FIFTH DI VISI ON June 1, 2007

Nos. 1-05-1501 & 1-05-1502 (consolidated)

CAROL ROKOSIK,

Plaintiff -Appella nt,

v. THE RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND B ENEFIT FU ND OF CHICAGO, Defendant-Appellee.

________________________________________________ ELLEN PRESTON,

Plaintiff -Appella nt,

v. THE RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND B ENEFIT FU ND OF CHICAGO, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) )) )) )) )) )) )) )) Appeal from the Circuit Court of Cook County

Honorab le William O. Ma

ki, Judge Presi ding.

Appeal from the Circuit Court of Cook County

Honorab le William O. Ma

ki, Judge Presi ding.

JUSTICE O'MARA

FROSSARD d

elivere d the opini on of the c ourt: Plaintiffs Carol Rokosik and Ellen Preston each filed separate complaints for administrative review in the circuit court against def endant, the Retirement Board of the1-05-1501 & 1-05-1502 (consolidated)

2

Firemen's Annuity

and Benefit Fund of Chicago ( Board). In the ir complaints, both plaintiffs challen ged Bo ard dec isions gr

anting t hem widow 's non- duty-relate d annuity benefit s pursuan

t to section 6 -141.1 of

the I llinois Pens ion Code ( Code or Pe nsion Code ) (40 I

LCS 5/6 -141.1 (We st 2004)), rather than the grea ter widow's duty-related annuity benefits pursuant to section 6-140 of the Code (40 IL CS 5/6-140 (West 2004)). In addition, Preston's complaint sought a wr it of mandamus ordering the Board " to notify all potential widows of their rig hts under the [Pension Code] and to conduct a hearing conforming to f air notice and due process." A section 6-141.1 widow's non-duty -related annuity

("non-duty

death benefit" or "nonduty annuity ") entitles a widow of a firefig hter who was not retired and had at least 11⁄2 y ears of creditable service at the time of his death to the g reater of (1) "30% of the sa lary attac hed to the rank of first class firefighter in the c lassified career service at the time of the fireman's death" or (2) 50% of the retirement annuity for which her husband would have been eligible had he retired the day bef

ore his death. 40 ILCS 5/6-141.1 (West 2004). A section 6-140 widow's duty -related annuity ("duty

death benefit" or "duty

annuity") e

ntitles a widow to a benefit equal to 75% of her husband's salary . 40 IL CS 5/6-140 (West 2004). On September 10, 2003, the circuit court entered an orde r dismissing the count of Preston's complaint which sought a writ of mandamus . On April 22, 2005, the circuit court entere d two sepa

rate wr itten orde rs affir ming the Board' s decisions deny

ing plai ntiffs'request s for duty annuities. On May 9, 2005, Preston filed a notice of appeal seeking r eview of both the circuit court's order dismissing her re quest for a writ of mandamus and its order affirming the Board' s denial o f her re quest for a duty annuity . On that sa

me date, Rokosik fil ed a sepa rate1-05-1501 & 1-05-1502 (consolidated)

3

notice of appeal seeking review of the circuit court's order aff irming the Board's denial of he r request for a duty

annuity. There after, on July 29, 2005, this court entere d an order consolidating the two appeals pursuant to an agree d motion filed by counsel for Preston a nd Rokosik. Plaintiff s contend on appea l that they are ent itled to dut

y a nnuities u nder sec tion 6-140

because their husbands were receiving oc cupational disability benefits at the time of the ir deaths for diseases that permanently prevented them from returning to active se rvice. In addition, Preston contends that the trial court should have granted her request for a writ of mandamus

. BACKGROUND Ellen Preston Ellen Preston is the widow of John Preston (Mr. Preston). Mr. Preston began working for the Chicago fire department in November 1974, a nd on October 22, 2000, at age 49, he suffe red a heart attack while on duty . Following his heart attack, Mr. Preston applied for a n occupational disability benefit, and in Dec ember 2001 the Board conducted an e videntiary hea

ring on that application. Various medical reports and records we re presented at that hearing. A report by B oard physician Geor

ge S. Motto, who evaluated Mr. Preston following this event, relate d the circumst ances su rroundin g the he art atta

ck as fol lows:

"[W]hile on[] duty at a firehouse on October 22, 2000 [Mr. Preston] developed a[n] uneasy feeling and a tightness in his upper chest by his clavicle

(collar bone). He then walked up a flig ht of1-05-1501 & 1-05-1502 (consolidated)

4 stair[s] and when he entered his room, in the presence of a fr iend actually had a

syncopic episode f

rom which he awakened. He had very little pain

althoug h he desc ribes mar ke[d] diaphoresis (sweating). He finally

decided to seek help in the hospital. He was brought to St. Francis Hospital in Blue I sland where he was having an acute anterior wall my ocardial infarction." Dr. Motto's report additionally noted that Mr. Preston "suffered an acute myocardial infa

rction which required stenting and then ang ioplasty" and opined tha t "[b]ecause of his coronary artery disease he is disabled and should not perform paramedic duties." A report prepared by

Dr. Joseph V. Messer, who also evaluated Mr. Preston, noted that Mr. Preston had "generally enjoyed g ood health except for significant obesity with a 100 pound weight gain ov er the pa st five y

ears, un til [the date

of his hea

rt attack], when he

lost consciousness after climbing the stairs to his office." Dr. Messer noted in his report that he "urged [Mr. Preston] to contact his primary care phy sician for an evaluation of his serum lipids with appropriate therapy

if indicated, and for referral to a weight loss program such as 'Weig ht Watchers' in an effort to reduce his significant, near-morbid exogenous obesity ." At the hearing on his application for occupational disability benefits, Mr. Preston was asked, "Did y

ou develop your he art condition during the time y ou were in service with the Fire Department?" Mr. Preston responded "I can't say . I believe I

did. I had a heart a

ttack the morning I went to work on Oc tober 22, of 2000." Mr. Preston additionally testified that he had no knowledge of any

heart problems prior to his heart attack. Dr. Motto, the only witness other1-05-1501 & 1-05-1502 (consolidated)

5

than Mr. Pr

eston to te stify

at the he aring, opined tha t Mr. Pres ton's dis ability

was per manent. At the con

clusion of the hear ing, the Board g ranted M r. Preston an occ

upationa l disease disability benefit pursuant to section

6-151.1 o f the Pens ion Code (40 IL CS 5/6-151. 1 (West 2000)), and upon the motion of one of the Board members, found tha t the disability was permanent. The Board's " Decision and Findings of Facts," dated December 19, 2001, states that Mr. Preston "is unable to perform his duties in the Chicago Fire Department by r

eason of heart disease resul ting solely from hi s service as a fi reman." Mr. Preston died on September 10, 2002, at age 50; the death ce rtificate states that the cause of death was coronary artery disease. Following her husband's de ath, Preston submitted an appli catio n for w idow's annui ty. The Boa rd sub seque ntly grant ed Pre ston an ord inary wid ow's annuity pursuant to section 141.1 of the Pension Code a nd notified her of its decision in an October 2002 letter. On December 30, 2002, Preston filed a two-count complaint for a dministrative review. Count I alleged " [t]he decision of the Board should be reversed on the gr ounds that as a matter of law and the manife st weigh t of the e vidence , [Preston] is

entitled t o section 6-140 duty

death widow benefit." In a

ddition, count I asserted that the Boa rd's actions violated Preston's due process rights to a fair hearing and specifically

alleged that "the [Board' s] notice of hearing and post-hea ring le tters to pl aintiff f

ailed to provide a

ny n otice of any materia l facts or controve rsy to which [she had a] right to be present, retain an attorney , present evidence, or cross-examine witnesse s." Count

II allege d that "[a

] substantia

l number o f widows w

hose husb ands died

while in re ce ip t o f d ut y di sa bi li ty b en ef it s h av e a cl ea r l eg al ri gh t t o S ec ti on 6- 14 0 w id ow 's an nu it y" and asse rted tha t a substa ntial numbe

r of widow s "are

now rec eiving s

ubstantia lly l ess beca

use1-05-1501 & 1-05-1502 (consolidated)

6

the Board failed to afford a due process hearing as require d by the I llinois and United States Constitutions." Based on these allegations, Preston sought a writ of mandamus ordering the Board t o notify all poten tial widow s of their

rights u nder the Pension Cod

e and to c onduct a hearing conform ing to fa ir notice and due process. The trial court dismissed count II of Preston's complaint pursuant to a motion filed by the Board. However, the trial court re manded count I of Preston' s complaint to the Board for a hearing, finding that the Boar d failed to satisfy the re quirements of due process before rende ring its decision on Preston's application for an annuity benefit. The rec ord on ap

peal re flects that on remand counsel for Preston submitted several exhibits, inc luding pa

pers re lating to

this litig ation, le gislativ e activit ies rela ted to the Illinois Pension Code, and a transcript of a Board meeting regarding a fire

man unrelated to Mr. Preston. The record does not reflect that counsel f or Preston presented any

evidence regarding

an alleged

connec tion betwe en Mr. Pre ston's c oronary artery disease and a spe cific inc ident re lating to his work as a paramedic. Following the remand hearing , the Board concluded Mr. Preston was not a fire man killed in the per formanc e of duty

pursuant to section

6-140, a nd there fore his

widow wa s not entitl ed to a duty annuity

benefit. In support of this conclusion, the Boa rd found: "7. There is no languag e contained in 40 ILCS § 5/6-140 that specifically state s that the widow of a fireman who was receiving occ

upationa l disease disability benefit s, is entitl ed to receive the annuity

provided in that Section upon the death of the fireman.1-05-1501 & 1-05-1502 (consolidated)

7 8. Pay ment of a Duty Death Widow's Ann

uity benefit pursuant to 40 IL CS § 5/6-140 to the widow of a fireman who died while in r eceipt o f occupa

tional dise ase disa

bility benefit s would result in the widow receiving an annuity that was greater (75% of salary) tha

n the occupational disease disability benefit that the fireman was receiving (65% of salary)

prior to his death. 9. Ellen M. Preston did not produce sufficient medical evidence to support a finding that John T. Preston was prevented from subsequently re suming active service in the Chicago F ire Department as a result of his performance of an act or acts of duty." In addition the Board' s decision included the following conclusion: "[I]t would not be consistent with the expressed intent of the Legislature to have

granted a benefit to the widow of a f ireman whose hus

band died while re ceiving

occupa tional dise ase disa

bility benefits that [were] greater than the disability benefit that the husband was receiving while he was a live." Thereafter, on

January 6, 2005, Pr

eston file d a memor

andum in th e circu

it court in support of

her comp laint for

administr

ative re view of the Boar

d's dec ision. I

n that memorandum, Preston c ontended

that "[a] d

uty disability benefit is the same

as an occ upationa l disease disability benefit" a

nd that "widows of both duty a nd occupationally disabled f iremen are entitled to the same benefits of section 6-140." The circ uit court upheld the Board's decision deny ing1-05-1501 & 1-05-1502 (consolidated)

8

Preston's request for a duty annuity. I

n support of its holding, the court explained: "The Retirement Board corre ctly points out that the Pension Code does

not provid

e benef its to widow s grea

ter than the bene fits firemen are ent itled to re ceive w

hile still a live. The court fin ds this argume nt persua sive. John Pr

eston wa s not awa

rded a du ty disability which would have entitled him to 75% of his salary while still living a nd which would have

made his w

idow eligible for 75% of his salary

upon his death. John Preston was awarded an occupational disability which entitled him to 65% of his salar y while livin

g. Ther e is no provision in the

Pension Cod

e that wou

ld allow Ellen Preston to receive 'Death in the line of duty ' benefits at 75% of her husband's salary , and no provision in the Pension Code that would allow Ellen Preston to continue to receive 65% of her husband's salary . *** In cities with over 500,000 people, the I llinois legislature has chose n to awar d a high er bene fit to fire

men elig ible for d

uty disability. Therefore , a duty disability and an occupational disability are clea

rly not the same bene fit. *** This court agrees with the Re

tirement Board t hat Ellen Preston is

not elig ible to receive greater

benefits than her spouse was eligible to rece ive while he was still living." Carol Roko sik1-05-1501 & 1-05-1502 (consolidated)

9

Carol Rokosik is the widow of Edward D. Rokosik (Mr. Rokosik). Mr. Rokosik began working for the Chicago fire department in October 1978. In Septe mber 1998, Mr. Rokosik was diagnosed with kidney

cancer. Following this diagnosis, Mr. Rokosik applied for a n occupational disability benef it, and in February

2000 the Board conducted an evidentiary hearing on that application. At that hearing, Mr. Rokosik testified that he developed his cance r during the time that he was in service with the Chicago fire depa rtment. Mr. Rokosik indicated that he had been exposed to heat, noxious fumes and gases while employ ed as a firefighter. The f

ollowing

ex ch an ge th en to ok pl ac e b et we en Mr . R ok os ik an d t he Bo ar d' s a tt or ne y:

"Q. Do y ou have any

specific incidents that you w ould point to? A. No, sir. Q. You are just talking about the cumulative effec t of exposure? A. Yes." Board phys ician Dr . Motto test ified tha t he examine d Mr. Rokos ik and re viewed h is medical r ecords. Dr. Motto o

pined tha t Mr. Rokosi

k was not a

ble to per form his du

ties as a firefighter "becaus e of his kid ney cancer and the result ant need for su rgery and other treatment s." In addition, Dr. Motto testified that several medica l studies he had reviewed found an increase d risk of kid

ney cancer in firef ighter s and indic ated "a

connec tion betwe en an activity as a firefighter and the develop ment of kid ney cancer." At the con

clusion of the hear ing, the Board g ranted M r. Rokosik

an occu pational disease disability benefit pursuant to section

6-151.1 o f the Pens ion Code (40 IL CS 5/6-151. 1 (West 2000)), and upon the motion of one of the Board members, found tha t the disability was1-05-1501 & 1-05-1502 (consolidated)

10

permanent. The Board's " Decision and Findings of Facts," dated February 16, 2000, states that Mr. Rokosik

"is unab le to per

form his du

ties in the Chicag o Fire D epartme

nt by reason o f his development of a type

of cancer which may

be caused by

exposure to heat, radiation or a known carcinogen as defined by

the International Ag ency for Research on Cancer." (Emphasis adde d.) Mr. Rokosik died in July 2003; the death certificate states the c ause of death was kidney cancer. Thereafter , Rokosik submitted an application for widow's annuity

. Followin g a hea ring on R okosik' s applica

tion, the B oard con

cluded Ro kosik was

eligible to receive a non-duty

annuity pursuant to section 6-141.1 of the Pension Code but had not produce d suffic ient evid

ence to prove she

was entit led to re ceive a

duty annuity pursuant to section 6-140 of the Code. In support of this conclusion, the B oard found that Mr. Rokosik "died from kidney cancer which was not dire ctly related to his performance of an act or acts of d uty." In a ddition, th e Boar

d noted tha

t widows of

firemen who were

in rece ipt of occ

upationa l disease disability benefits (at the time of their de aths) are not entitled to widow's annuities under section 6-140 of the Code. Thereafter, in October 2003, Rokosik filed a complaint for a dministrative review of the Board's decision in the circuit court. The c ircuit court upheld the Board's decision in an Apr il 22, 2005, memorandum op inion and order, f ollowing the same reasoni ng which it applie d in reviewing Preston's complaint for administrative re view.

Rokosik an

d Preston f

iled sepa rate ap peals of the circ uit court orders de

nyi ng them d uty annuities. In addition to seeking re view of the denial of a duty annuity, Preston's a

ppeal sought review of the trial court's order dismissing he r request for a writ of mandamus . On July 29, 2005,1-05-1501 & 1-05-1502 (consolidated)

11

this cour t consolid ated the se two ap

peals pursuant to a

n agre ed motion f

iled by plaintiff s' counsel. ANA LYSIS Plaintiffs maintain on appeal that "the resolution of this case depends, not upon evidence heard by the

Board or even application of those fac ts to the law (a mixed question of fact and law to which a clearly

erroneous standard should apply ), but upon the purely legal question of the proper interpretation of the statutory provisions governing annuity benefits for the widows of firefighters found to be disabled by a job related causation." Specifically , plaintiffs contend that because their husbands were rec eiving occupational disability benefits at the time of their deaths for illnesses which permanently prevented them from returning to active se rvice, plaintiffs are, as a matter of law, entitled to a duty annuity under sec

tion 6-140. Accordingly , plaintiffs argue, the Board's decision deny

ing them duty dea

th benefits is subject to de novo review. Section 6- 140 of the

Code state s in relev ant part : "The a nnuity for the w idow of a fireman whose de ath results f rom the perfo rmance o

f an act or a cts of duty

shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after Dec ember 31, 1972. Unless the perfo rmance o f an act or a cts of duty

results directly in the dea

th of the fireman, or prevents him from subsequently resuming active service in the fire department, the annuity herein pr

ovided shall not be paid; nor shall such annuities1-05-1501 & 1-05-1502 (consolidated)

12 be paid unless the widow was the wife of the fireman a t the time of the act or acts of

duty which re sulted in h

is death. " (Empha sis added.) 40 ILCS 5/6-140 (West 2004). Section 6- 110 defines "act of duty " as: "A ny a ct im po se d o n a n a ct iv e f ir em an by t he or di na nc es of a c it y, or by the rules or

regulations of its fire department, or any act performed by

an active fireman while on duty , having for its direct purpose the saving of the life or property of another person." 40 IL CS 5/6-110 (West 2004). The plain language of sec tion 6-140 of the Code thus provides that in order to receive a duty annuity, a widow of a deceased firema n must establish that "the performance of an ac t or acts of duty" either directly resulted in the death of her husband or prevented him fr om resuming active service in the fire department. 40 I LCS 5/6-140 (West 2004). This court, in construing section 6-140, has clarified that in the latter situation a widow must establish the act or acts of duty in question permanently caused the fireman to be unable to return to active duty. Bertucci v. Retirement Board of the Firemen' s Annuity & B enefit Fund , 351 Ill. App. 3d 368, 373-74 (2004); Barry v. Retirement Board of the Firemen' s Annuity & B enefit Fund , 357 Ill. App. 3d 749, 768 (2005 ) (fol lowi ng Bertucci ) . Thus, contrary to plaintiffs' position, resolution of whether the Board properly

denied their requests for duty annuities does depend on evidence presented to the Board and whether the Boa rd properly a

pplied section 6-140 of the Code to that evidence. Accordingly , we apply the c learly er roneous standard to our review of plaintiffs' a ppeal. See Barry , 357 I ll. App. 3d

at 764-65 (whethe

r Boar d proper ly c onstrued

and appli ed secti on 6-140 in1-05-1501 & 1-05-1502 (consolidated)

13

concluding that widows were not entitled to duty death benefits presents a mixed question of law and fact subject to the clearly erroneous standard of review). With respect to Preston's claim for a duty annuity, the Boa

rd found that she "did not produce sufficient medical evidence to support a f inding that John T. Preston was prevented from subseque ntly resuming active s ervice

in the Chic ago Fi

re Depa rtment as a result o f his performance of an act or a cts of duty." We ha

ve reviewed the evidence pre sented to the Board at the rema nd heari ng on Pre ston's c laim for a duty annuity and find n

o basis for disturbi

ng this finding. We recognize that Mr. Preston suffere d a heart attack while on duty and that the Board thereafter granted him an oc cupational disability benefit. F urthermore, we are mindful that the Board' s written

decision granti ng him an occupa tional disa

bility benefit stated tha

t he was u

nable to perform his dutie s in the Chic ago fir e depar tment by reasons of hear t disease resulting solely from "h is servic e as a fi

reman." We emphas ize, howe ver, tha t the Boa rd's de cision did

not state that Mr. P reston's heart disease resul ted from "an act o r acts of duty." As noted above, section 6-110 of the Code defines "a ct of duty" a s "[a]ny act imposed on an activ e firema

n by the ordinances of

a city , or by

the rule s or reg

ulations o f its fire

department" as well a s "any

act per formed by a

n active fireman while on d

uty , having

for its dir

ect purp ose the saving of the life or property of another person." 40 I

LCS 5/6-110 (West 2004). The evidence before the Boar

d in the instant case reflects that Mr. Preston suffered a heart attack shortly after c limbing stairs at the firehouse. Preston, however, presente d no evidence to the Board indicating that an act underta ken by her husba

nd in an attempt to save a person or the property of a

person caused his heart disease or preve nted him from returning to active service. Furthermore, Preston presented no evidence to the Board indicating that the performanc e of an1-05-1501 & 1-05-1502 (consolidated)

14

act imposed upon her husband by city ordinance

or by a rule

or regulation of the fire depar tment caused him to contract the heart disease which pr evented him from returning to work and of which he ult imat ely died. In short , whil e Pres ton d id pre sent t he Boar d wit h its own fi ndin g, made at her husband's occupational disability hearing, that Mr. Preston was rendere d permanently disable d by reasons of heart disease resulting solely from his "service as a fireman," she did not present the Board with evidence indicating that a specific act or acts of duty rendered him disabled. With respe ct to Rokosi

k's cla im for a du

ty a nnuity , the Boa

rd found t hat Mr. Rok

osik "died of kidney

cancer which was not directly related to his performance of an ac t or acts of duty." We have

reviewed the evidence before the Board at the time it rendered its decision and find no basis for disturbing this finding. We recognize, as plaintiffs note in their br ief, that Board physician Dr. Motto testified at the he aring on Mr. Rokosik's application for duty disability that medical studies he had reviewed found an incre ased risk of kidney cancer in firefighters a

nd indicated "a connection between a n activity as a fire fighter and the development of kidney

cancer ." We note , howeve r, that Rok

osik pres ented no e

vidence to the Bo ard indic ating that a specific act performed by her husband in an attempt to save a person or the proper ty of a person caused his kidney c ancer or prevented him from returning to active service. Furthermore, Rokosik presented no evidence to the Board indicating that the performance of an act imposed upon Mr. Rokosik by

city ordinanc e or by

a rule or regula tion of the

fire de partmen t caused him to contract the kidney

cancer which prevented him from re turning to work and of which he ultimately died. Plaintiffs' primary

contention on appeal, as noted earlier, is that they are each entitled to a1-05-1501 & 1-05-1502 (consolidated)

15

duty annuity

under section 6-140 of the Code, as a matter of law, be cause their husbands were receiving occupational disability benefits, at the time of their deaths, for diseases which permane ntly prevent ed them f rom retur ning to a ctive dut y. I n essenc e, plaint

iffs ask u s to construe section 6 -140 to au

tomatica lly e ntitle widows of fir

emen to a duty annuity if their husbands were receiving an oc cupational disability benefit, at the time of the ir deaths, for a disease or condition which permanently prevented them from returning to active se rvice. "The primary

rule of statutory c onstruction is to ascertain and give effec t to the intent of the legislat ure." Midstate Siding & Window Co. v. Rogers , 204 Ill. 2d 314, 320 (2003). "To do so, we exam ine th e langu age of th e stat ute, t he mos t reli able i ndica tor of the le gislat ure's objectives in enacting th e law." Rogers , 204 Ill. 2d at 320. "We afford the language of the statute it s plain and ordinary meaning [ci tation] and constru e the statut e as a whole." Rogers , 204 I ll. 2d at 32 0. "Words and phra ses must no t be viewe d in isolati on but must b e conside red in light of oth er relevant pro visions o f the statut e." Rogers , 204 I ll. 2d at 32 0. "We al so presume that in enact ing the statu te the legisl ature did no t intend ab surdity, inconven ience, or inj ustice." Rogers , 204 Ill. 2d at 320. The plain language of sec tion 6-140 does not state that the widow of a fireman who was receiving occ

upationa l disability

benefit s at the time of his de ath for a permane nt disabili ty is automatically entitled to a duty annuity. Plaintiffs acknowledg e in their reply br ief that section 6- 140 does not specifically a ddress the widows of occupationally disabled firemen. They

argue, however , that a r

eview of case la w and othe

r relate d statutor

y pr ovisions su

pports the ir construction of section 6-140. To support their contention that the fact that their husbands were re ceiving occupational1-05-1501 & 1-05-1502 (consolidated)

16

disabilities at the time of their deaths entitled plaintiffs to a duty a nnuity, plaintiffs cite our rec ent holdings in Barry and Bertucci that the widow of a fireman who was rece iving duty disability at the time of

his death is entitle d to a duty

annuity if she ca n establish that her

husband' s disabilit

y permane ntly prevent ed him from returni

ng to active serv

ice. Plai ntiffs the n argue that " [a] duty disability benefit is the same as an oc cupational disease disability bene fit" and that, therefore, widows such as themselves, whose husbands were rec eiving occupational disability benefits at the time of their deaths and whose disabling conditions prevented them fr om returning to active service, are automatically entitled to receive a duty annuity. Plaintiff s' arg ument is ba sed upon tw

o separa te premis es. Firs t, plaintif fs' ar gument i s based on the premise that the widow of a fireman who wa s receiving a duty disability benefit at the time of

his death is entitle d to a duty

annuity if she ca n establish that her

husband' s disabilit

y permane ntly prevent ed him from returni

ng to active duty . We agr ee with th is premise

- indeed it is essenti ally

the rule construi ng sec tion 6-140

of the Cod

e, which we noted above a nd which t

his court recently

applied in Barry

and Bertucci . See Barry , 357 I ll. App. 3d at 768; Bertucci , 351 I ll. App. 3d at 373-74. The sec ond premi se under lyin g plaint iffs' a rgumen t is that the requirements for establishing a duty disability and an occupational disability a re the same and, thus, that the grant of an occupational disability be nefit necessarily

entitles a widow to a duty annuity when her husband's occupational disability permanently pr

events him from returning to active duty

. Specific ally

plaintiff s contend "Duty Disability

Benef its in Secti on 6-151 a

re ident ical in pu rpose to Occ upati onal D isabi lity Benef its i n Sect ion 6 -151. 1 of th e Code . The R etire ment B oard's attempt to make a distinction is meritless. The fact is, the two disability bene fits are for job1-05-1501 & 1-05-1502 (consolidated)

17

related injuries or illnesses. The disability sta ndard is the same for both benefits. [Citation.] The proof of dis ability is the sa me." We reject this second premise as a comparison of the two statutory provisions governing duty disability

and occupational disability re flects that the requirements for establishing eligibility for those bene fits are not the same. Section 6- 151, which provide s for duty disability benefit s, states i

n releva nt part: "An active fireman who is or becomes disable d on or after the effective date as the result of a spe cific injury, or of cumulative injuries, or of specific sickness incurred in or resulting from an act or acts o f duty , shall ha

ve the ri ght to re ceive du

ty d isability benefit during any

period of such disability for w hich he does not receive or have a right to receive sa lary, equa l to 75% of his salary at the time the disability is allowed." 40 I LCS 5/6-151 (West 2004). Section 6-151.1, which provides for occupational disability benefits, states in relevant part: "The Ge neral As sembly

finds and declar es that se rvice in the Fire Department requires that fire men, in times of stress and dange r, must pe rform un usual tas ks; that by

reason o f their occupa tion, fire men are subject to

exposure t

o grea t heat an d to extreme c old in cer

tain sea sons while

in performance

of their duties; tha

t by reason o f their e

mploy ment fire men are require d to work in the midst of and are subject to heavy smoke fumes and1-05-1501 & 1-05-1502 (consolidated)

18 carcinogenic, poisonous, toxic or chemical ga ses from fires; and that in the course of their rescue and para medic duties firemen are exposed to d

isabling infectio us diseas es, inclu

ding AI DS, hepat itis C, and stroke. The General Assembly further finds and declares that all th e afore

mentione d conditions exist and arise ou t of or in the course of such employ ment. Any active f

ireman who has completed 7 or more y ears of service and is unable to perform his duties in the Fire Depa rtment by reason of

heart disease, tuberculosis, any disease of the lungs or respira tory tract, A IDS, hepatitis C, or stroke resulting from his service as a fireman, shall be entitled to rece ive an occupational disease disability benef

it during any pe

riod of such disability for which he does not have a right to rece ive salary. Any active f

ireman who has completed 7 or more y ears of service and is unable to perform his duties in the fire depar tment by

reason o f a disab ling ca

ncer, w hich deve lops or ma

nifests it self during a period while the fireman is in the service of the department, shal l be entitl ed to rec eive an o ccupati onal dise ase disability benefit during a ny period of such disa

bility for which he does not ha

ve a rig ht to rec eive sal ary . In order to r eceive this occupational disease disability be nefit, the type of c ancer involved must be a type which may be caused by

exposure to heat, radiation1-05-1501 & 1-05-1502 (consolidated)

19 or a known carcinogen as de fined by the I nternational Agency

for Research on Cancer.

*** The occupational disease disability benefit shall be 65% of the fireman's salary

at the time of his removal from the Department payroll." 40 I

LCS 5/6-151.1 (West 2004). The plain language of sec tion 6-151.1 states the nature of firemen's occ upation exposes them to an inherently dangerous environment and provides that firemen who have c ompleted at least seven ye ars of service may potentially be entitled to an occ upational disability. Section 6-151.1 provides that some of what a fireman must establish in order to rece ive an occupational disability benefit is conting ent upon the nature of the dis ease, il lness, or condition

giving rise to the disability. Specifically , the second paragraph of se ction 6-151.1 states that a fireman who develops heart di sease, t

ubercul osis, any

disease of the lun

gs or re spirator

y tr act, AI DS, hepat itis C, or stroke may qualify

for an occupational disability benefit if he can establish that the subject disease or condition prevented him from being able to pe rform his duties and "result[ed] from his service as a fireman ." (Emphasis added.) 40 I LCS 5/6-151.1 (West 2004). On the other hand, the third paragraph of sec tion 6-151.1 states that a fireman who develops a certain ty pe of cancer may

potentially qualify

for an occupational disability benefit and does not require that he establish that the cancer resulted from his service a s a fireman. 40 ILCS 5/6-151.1 (West 2004). Regardless of the nature of the disea se, a fireman will not be eligible for an occ upational disability benefit unless he has complete d seven yea rs of service. This seven-y ear requirement reflects that occupational disability benefits were intended to compensate fireme n for diseases1-05-1501 & 1-05-1502 (consolidated)

20

likely to be contrac

ted as a result of repeated exposure to the inherently dangerous conditions which firemen confront in the course of their ser vice. Finally, the

benefit provided for occupational disability is 65% of a f iremen's salary . 40 IL CS 5/6-151.1 (West 2004). In contrast to an occupa

tional duty disability

benefit under section 6-151.1 of the Code, which requires a fireman with a disease other than cancer to establish that the disease resulted from his " service

as a fire man," a section 6 -151 duty

disability benefit require s a fireman to establish that he became disabled "as the result of a specific injury, or

of cumulative injuries, or of speci fic sickness incur red in or resulting from an act or ac ts of duty ." (Emphasis added.) 40 IL CS 5/6-151 (West 2004). Furthermore, whereas an occ upational duty disability

compensates firemen who are repeat edly exposed to i

nherent ly d anger ous envir onments a

nd conditi ons and is not awar ded to fir emen who

have co mpleted le ss than se ven y ears of service , a duty

disability seeks to compensate firemen for injuries or conditions sustained as a r esult of specific, identifiable act or acts of duty and is not conditioned upon completion of a fixed number of ye ars of servi ce. Finally , the bene fit provid ed for du ty d isability is not 65% o f a fire

man's sa lary but, rather , is 75% of

a firema n's sala ry . 40 I LCS 5/6 -151 (Wes t 2004). I n short, c ontrary

to plaintiff s' conte ntion, the require ments for establish ing enti tlement to

occupa tional an d duty disability benefit s are not

the same . Accor

dingly , for the foreg oing re asons, we

reject p laintiff

s' argume nt that sec

tion 6-140

of the Cod

e, the sta tutory provision

gover ning duty annuitie s, entitles widows of occupationally disa bled firemen to receive a duty annuity as a matter

of law when their husbands' disability permanently pr

evented them from resuming active servic e. We note that we do not hold today that a widow of a firefighter who was re ceiving an occupational disability benef it at the time of his death ( i.e. , 65% of her husband's salary ) may1-05-1501 & 1-05-1502 (consolidated)

21

ne ve r q ua li fy f

or a d ut y an nu it y ( i.e. , 75% of her husband's salary ), and we reject the dicta inclu ded i n the deci sions of the Boar d and the c ircu it cou rt sup porti ng su ch a r ule. We emphasize

that eligibility

for a dut y a nnuity require s review

of the ind

ividual fa cts of a g iven cas e in order to deter mine whet

her a wid ow's hus band's perfor mance of an act or acts of d uty permanently pr

evented him from resuming active service in the fire department. We can envision factual contexts in which the passage of time and/or advanc ements in medical science could ena ble the wi dow of a f

ireman w ho was re ceiving

an occu pational duty disability to estab lish , foll owing h er hus band's death , that a speci fic act or acts of dut y caused he r husb and's disease, sickness or condition. Such factual context is not presented by the instant case. Accord ingly, based u

pon the foregoin

g discus sion, we c onclude t hat the B oard' s denial o f duty annuities to plaintiffs was not clearly erroneous. In addition to challenging the Board's decision gra

nting her a non-duty

annuity rather

than a duty annuity

, Preston argues on appeal that the trial court e rred by dismissing c ount II of her complaint for administrative review. Count II of her complaint, as noted above, alleged tha t "[a] substantia l number o f widows w

hose husb ands died

while in r

eceipt o f duty

disability benefit s have a clear legal r

ight to Section 6-140 widow's annuity " and alleged that a substantial number of widows

"are n ow rece iving sub stantiall

y le ss becau se the B oard fa iled to af ford a du e proce ss hearing." Based on the

these allegations, Preston requested a writ of mandamus ordering the Board "to notify

all potential widows of their rights under the [Code] and to conduct a hearing conforming to fair notice an d due process ." A party see

king a writ of mandamus to compel a defen dant to pe rform an act or du ty which doe s not aff

ect the p ublic at la rge mus t establish, among other thin

gs, that it previou sly1-05-1501 & 1-05-1502 (consolidated)

22

demanded performance of that ac t or that the making of such a demand would have bee n unavailing. Murph y v. City of P ark Ri dge , 298 I ll. 66, 71- 72 (1921) ; People ex rel. Edelman v. Hunter , 350 Ill. App. 75, 78 (1953). Preston's complaint in the instant action does not seek to compel the Board to underta ke an action which affects t

he public at larg e and doe s not allege that she demande d the Boa

rd "to notify all potential widows of their rig hts under the [Pension Code] and to conduct a hearing conforming to fair notice and due proce ss." Furthermore, Preston's complaint does not alleg e any basis for concluding that a demand upon the Boa rd for such action would have been unavailing

. Accordingly , we affirm the dismissal of count II of Preston's complaint. CONCLUSIO

N Based on the for

egoing reasons , we aff

irm the B oard' s decisions deny ing plai ntiffs dut y annui ties, the tr ial co urt's d ecisi ons up hold ing th ose de cisio ns by the B oard, and th e tria l cour t's dismissal o f count I

I of Preston' s complain

t. Affirmed. O’BRIEN, P.J., and GAL LAGHER, J., concur.1-05-1501 & 1-05-1502 (consolidated)

23