ac k i n

j u ry she suffe red while lifting a body was denied on the g round that she was not disabled at that time, since the 1999 claim did not mention the lupus diagnosis that was raised in the 2011 claim, the 2011 claim was not a request for rec onsideration of the denial of the 1999 claim but rathe r was a new claim seeking benef its based on the ag gravation of the ear lier injury by the lupus diagnosis, and neither c ollatera l estoppel nor res judicata applied.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 11-CH-43037; the Hon. Rita M. Novak, Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Hughes Socol Piers Resnick & Dy m, Ltd., of Chicag o (Ter ence J

. Moran, Kar y n L . Ba ss, and Mark A . Cisek, of counsel) , for a ppellant.

Atwell & Atwell L aw Offic es, of Aurora (Charle s H. Atwell, of counsel), for a ppellees.

Panel J USTI CE PI ERCE delivered the judgme nt of the cour t, with opinion. Presiding J ustice Neville and J u s t i ce Sterba concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff L ori L elis filed an application for “line of duty” disability benef its on Marc h 5, 2011 pursuant to section 3-114.1 of the I llinois Pension Code (the Code). 40 I L CS 5/3-114.1 (West 2010)

. The Boa

rd of Trustee s of the Cicero Police Pension F und (the Boa rd) did not hear the merits of L elis’s 2011 application. Instead, the Boa rd found as a preliminary basis
t h at i t d id not have jurisdiction over her 2011 application. The Boa rd char acte rized her application as a reque st to rec onsider a previously adjudicate d application for benef its which

was denied in 2000. The Boa rd also ruled that the doctrin es o f res judicata and collater al estoppel bar

red c onsideration of he r 2011 re quest. ¶ 2 L elis filed a complaint in t h e ci rc u i t court of Cook County ag ainst the Boa rd and its i n d i v idual members (collectively the Board) seeking administrative review of the Board’ s decision. On J une 5, 2012, the circ uit court dismiss ed her complaint. The circ uit court found that i t d i d n o t have jurisdiction to hear the matter prese nted and found that the Boa rd’s ref usal to hear the application was “not ag ainst the manifest weight of the evidenc e, clea rly

err oneous or contra

ry to the law.” In this appea l L elis argues: (1) the Boa rd err ed in ref

using
to hear the merits of her 2011 application wher e a new fac tual basis was asser ted in support of her claim; (2) the circ uit court err ed in aff irming the Boa

rd’s order re fu s i n g to hear the merits of the 2011 application wher e new alleg ations wer e asser ted; and (3) the Boa

rd err ed in ref using to hear the application, finding it was barr ed by the doctrines of res judicata and collater al estoppel. L elis filed a timely notice of appea l on J uly 5, 2012 pursuant to I llinois Supreme Cour t Ru l e 303(a) (1) (eff

. May 30, 2008). For t he following reasons, we reve rse t h e Bo ard’ s and circ uit court’s decisions and rema nd this matter to the Boa rd for furthe r proce eding s consistent with this opi nion.

¶ 3 BA CKGROUND ¶ 4 Plaintiff, L ori L elis, wa s h i re d as a police office r and beca me a vested member of the Cicero Police Pension Fund on October 16, 1986. On M ar ch 1 0
, 1999, L elis filed an application for “line of d

uty ” p ension benef

its with the Boa

rd (the 1999 application). Plaintiff

-2-alleg ed in that matter that she was injured on Marc h 28, 1998, while lifting a dead body onto

a stretche r while in the course of her police duties. The Boa rd denied her application for “line of duty” pension be nefits on Marc h 30, 2000, findingher not disabled at that time. ¶ 5 Subsequently
, L elis filed a compl ai n t i n t h e ci rc u i t co u rt o f C o o k County for administrative revie w in April of 2000. The circ uit court sustained the Boa rd’s Marc h 30, 2000 administrative decision to deny “line of duty” benef its soug ht in the 1999 application. Plaintiff did not appeal the c ircuit court’ s ruling. ¶ 6 Eleven y ear s later, on J anuar y 11, 2011, L elis sent a letter to the Boa rd reque sting “line of duty” disability benef its. In completing the Boa rd’s interroga t o ri es and reque st for production, plaintiff wrote that her injuries occur red on Marc h 28, 1998 and J anuar y 2010. Plaintiff descr ibed her injury and ill ness as “phy sical–lower back” and “lupus–internal disease.” In her 2011 application and corr espondenc e with the Boa rd, plaintiff stated that she worke d for the police depar tment on light duty assig nments from May 2000 throug h to the date of the application, asser ting the light duty assignment was not a perma nent assig nment. ¶ 7 There afte r, the B oard he ld severa l meeting s wher e the 2011 application was place d on the ag enda. L elis was pre sent at those meeting s. On November 18, 2011, the Boa rd denied her application. The Boa

rd, without he aring evidenc e, conclude d her 2011 application was

a reque st to rec onsider her 1999 application and, there fore
, it did not have jurisd i ct i o n t o

rec onsider the Marc h 20, 2000 decision which denied benef its for t h e 1 998 injury

. Ad d i t i o nally
, the Boa

rd found her 2011 application was barr ed by the doctrines of r es judicata and collate ral e stoppel. ¶ 8 L elis filed an action for administrati v e review in the circ uit court of Cook County on Dec ember 15, 2011. In answe r, the Boa rd filed the entire administrative rec ord in this matter including, inter alia
, its November 18, 2010 decision and order
, corr espondenc e from L elis,

a form application for benef its, a memorandum from plaintiff’s counsel reg arding her condition and arguments in support of the Boa rd’s jurisdiction and transcripts of proce eding s wher ein the application was discussed. 735 I L CS 5/3-108(b) (West 2010). In aff irming the decision and order
, the circ uit court found the 2011 application was “void of any supporting alleg ation and/or documentation which may be sufficie nt in law to s u p p ort a curr ent acc ident, injury and/or claim.” The circ uit court also found that the Boa rd’s decision was “not ag ainst the manifest we i gh t of the evidenc e, clea rly err oneous or contra

ry to law.” This appea l followed.

¶ 9 ANALYSI S ¶ 10 In revie wing a final administrative decision under the Administrative Review L aw ( 735 I L CS 5/3-101 et seq. (West 2010)), this court’s role is to revie w the administrative decision rathe r than the circ uit court’s decision. CBS Outdoor, Inc. v. Departme nt of Transportation
, 2012 I L App (1st) 111387, ¶ 26. The Administrative Review L aw provides that our revie w extends to all questions of fac t and law prese nted by the entire rec ord. 735 I L CS 5/3-110 (West 2010); Aurora Manor, Inc. v. Departme nt of Public Health
, 2012 I L App (1st) 112775, ¶ 1 8 ; E s chbach v. McH

enry Police Pension Board
, 2012 I L App (2d) 111179 ¶¶ 16, 18; International Union of Operating Engineers, L o ca l 148 v. Illinois Departme nt of

-3-Employme nt Security
, 215 I ll. 2d 37, 61 (2005). The statute, howeve r, specific ally l i mits

j u d i cial revie w to the administrative rec ord. 735 I L CS 5/3-110 (West 2010); Rob b i n s v. Board of Trustees of the Carbondale Police Pension Fund
, 177 I ll. 2d 533, 538 (1997). The
appropr iate standard of revie w conce rning administrative decisions is conting ent upon whether the question beingrevie wed is one of fac t, one of law, or a mix ed question of fa ct and law. City of Belvide re v. Illinois State Labor Relations Board
, 181 I l l

. 2 d 1 9 1
, 205 (1998). ¶ 11 As a preliminary matter, L elis and the Boa rd asser t differ ent standards for revie w of the Boa rd’s Novem b er 1 8
, 2011 order

. L elis argues that our revie w is de novo as the Boa rd

mere ly considere d the threshold issue of jurisdiction and did not make fi n d i n gs of fac t or decide the 2011 application on the merits. The Boa rd contends the clea

rly err oneous standard applies in this instance since the Boa rd’s decision involved applying the doctrines of res judicata and collate ral e stoppel to the fac ts asserted in the a pplication. ¶ 12 I f the question is one of law, this co u rt ’s s t andard of revie w is de novo

. Branson v. Departme nt of

Rev enue , 168 I ll. 2d 247, 254 (1995). Under the de novo standard, littl e or no defe renc e is a ffor ded the decision-make r’s ruling

. Branson
, 168 I ll. 2d at 254. I f, howeve r, revie w o f an age n cy ’s decision involves a mix ed question of law and fac t, we apply the “cle arly err oneous” standard of revie w, aff ording some defe renc e to the ag ency ’s experience and expertise, reve rsing only when we are left with the “def inite a nd firm conviction that a mistake has been committed.” (Interna l quotation marks omitted.) C i n ku s v. Stickney Municipal Officers Electoral Board
, 228 I ll. 2d 200, 211 (2008). A revie wing court does not g ive the same defe renc e to a n administrative ag ency ’s conclusions of law as to its finding s of fac t. North Av enue Properties, L.L.C

. v. Zoning Board of Appeals
, 312 I ll. App. 3d 182, 185 (2000). “ Howeve r, if the a g ency relies on fac tors that the s tatute does not intend, fails
to consider an issue, or the decision is so implausible, the decision may be reve rsed as arbitra ry and capricious.” Ellison v. Illinois Racing B o a r d
, 377 I ll. App. 3d 433, 440-41 (2007). ¶ 13 In the case sub judice
, our revie w is de n o vo

. W h et h er an ad m i n i strative body has jurisdiction to adjudicate a c laim for bene fits is a question of law and is r eviewe d de novo

. Illinois Health Maintenance Organization Guaranty Ass’n v. Departme nt of Insurance
, 372 I ll. App. 3d 24, 31 (2007). In addition, the question of whether the doctrines of res judicata and collater al estoppel bar claims are questions of law, subject to de novo revie w. Dowrick

v. Village of

Downers Grove
, 362 I ll. App. 3d 512, 515 (2005); Illinois Health Maintenance Organization Guaranty Ass’n v. De partment of Insurance , 372 I ll. App. 3d 24, 31 (2007). ¶ 14 We now turn to the issues on appea l: whether the Boa rd had jurisdiction to decide L elis’s 2011 application and whe t h er t he Boa rd was barr ed from considering the merits of her application under

the principa ls of res judicata and collate ral e stoppel.

¶ 15 I . J urisdiction of the B oard ¶ 16 Fi rst , L elis argues that the Boa rd and the circ uit court err ed in finding th at t h e 2 0 1 1 Application was a reque st f or rec onsideration of it’s de nial of “line of duty” benef its unde r her 1999 application. The Boa rd argues that its 2000 decision cannot be rec onsidered or

-4-modified afte r the 35-day revie w period proscr ibed by the Pension Code and, there fo re , i t

does not have jurisdiction under the Pens i o n C o de to adjudicate her 2011 application. 40 I L CS 5/ 3-148 (West 2010). ¶ 17 J urisdiction of an a dminist rative ag ency is “[t] he re gulatory

or adjudica

tive power

of a
g overnme nt administrative ag ency over a subject matter or matters.” Bla ck’s L aw Dictionary 928 (9th ed. 2009). The Boa rd is an administrative ag ency empower ed to act only by the authority g ra n t ed to it under law. Rossler v. Morton Grove Police Pension Board
, 178 I ll. App. 3d 769, 7 7 3 (1 9 89). An administrative ag ency may allow a rehe aring only when permitted by statute and within the timing considerations provided by that statute. Klaren v. Board of F

ire &Police Commissioners
, 99 I ll. App. 2d 356, 360-61 (1968). Section 3-103 of the Administrative Review L aw pr ovides:
“Eve ry action to revie w a final administrative decision shall be commence d by the filing of a complaint and the issuance of summons within 35 day s from the date that a copy of the decision soug ht to be revie wed was serve d upon the party aff ecte d by the decision ***.” 735 I L CS 5/ 3-303 (West 2010). The Cicero pension board is go v er n ed by article 3 of the Code. 40 I L CS 5/3-148 (West 2010); Rutka v. Board of Trustees of the Cicero Police Pension Board
, 405 I ll App. 3d 563, 566 (2010). The Pension Code adopted the Administrative Revie w L aw, whic h provides a 35-day revie w period of order s, howeve r, it does not permit a rehe aring on or an appea l from order s 35 day s afte r their entry

. 40 I L CS 5/3-148 (West 2010); Rossler v. Morton Grove Police Pe nsion Board , 178 I ll. App. 3d 769, 773-74 (1989). The Code a lso does not allow extensions to the 35-day period for revie w. Id

. at 774. The Code is be nefic ial in na ture and is to be li bera lly construed in fa v or of the beneficiar y

. Philpott v. Board of Trustees of the City of Char leston Firefighters’ Pension Fund, 397 I ll. App. 3d 369, 372 (2010). ¶ 18 The Boa

rd’s denial of the 2011 application was based on its conclusion that the cause of the claimed disability involved an injury and claim for benef its which was previously finally adjudicate d in 2000 and, thus, the Boa rd lacke d jurisdiction to either (1) rec onsider its ear lier 2000 finding ; or (2) consider the merits of the 2011 application which re fer ence d the 1998 injury along with an illness diagnosed in 2010 which arguably ag g ravated the ear lier injury

. The circ uit court’s and the Boa rd’s ord er s at issue in this case are premised on the same analy sis. ¶ 19 In 2000, the Boa rd denied L elis’s reque st for “line of duty” benef its for the claimed 1998 i n j u ry to her lower back. The circ uit court aff irmed that ruling and no further appea l wa s taken. The Boa

rd argues that L elis is improperly contending on appea l that lupus exacer bated the 1998 injury without f

irst ha ving raised that argument befor e the B oard. For the rea sons that follow, we f

ind these ar guments unpersua sive. ¶ 20 The administrative rec ord contains various documents ref er en ce d in the decision and order which set forth the events leading up to the Boa rd’s denial of L elis’s new application. On J anuar

y 11, 2011, L elis sent a letter reque sting “line of duty” benef its to the Boa

rd. L elis filed a form prepa

re d by the Boa

rd entitled “Application for Pension” (application) dated Marc h 5, 2011. In the upper rig h t -hand corne r of the application, a handwritten notation “ame nded” appea

rs. The appli cation contained 4 questions reg arding the nature of the

-5-rele vant injury or illness and 10 questions reque s t i ng biogr aphica l information. L elis also

submitt ed answe rs to the Boa rd’s interrog atories and production reque sts which indicate the
reque sted benef

its wer e claimed as of Dec ember 9, 2 0 1 0

. T h e interrog atories wer e 1 comprised of 26 questions reg arding the nat u re of the injury and medical treatment. Specifica lly
, one interrog atory asks, “[d] escribe fully the sickness(e s), illness(es) or injury (ies) (i.e. phy sical or mental) of which you are complaining
, and fully descr ibe the parts of the body involved or aff ecte d.” L elis answe red, “phy sical–lower back” and “lupus–internal disease.” On Marc h 7, 2011 and M ar ch 14, 2011, L elis sent letters to the Boa rd expressing dissatisfaction on how her case was being handled and questioned whether she was being fairly t re ated. She also wrote that she suffe red from a chronic autoimmune disease that “re stricts my abilities to perf orm the duties of a police office r.” On April 11, 2011 the Boa

rd sent L elis notice that a hearing was schedule d to deter mine jurisdiction over her claim. The notice advised that her application ref ere nces a specific incident of Marc h 28, 1998 resulting in a lower back injury

. The notice ref ers to the ear lier denial of that claim in 2000 and ex plains that her 2011 application inv o l v es the s ame operative facts. On J une 9, L elis’s attorney s ub m i tted a memorandum that set forth her curr ent phy sical condition, ref ere ncing both her back injury and the lupus diagnosis, as the basis for her application and
arguments in support of the Boa rd’s jurisdiction over her application for “line of du t y ” benef its. The Boa

rd later denied her application without hearing evidenc e. The decision and order specific ally

ref ere nces the above- mentioned documents a nd corr espondenc e. ¶ 21 First, the Boa

rd contends that L elis has failed to arg ue befor e the Boa

rd t h at h er b ac k injury was ag g ravated by her illness and there fore any mention of the ag g ravation should be

wa ived i n this appea l. We disag ree

. The administ rative recor d shows L elis’s 2011 re qu es t for “line of dut y ” b enef

its ref ere nces both the 1998 injury to her lower back and her 2010 diagnosis of lupus, a chronic autoimmune disease. In response to the Boa rd’s interrog atories, L el i s an s wer ed that her back injury was ag g ravated or exacer bated due to her disease. I n addition, in written submissi ons to the Boa rd via letter s and l eg al m emora ndum, L elis and her attorney explained that in 2010 she was diagnosed with the disease lupus, which aff ects h er j o i n t s and muscles and restric ts her ability to perf orm duties as a police office r. L el i s further stated that since 1998 she “has endure d an incre asing ly deg ener ative back injury that has worsene d beca

use of a sepa ra t e diagnosis of Lupus.” There fore
, we find L elis is not barr ed from arguing that in her subm i s s i o n s t o an d at meeting s with the Boa rd that she
reque sted “line of duty” benef it s du e t o t h e ag g ravation of a previous injury due to her illness. ¶ 22 Second, the Boa rd considered thi s ref

ere nce of the 1 9 9 8 i n

j u ry was sufficient t o allow for the char acte rization of her application t o b e a re quest for rec onsideration of the 2000 denial of benef

its regard l es s of the new fac t asser ted, her illness. The Boa rd found that L elis’s 2011 application was n o t an inconsistent position from her 1999 application. The

Duri ng ora l ar gum ent the Boar d exp la ine d Lel is ini ti al ly sen t the J anu ary 11
, 2011 le tt er 1

re que st ing dis abi li ty ben ef it s whic h cau sed the Boar d to sen d her the app rop ri at e “ A p pli cat ion ” for m . The Boar d ag re ed tha t Leli s likel y complet ed t he r equ est to pr oduc e a nd i nte rr ogator ie s a nd sub m it te d t hem with th e c om ple te d ap pli cat ion

.

-6-rec ord does not support this arb i t ra ry char acte rization which deprived L elis of her rig ht to

reque st disability benef

its based on her curr ent condition. L elis’s 2011 application and documents submitt ed to the Boa rd prese nted a sufficie nt basis to asser t a reque st for benef

its based on her curr ent condition and rec ent diagnosis and, there fore
, was not a reque st to

rec onsider but a ne w claim for pension bene fits. ¶ 23 The Boa

rd considere d L elis’s 2011 application, her corr espondenc e with the Boa rd and other documents submitt ed during the pendenc y of the proce eding s. These documents, taken toge ther, do not show a reque st for re consideration or rehearing of the 2000 order

. Rather, L elis reque sted benef

its for the ag g rava

tion of her previous injury associate d with the lupus diagnosis. Her “incr easin gl y d eg ener ative back injury” was ag g ravated and “wor sened beca use of a separ ate diagnosis of Lupus.” Clearly
, the Boa rd has jurisdiction to hear L elis’s evidenc e and deter

mine whether she curr ently is disabled by a back injury
, whether the injury was duty -re lated and whether lupus is contributing to her ba ck proble ms. ¶ 24 The Boa

rd argues that L elis did not provide it with an application asser ting a new claim. This i s l i t era lly corr ect since the application form itself does not ref er to her rec ent lupus diagnosis. Howeve r, had the Boa rd co nsidered the entire rec ord as its order ref lects, the

en t i re rec ord clearly indicates the claim for benef its is based on the contention her curr en t phy sical condition rende rs her unfit for duty

. Simpl y put, the rec ord informs the Boa rd that L elis believes she is unfit for duty beca use she has lupus, which is ag g ravating her back. The Boa rd prejudg ed her application by deter mining that it did not have jurisdiction to adjudicate h er 2011 application without considering the new fac ts prese nted. This denied L elis the opportunity to prese nt her case as to why she believes she is entitled to “line of duty” disability benef

its a nd why
, specific ally
, her rec ent illness ha s exacer bated the back injury

. Whether, when and to what extent her back was injured is obviously an issue to be decide d
at a full hearing on her application–alo n g wi th the lupus issue–not summarily dismiss ed throug h consideration of the prehe aringmateria ls contained in this rec ord. ¶ 25 Althou gh t h e Bo ar d argues that L elis did not submit information showing the lupus diagnosis and the illness’s aff ect on her prior injury
, both parties agree that at the preliminary stag e of the Boa

rd’s finding
, L elis was n ot require d to prove any claim reg arding her condition. There fore
, the inclusion of the additional and independe nt basis for benef its was sufficie nt to alleg e a new claim. In essenc e, L elis pled a new condition w arr anting benef its and did not have to pr ovide evidenc e at that stag e of the proce eding s. ¶ 26 Fur

thermore
, in 2000 the Boa rd rec og nized that L elis would be allowed to claim injury
to her lower back at s o m e l ater date if the fac ts war rante d. In Hughes-L elis v. Town of Cicero, No. 2000 CH 6407 (Cir. Ct. Cook Co.), the circ uit court found that “[a]s counsel for the Boa rd indicated, if in fac t the plaintiff is unable to perf orm the duty to which she is assig ned at a future date, Hughes-L elis can resubmit her application for disability pension.” Having taken this position previously
, the Boa rd cannot now claim that L elis has improperly raised the exacer

bation of that injury 11 y ear s later in a new application asser ting additional and newly develope d fac ts and circ umstances supporting her claim. Also, and signific antly
, the circ uit court expressly found that “any subsequent re- submissi on for a disability pension

or a resumption of fully -duty [ sic ] work will not be judicially estopped by [L elis’s] position in these proce eding s that she is at least temporarily disabled–due to the fac t that this position

-7-is not inconsistent w ith a later claim of disability to do light duty work or ability to do fullduty work.” Also of not e is the Board’ s 2000 decision and or der c ontains a fa ctual finding that L elis testified to injuring he r bac k while moving a dead body

while on duty ; however
, based on the confl i cti ng medical evidenc e it found she was “not currently disabled.” (Emphasis added.) This finding further supports our decision that t h e Boa rd’s order and decision ca

nnot stand. ¶ 27 We also note the Boa rd has the authority to awa rd benef its for a disabled office r re sulting from a cause other than the perf ormanc e of an act of duty

. 40 I L CS 5/3-114.2 (West 2010). Thus, afte r a hearing it is fea sible the evidence m ay s up p o rt a finding of dut y disability or nonduty disability or no disability

. The Boa rd has jurisdiction over L eli s’s claim and the Boa rd is require d to rule base d on the evidenc e pre sented.

¶ 28 I I

. Res Judic ata and Collatera l Estoppel ¶ 29 The Boa

rd argues the doctrines of res judicata and collater al estoppel bar L elis’s claim. L elis disag ree s and contends she provided new fac ts in the 2011 application and supporting documents which wer e unavai l ab l e p rior to the adjudication of her 1999 application, such that neither res judicata nor collate ral e stoppel bars he r 2011 re quest for be nefits. ¶ 30 The doctrines of resjudicata and collater al estoppel apply to decisions by administrative
ag encie s that are adjudicator y , judicial, or quasi-judici al

. Dow rick v. Village of Downers Grove
, 362 I ll. App. 3d 512, 516 (2005). Under the doctrine of res judicata a final judgme nt

on the merits rende red by a court of competent jurisdiction will act as an absolute bar to any subsequent actions betwee n the same parties or their p ri v i es involving the same cause of action. Hudson v. City of Chicago
, 228 I ll. 2d 462, 467 (2008) (citing Rein v. David A. Noyes & Co.
, 172 I ll. 2d 325, 334 (1996))

. Res judi cata bars what was decide d in the first action and also what could have been decide d in the prior action. Id

. (citing La Salle National Bank

v. County Board of School T rustees , 61 I ll. 2d 524, 529 (1975))

. Three require ments mu s t be met for res judicata to ba r a claim: (1) a final judgme nt on the merits has been rende red by a court of competent j uri s diction; (2) an identity of cause of action exis ts; and (3) the parties or t h ei r privies are identical in both actions. Cooney v. Rossiter
, 2012 I L 113227, ¶ 18. ¶ 31 An adjudication is considere d “on the merits” when it “dete rmines the parties’ respe ctive rig hts and liabiliti es based on the fac ts befor e the co u rt .” Lehman v. Continental Health Care, Ltd.
, 240 I ll. App. 3d 795, 802 (1992) (citing Fried v. Polk Brothers, Inc.
, 190 I ll. App. 3d 871, 878 (1989))

. A cause of action is “a single g roup of fac ts g iving the plaintiff a rig ht
to seek redr ess for a wrong ful act or omission of the defe ndant.” Torcas s o v. Standard Outdoor Sales, Inc.
, 157 I ll. 2d 484, 490 (1993). F or a pr evious judg ment to be conc lusive of a claim under the doctrine of r es j u di cata , “it must appea r clearly and certainly that the ident i ca l an d p re cise iss ue was decide d in the previous action.” County of Cook v. Illi nois Local Labor Relations Board, 214 I ll. App. 3d 979, 985 (1991). ¶ 32 Collateral estoppel applies when a subsequent action is filed involving the same pa rties and when a prior final judgme nt was enter ed on the identical issue raised in the subsequent action. Ree d v. Retireme nt Board of the Firemen’ s Annuity & Bene

fit Fund
, 395 I ll. App. 3d

-8-1, 6 (2009).

¶ 33 Neither party disputes that the Boa rd’s 2000 decision and subsequent ruling by the circ uit court constitut e a “fina l judgme nt ” o n the m erits for the purposes of both res j udicata and collater al estoppel. In addition, neither party disputes that the s ame parties are i nvolved i n both proce eding s befor e the Boa rd. The contention in this appea l is whether the same claim
or transa ction is involved in thi s application and he r 1999 application. ¶ 34 In River Park, Inc. v. City ofHighland Park
, 184 I ll. 2d 290, 309-11 (1998), the I llinois Supreme Court adopted the “tra nsactional” test as the exclusive test for deter mining whether identity of cause of action ex ists for purposes of res j udicata

. Under the t ransa ctional t est, “a claim is viewed in ‘fa ctual terms’ and considere d ‘cote rminous with the transac tion,
reg ardle ss of the number of substantive theories, or varia nt forms of relief flowing from those theories, that may be available to the plaintiff; *** and re gardle ss of the variations in the evidenc e neede d to support the theories or rig hts.’ ” Id

. at 309 (quoting Restatement (Second) of Judgments § 24 cmt. a, at 197 (1982)). ¶ 35 The Boa

rd at its meeting s considere d wheth er i t could hear L elis’s 2011 application, without consideration of the fact s prese nted by her 2011 application and supporting documents. To deter

mine whether the same cause of action is asser ted in a subsequently filed cl aim, the Board was require d to consider the fac ts which gave rise to the claim for re l i ef

. Fuller Family Holdings, LLC v. Northern Trust Co. , 371 I ll. App. 3d 605, 617 (2007). ¶ 36 Only fac ts and conditi o ns available at t he ti me of prior judgment are considered in res judicata analy sis. Dowrick v. Village of D owners Grove
, 362 I ll. App. 3d 512, 517 (2005). New materia l fac ts occur

ring afte r the prior judgme nt was enter ed, may be taken alone or in conjunction with the prior f acts, to for

m the basis of a subsequent action, not pr eclude d by the prior adjudication on the merits. Id

. (citing Restatement (Second) of J udg ments § 24 cmt.
a, at 203 (1982))

. A plaintiff’s injury which was not found a disabilit y at t h e t i m e of a Pension Boa

rd hearing does not mean that the condition cannot chang e and become a d i sability at a later date. Dowrick v. Village of Downers Grove
, 362 I ll. App. 3 d 5 1 2
, 5 1 7 (2005). ¶ 37 The proponent seeking to invoke the doctrine of res judicata car ries th e b u rd en of proving it applies. Taylor v. Police Board
, 2011 I L App (1st) 101156, ¶ 20. Her e, the Boa rd has failed to provide this court with support for its argument that the new information included in her application, corr espondenc e and interrog atories does not contemplate a new fac t or fac ts, not available prior to the Boa rd’s 2000 decision
, n ecessary of consideration. Rather, the B oard summar ily conclude s, both in it s response brief and in its November 18, 2011 order
, that her rec ently diagnosed illness and the asser ted exacer bation of a prior injury incurre d on duty
, as descr ibed in her corr espondenc e, interrog atories and memoranda befor e the Boa rd, was not an asser

tion of new fac ts. The application and related documents cannot

rea sonably

be viewe d as any

thing short of a claim diffe rent fr om that made in 1999. Ther e is nothing in this rec ord that remotely indicates a disease was part of her injury claim in 1999 and the rec ord as a whole indicates that a dis ease is a part o f her curr ent claim. The Boar d

s u m m arily deprive d her of an opportunity to make her case

. There fore
, the Boa rd has n o t sustained its burden in provingthat res judicata and collate ral e stoppel apply

.

-9-¶ 38 L astly
, L elis argues that judicial estoppel should bar the Boa rd from asser

ting an estoppe l defe nse. Having found that L elis is entitled to have a full hearing on her cl ai m , i n cl uding issues conce rning the relationship, if any , of her disease, her back condition and her fitness for duty , we ne ed not addr ess this issue.

¶ 39 CONCLUSI ON ¶ 40 For the fore g oing rea sons, the d ec i s i o n s of the circ uit court of Cook County and the Boa rd of Trustee s of the Cicero Police Pension Fund are reve rsed and the case is rema nded to the Boa

rd for proce eding s consistent with this opi nion.

¶ 41 Reverse d and re manded.

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