JUSTICE OR INJUSTICE TWO CASES YOU DECIDE-- Part 2

Yesterday I wrote about my disagreement with an Illinois Supreme Court decision that allowed a convicted murderer to keep the wages he earned in prison, rather than require him to repay the state (and the taxpayers) for his own sustenance. Today I write about my disagreement with an Illinois Appellate Court decision against a policeman.  An important caveat:  I am NOT an attorney!  My analyses of these cases are based on common sense, not the law!  (Which is how cases should be decided anyway, in my own humble opinion…)

Case # 2

BACKGROUND OF HOW EARL FILSKOV WAS INJURED:

The information below is from the filing of the case:

On October 5, 2007, Officer Filskov was on duty and in uniform as a member of the City of Northlake police force. Officer Filskov was assigned to an unmarked police car along with two other officers. He testified that all three officers were at the Northlake Police Station either finishing up an arrest or a report. All three officers were assigned to the Neighborhood Enforcement Team (NET), which is a gang suppression unit. Officer Filskov testified that NET officers "are constantly on the street as much as possible looking for any active gang activity, any narcotic related activity" in addition to "all the other normal work that a uniform patrol officer would do." At approximately 10:30 p.m., Officer Filskov and the other two officers left the police station and walked to the squad car in the police station's parking lot to resume patrol.

They had yet to resume their patrol and were not acting in response to a call for service. As he was standing outside the open door of the squad car, the officer driving the car inadvertently put the car in drive and drove over Officer Filskov's foot. He described the incident, testifying that as he opened the backseat car door to get into the backseat, he noticed some items on the seat. While standing on the parking lot pavement he bent over to move the items when the car unexpectedly moved forward and a rear tire injured his foot.

The Pension Board found that Officer Filskov "is physically disabled and that his disability renders necessary his suspension or retirement from police service." The Board found "the performance of an act of duty" did not cause or contribute to Officer Filskov's disability under the Pension Code.

The Pension Board and all the courts agree that Filskov was injured and that the injury caused a permanent disability that forced him to retire.  The problem is in the interpretation of how the term “act of duty” is defined.  The Illinois Pension code defines it as “any act of police inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman.”

Earl Filskov, a Northlake, Illinois police officer, while on duty and in uniform, was injured in 2007.  The Pension Board decided that "the performance of an act of duty" did not cause or contribute to Officer Filskov's disability under the Pension Code, so he would not be able to receive an “on-duty” disability pension.  Instead, he received a “not on duty” disability pension benefit.   There is a 25% difference in the amount of the benefits.

(a) “An active policeman who becomes disabled on or after the effective date as the result of injury incurred on or after such date in the performance of an act of duty, has a right to receive duty disability benefit during any period of such disability for which he does not have a right to receive salary, equal to 75% of his salary, as salary is defined in this Article, at the time the disability is allowed... (40 ILCS 5/5-154(a))”

(b) “Ordinary disability benefit shall be 50% of the policeman's salary, as salary is defined in this Article, at the time disability occurs. (40 ILCS 5/5-155)” 

Officer Filskov disagreed with the Board’s decision and filed a lawsuit with the Cook County Circuit Court. Judge Peter Flynn sided with Filskov, reversed the Pension Board’s decision and ruled in his favor.  Unsurprisingly, the Pension Board disagreed with Flynn’s ruling and appealed. This past April, three of the four Appellate Judges reversed the lower court’s decision and forced Filskov to take the lower pension.  Filskov filed a petition with the appellate court and asked them to rehear the case.  The appellate court denied the petition last week.  Justice Virginia Joy Cunningham was the only dissenting judge.

I disagree with the Appellate Court’s decision and agree with the dissenting opinion of Cunningham.  She wrote, “Filskov and his partners were required to drive to specific locations in the city in accordance with gang suppression activities. In my view, that puts it squarely within the categories of injuries for his line of duty disabilities are payable.  It cannot be rationally argued that Filskov was getting into that particular police vehicle in that particular location, at that particular time, for personal reasons unrelated to his specific work as a team member (of gang suppression unit). Filskov was not taking a casual car ride with friends.”

When I look at the code for the definition of “on-duty,” Filskov’s injury clearly fits.  I, as a citizen in my “ordinary walks of life,” would not be getting into a car and driving around looking for gang activity. Filskov’s desire to receive an “on duty” pension was not the result of a scheme.  He was not dreaming up a way to nail bucket number six in Bozo’s Grand Prize game.  He was injured in uniform while performing risky duties. The Pension Board and the Courts should have let the ball stay in the bucket.