No. 1-24-0049 Opinion filed November 15, 2024 Fifth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

DONALD B. MORELAND, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 22 CH 12585 THE RETIREMENT BOARD OF THE POLICEMEN’S ) ANNUITY AND BENEFIT FUND OF THE CITY OF ) CHICAGO, ) Honorable ) Sophia H. Hall, Defendant-Appellee. ) Judge Presiding.

JUSTICE NAVARRO delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Mitchell concurred in the judgment and opinion.

OPINION

¶1 The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago

(Board) denied the application of plaintiff, Donald B. Moreland, for duty disability benefits. On

administrative review, the circuit court affirmed the Board’s decision. Moreland now appeals that

judgment and contends that the Board’s decision to deny him disability benefits was in error.

Moreland argues that the Board’s decision placed him in an untenable catch-22 situation where he

is unable to work because his own employer, the Chicago Police Department, has determined he No. 1-24-0049

is disabled and will not assign him a position within the department yet he cannot obtain disability

benefits. For reasons that follow, we reverse the Board’s decision.

¶2 I. BACKGROUND

¶3 In 2013, Moreland became a Chicago police officer. On February 28, 2017, Moreland was

on duty and responding to a call of a person shot when his vehicle was involved in a traffic

accident, resulting in his vehicle hitting a parked vehicle and tree. As a result of the accident,

Moreland sustained various injuries, including to his lower back and left hip. Five years later,

Moreland applied for duty disability benefits due to the injuries he suffered to his back and left hip

because of the traffic accident. Moreland’s application proceeded to an October 2022 hearing.

¶4 A. The Hearing

¶5 At the hearing, the Board and Moreland entered numerous medical records into evidence.

Moreland also testified and discussed the February 28, 2017, vehicle accident that resulted in his

various back and left hip ailments. Immediately following the accident, Moreland experienced

back and left hip pain, but he hoped it would dissipate with time. Approximately six weeks after

the accident, Moreland went to the emergency room due to severe lower back pain. There, he was

diagnosed with sciatica on his right side and prescribed various medications. On April 10, 2017,

Moreland went on medical leave due to the back pain.

¶6 The following month, Moreland’s primary care physician, Dr. Robert Demke, evaluated

him and referred him to a chiropractor for physical therapy. Dr. Demke also recommended

Moreland receive a magnetic resonance imaging (MRI), but the imaging was not approved. In

early July 2017, following a course of physical therapy, Dr. Demke cleared Moreland for full,

unrestricted duty, and Moreland returned to such duty. The following month, Dr. Brian Clay, a

pain management specialist at the Illinois Bone and Joint Institute, evaluated Moreland due to his

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further complaints of low back and low extremity pain. Although Dr. Clay also recommended an

MRI, the imaging was again not approved. Dr. Clay advised Moreland to complete a home exercise

regimen. Moreland continued working full, unrestricted duty until early December 2020, when he

went on medical leave after contracting COVID-19. His COVID-19 medical leave lasted until

January 8, 2021.

¶7 The following day, Moreland continued to be on medical leave, but now due to recurring

issues with his back, specifically “really bad” back spasms. Later that month, Moreland returned

to Dr. Clay for the first time since 2017 complaining of lower back and lower extremity pain. Dr.

Clay recommended an MRI, more physical therapy, and remaining off-duty. In late January 2021,

Moreland underwent an MRI, which revealed multiple herniated discs and disc degeneration.

According to Dr. Clay, Moreland’s disc issues “appear[ed] to be clinically significant.” Based on

the MRI, Dr. Clay diagnosed Moreland with low back pain, lumbar radiculopathy, and lumbar disc

herniation. In light of these diagnoses, Dr. Clay referred Moreland to Dr. Steven Mardjetko, an

orthopedic surgeon at the Illinois Bone and Joint Institute. In February 2021, Moreland met with

Dr. Mardjetko, who advised Moreland to undergo an electromyography of his lower extremities

and to continue with physical therapy, which had been helpful to his symptoms.

¶8 Over the next two months, Moreland underwent additional imaging on his lower back,

including the electromyography, and left hip. The electromyography report indicated that

Moreland had evidence of mild chronic L5 radiculopathy on his right side. As for Moreland’s hip

issues, Dr. Ritesh Shah, a doctor at the Illinois Bone and Joint Institute, diagnosed him with left

hip impingement and a labral tear. Also, around this time, according to Moreland’s testimony, he

passed an annual prescribed firearm qualification certification with the Chicago Police

Department.

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¶9 In June 2021, Dr. Shane Nho, an orthopedic surgeon at Midwest Orthopaedics at Rush,

performed a hip arthroscopy and related procedures on Moreland’s left hip. During his recovery,

Dr. Mardjetko again evaluated Moreland’s low back issues, which were described in notes as

“significant pain.” Due to the chronic nature of Moreland’s back issues, Dr. Mardjetko

recommended that Moreland perform a functional capacity evaluation. Until that evaluation was

performed, Dr. Mardjetko considered Moreland “temporarily disabled.” According to Dr.

Mardjetko’s notes, the functional capacity evaluation would provide insight into the “kind of work

options” that would exist for Moreland. Moreland testified that he requested the functional

capacity evaluation, but his request was denied because he had already been deemed disabled by

Dr. Mardjetko. By October 2021, according to Dr. Nho’s medical notes, Moreland was progressing

well from the hip surgery, but he still recommended that Moreland continue physical therapy and

remain off-duty. During this month, Moreland exhausted his medical leave and began a personal

disability leave of absence that did not include pay.

¶ 10 In March 2022, Dr. Nho reevaluated Moreland and determined that he had reached

maximum medical improvement with respect to his left hip and approved his return to full,

unrestricted duty as it related to the left hip issues. However, Dr. Nho noted in his report that

Moreland continued to complain of low back pain and was seeing specialists for the issue. Two

months later, the Board’s appointed doctor, Dr. Jay Levin, performed an independent medical

examination of Moreland, specific to his lumbar spine and left hip issues, which included

evaluating Moreland in person and reviewing his medical records. In his report to the Board, Dr.

Levin concluded that Moreland could “work in a full unrestricted capacity regarding his lumbar

spine and left hip as it relates to the occurrence of February 28, 2017.” Specifically, Dr. Levin

found that Moreland could (1) safely carry, handle and use his firearm; (2) maintain an

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independent and stable gait without the assistance of external ambulatory supporting devices;

(3) safely drive a motor vehicle; and (4) safely effectuate the arrest of an arrestee who was actively

resisting arrest.

¶ 11 Also in May 2022, after Moreland had applied for temporary disability benefits, the Board

deferred the request in favor of a full hearing. In light of the deferral, Moreland’s attorney told him

to request reinstatement with the Chicago Police Department. Thereafter, Moreland applied for

reinstatement as a police officer. The following month, due to his back issues, Dr. Mardjetko

opined that: “Moreland is permanently disabled from activities of active police work and also

unable to safely carry and discharge a weapon.” Moreland testified that all his doctors

recommended against back surgery because it could potentially do more harm than good.

¶ 12 In July 2022, as part of Moreland’s reinstatement application, he underwent a physical

examination with Dr. Kristin Houseknecht, a physician with Concentra Medical Center. She

concluded that Moreland was not cleared for full, unrestricted duty because his treating physician,

Dr. Mardjetko, had opined that he was “permanently disabled.” Later that month, Sergeant Stanley

Williams, the commanding officer of the Chicago Police Department’s medical services section,

wrote to Robert Landowski, the director of the Chicago Police Department’s human resources

division, that the physical examination “disclosed that [Moreland] is NOT QUALIFIED to return

to duty without restrictions. Based on restrictions per treating physician, [Moreland] is not a

candidate for Limited Duty.” According to Moreland’s testimony, the restrictions placed on him

by his treating doctors did not qualify him for limited duty, and the Chicago Police Department

had not offered him a position in any capacity to return to work. Moreland testified that, had the

Chicago Police Department offered him “any” position to return, he would have accepted it.

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¶ 13 During the hearing, Moreland testified that he had an 11-month-old daughter and still

suffered from debilitating back spasms, which required him to lay on the ground to alleviate.

Moreland explained that, due to those spasms, there was “no chance that [he] could carry a gun.”

Moreland further testified that he was doing everything he could to return to work by following a

treatment plan from the Illinois Bone and Joint Institute. The only other testimony at the hearing

came from Dr. Peter Orris, who explained some of the procedures that Moreland underwent. Dr.

Orris did not give an opinion about whether Moreland was disabled. Following the testimony, the

Board held a closed meeting to deliberate. Subsequently, the Board voted 6 to 0 to deny Moreland

duty disability benefits and ordinary disability benefits.

¶ 14 B. The Written Decision and Order

¶ 15 In the Board’s written decision and order, it detailed the evidence and testimony from the

hearing, including Moreland’s lengthy medical history following his February 28, 2017, vehicle

accident. In particular, the Board observed that, following the independent medical examination

of Moreland, Dr. Levin concluded that Moreland could safely carry, handle, and use his firearm

as well as other official functions. In turn, the Board noted Dr. Levin’s opinion that Moreland

could work in a full, unrestricted capacity. The Board further observed that Dr. Mardjetko,

Moreland’s treating physician, concluded that Moreland could not safely carry, handle, and use

his firearm and, ultimately, opined that Moreland was permanently disabled from active police

duties. However, the Board asserted that nothing in the record demonstrated Dr. Mardjetko was

aware that Moreland passed an annual prescribed firearm qualification certification with the

Chicago Police Department in 2021 when Dr. Mardjetko rendered his opinion regarding

Moreland’s permanent disability.

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¶ 16 Although the Board highlighted that Dr. Mardjetko and Dr. Levin reached opposite

conclusions on Moreland’s ability related to his firearm and opposite opinions on his ability to

work in a full, unrestricted capacity, the Board placed a greater emphasis on the opinions and

conclusions of Dr. Levin, in part, due to Dr. Mardjetko’s apparent unawareness of Moreland’s

firearm certification. Additionally, the Board asserted that it “ha[d] the exclusive jurisdiction over

[Moreland’s] claim,” and based upon the evidence, it found that Moreland was “not disabled from

police service because he is capable of performing police duties in the Chicago Police

Department.” The Board added that “Any reference to the determination as to the City’s

assignment decisions in the Chicago Police Department does not overcome [the Board’s] exclusive

jurisdiction over this matter.” Consequently, the Board denied Moreland duty disability and

ordinary disability benefits.

¶ 17 C. Circuit Court Proceedings

¶ 18 In December 2022, Moreland filed a two-count complaint in the circuit court. Count I,

which he later voluntarily dismissed, was for a writ of mandamus compelling the Board to award

him disability benefits immediately. Count II was for administrative review of the Board’s decision

pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)). The Board

appeared and filed the administrative record in the case. Following briefing and oral argument, the

circuit court found that the Board’s decision to deny Moreland’s claim for disability benefits was

not against the manifest weight of the evidence and affirmed the Board’s decision.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 Moreland contends that the Board erred in denying him duty disability and ordinary

disability benefits. He argues that the Board’s decision placed him in an untenable catch-22

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situation where he is unable to work because his own employer, the Chicago Police Department,

has determined he is disabled and will not assign him a position within the department yet he

cannot obtain disability benefits.

¶ 22 Moreland sought duty disability benefits pursuant to article 5 of the Illinois Pension Code

(Code) (40 ILCS 5/5-101 et seq. (West 2022)). Article 5 of the Code governs the policemen’s

annuity and benefit fund for cities with a population over 500,000 people, such as Chicago. The

Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)) governs judicial review of

final administrative decisions of the Board. 40 ILCS 5/5-228 (West 2022). In administrative

review, we review the decision of the administrative body, here the Board, rather than that of the

circuit court. Medponics Illinois, LLC v. Department of Agriculture,

.

¶ 23 The standard of review determines how much deference we afford the Board’s

determination. Id. ¶ 29. The standard of review depends on whether the issue on appeal is a

question of law, a question of fact, or a mixed question of law and fact. Id. Whether a claimant is

disabled within the meaning of the Code (see 40 ILCS 5/5-115 (West 2022)) is a question of fact.

Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago,

(2009). The Board’s “factual findings are prima facie true and correct and

will not be disturbed unless they are against the manifest weight of the evidence.” Chaudhary v.

Department of Human Services,

. Factual findings will be deemed against

the manifest weight when the opposite conclusion is clearly evident.

¶ 24 In an administrative hearing, the claimant, here Moreland, has the burden of proof.

Kouzoukas,

. Under section 5-154(a) of the Code (40 ILCS 5/5-154(a) (West

2022)): “An active policeman who becomes disabled *** as the result of injury incurred *** in

the performance of an act of duty, has a right to receive duty disability benefit” generally at the

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rate of 75% of his or her salary. For ordinary disability benefits, “[a] policeman less than age 63

who becomes disabled *** as the result of any cause other than injury incurred in the performance

of an act of duty, shall receive ordinary disability benefit during any period or periods of disability

exceeding 30 days, for which he does not have a right to receive any part of his salary” at a rate of

50% of his salary.

§ 5-155. The Code defines “[d]isability” as “[a] condition of physical or

mental incapacity to perform any assigned duty or duties in the police service.” Id. § 5-115. The

only issue in this case is whether the Board properly found that Moreland was not disabled.

¶ 25 It is undisputed that Dr. Levin, the Board’s appointed doctor, performed an independent

medical examination of Moreland and determined that Moreland could work full, unrestricted

duty. Relying on Dr. Levin’s determination, the Board argues that Moreland was ineligible to

receive disability benefits due to the requirement of section 5-156 of the Code (id. § 5-156), which

provides: “Proof of duty, occupational disease, or ordinary disability shall be furnished to the board

by at least one licensed and practicing physician appointed by the board.” No Illinois decision has

interpreted this portion of section 5-156. However, section 6-153 of the Code (40 ILCS 5/6-153

(West 2022)), which is a part of article 6 of the Code and governs the firemen’s annuity and benefit

fund for cities with a population over 500,000 people, has the same requirement and uses the same

language: “Proof of duty, occupational disease, or ordinary disability shall be furnished to the

Board by at least one licensed and practicing physician appointed by the Board.” Additionally,

both provisions were created through the same legislation. See

-29 (§ 5-156);

(§ 6-153).

¶ 26 In Nowak v. Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago,

(2000), the appellate court interpreted the relevant portion of section 6-153

of the Code and noted the case presented an issue of first impression. The court highlighted that

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the word “ ‘shall’ ” generally expressed the legislature’s intent for a mandatory reading.

.

Given the legislature’s use of the word “shall” in section 6-153, the court concluded the plain

language of section 6-153 required “that, before granting a disability benefit, the [Retirement

Board of the Firemen’s Annuity and Benefit Fund of Chicago] must receive proof of the claimant’s

disability from at least one physician appointed by [it].”

. Because the doctor

appointed by the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago “was

unable to conclude whether [the claimant-paramedic] was disabled,” the claimant “failed to meet

the requirement of section 6-153.”

. Therefore, the appellate court affirmed the

Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago’s decision to deny the

claimant duty disability benefits.

.

¶ 27 Given the identical language of sections 5-156 and 6-153 of the Code, and their creation

through the same legislation (see

-29 (§ 5-156);

(§ 6-153)),

section 5-156 should be interpreted in the same manner as section 6-153. See Robbins v. Board of

Trustees of the Carbondale Police Pension Fund of Carbondale,

(1997) (“It

is fundamental that where a word or phrase is used in different sections of the same legislative act,

a court presumes that the word or phrase is used with the same meaning throughout the act, unless

a contrary legislative intent is clearly expressed.”). To this end, one federal court has found that,

under section 5-156, “the [C]ode requires ‘duty, occupational disease, or ordinary disability’ to be

proven by ‘at least one licensed and practicing physician appointed by the board.’ ” Taylor v.

Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago, No. 22-CV-6104,

, at *2 (N.D. Ill. Sept. 25, 2023) (quoting 40 ILCS 5/5-156 (West 2022)).

¶ 28 If we were to interpret section 5-156 in the same manner that Nowak interpreted section 6-

153, we would have to conclude that the Board properly denied Moreland disability benefits. As

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previously discussed, Dr. Levin was the only doctor appointed by the Board in this case, and he

concluded that Moreland could “work in a full unrestricted capacity” despite his lumbar spine and

hip issues. In other words, Dr. Levin found that Moreland’s physical condition did not prevent him

from performing any assigned duties in the police service, and thus, he was not disabled within the

meaning of the Code. See 40 ILCS 5/5-115 (West 2022). However, given the specific facts of the

present case, construing section 5-156 in the same manner that Nowak interpreted section 6-153

would ignore our supreme court’s decision in Kouzoukas,

, and a recent decision by

this court in Ohlicher v. Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago,

.

¶ 29 In Kouzoukas,

, a former Chicago police officer injured her back

while on duty, and over the next year, she worked limited duty occasionally, but otherwise was on

medical leave. Her primary treating physician concluded that she had to limit her walking, sitting,

and standing to no more than 30 to 45 minutes at any given time and she could not wear her

gunbelt.

. After applying for duty disability benefits, the Board held a hearing, where the

officer’s primary treating physician testified that she could not perform desk duty due to her back

issues.

. The Board’s appointed doctor testified that he did not provide an opinion in his

report to the Board as to whether the officer could return to work because the officer’s disability

was not “clear cut.”

. But the Board’s appointed doctor testified that it would not be

“ ‘prudent’ ” to have the officer return to full, unrestricted duty, though she could return to work

with specific restrictions.

The commanding officer of the Chicago Police Department’s medical

services section testified that there were various positions within the department that were

considered “restricted duty positions,” which could be assigned to officers needing

accommodations.

. The commanding officer suggested a position that could

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accommodate the officer’s needs, but he acknowledged such a position had never been offered to

her.

. Ultimately, the Board denied the officer duty disability benefits.

.

¶ 30 On appeal to our supreme court, it initially concluded that many of the Board’s factual

findings—namely that the officer only experienced subjective pain and she could return to full,

unrestricted work—were against the manifest weight of the evidence.

. In addition,

the court determined that the officer presented evidence that she could not perform “ ‘any assigned

duty.’ ”

. Although the Board presented evidence there was a position within the Chicago

Police Department that “might” accommodate the officer’s restrictions, the Board did not present

any evidence that such a position was offered to her.

. Given this, the court found “the

manifest weight of the evidence show[ed] that [the officer] carried her burden of proving that she

was disabled, that is, that she had a physical condition which made her incapable of performing

any assigned duty and that no position within her limitations was offered to her.”

.

¶ 31 Still, the Board argued that the officer’s application for disability benefits could not depend

on the Chicago Police Department having an available position consistent with her restrictions

because, to hold as such, would encroach on the Board’s exclusive, original jurisdiction.

at 470-

71. In rejecting this argument, the court stated:

“The Board has the duty under the Code to determine whether a claimant is

disabled. In the case at bar, [the officer] presented evidence which established that

she had chronic back pain which severely limited her ability to sit, stand, walk,

drive, and wear a gunbelt. Moreover, because of these limitations, [the officer’s]

doctors did not provide her with a release to return to work. As a result, the Chicago

police department would not reassign [her] to any position. Under these

circumstances, [the officer] met her burden of proving that she was disabled. To

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hold otherwise would be to place [her] in an untenable ‘catch 22’ situation—unable

to work because the Chicago police department will not assign her to a position in

the police service which she can perform, yet unable to obtain disability benefits.”

(Emphasis in original.)

.

Consequently, our supreme court held that the Board wrongly determined the officer had not met

her burden to prove she was disabled.

.

¶ 32 In Ohlicher,

, based on an officer’s elbow injury, his

treating physician determined that he could return to work with sedentary, light duty but barred

him from using his firearm. After the officer applied for duty disability benefits, the Board’s

appointed doctor concluded that the officer could return to limited duty and he had the ability to

use a firearm.

. However, the Board’s appointed doctor would not conclude that the

officer could safely perform an arrest and did not conclude that he could return to full, unrestricted

duty.

. The officer applied for reinstatement twice, and both times, the Chicago Police

Department’s medical services section denied his application and determined he was not qualified

to return without restrictions and not a candidate for limited duty.

. Still, the Board

denied him duty disability benefits, finding him capable of performing police duties.

.

¶ 33 On appeal, this court observed that, although the officer’s treating physician and the

Board’s appointed doctor agreed the officer could perform limited duty work, the officer had

“presented uncontroverted evidence that he was never offered a limited duty position within the

[Chicago Police] Department.”

. As a result of the officer’s restrictions and the

department’s failure to offer him a limited duty position, this court found the officer “was in a

catch-22 situation” like the officer in Kouzoukas.

. The court stated:

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“[The officer] was denied reinstatement as the [Chicago Police] Department

determined that his injury rendered him incapable of performing the duties of an

active police officer. The Board determined he was not disabled and was ineligible

to receive duty disability benefits because it found that his injury did not prevent

him from ‘performing sworn, limited police duties.’ ”

This court concluded “where the medical evidence established that his line-of-duty injury

prevented him from performing duties of an active police officer and no evidence was presented

that he was offered a limited duty position within the Department,” the Board’s determination that

the officer was not disabled within the meaning of the Code was against the manifest weight of

the evidence.

. Notably, following the decision, the Board filed a petition for leave to appeal

to our supreme court, which was denied. See Ohlicher v. Retirement Board of the Policemen’s

Annuity & Benefit Fund of Chicago, No. 130914 (Ill. Sept. 25, 2024).

¶ 34 Kouzoukas and Ohlicher demonstrate how section 5-115 of the Code (40 ILCS 5/5-115

(West 2022)), which defines “[d]isability,” and section 5-156 of the Code (id. § 5-156), which

requires a Board-appointed doctor providing proof of a claimant’s disability to the Board, interact.

First, Kouzoukas and Ohlicher help define the word “[d]isability” in the Code. See id. § 5-115 (a

disability is “[a] condition of physical *** incapacity to perform any assigned duty or duties in the

police service”). Although the word “any” is not defined by the Code, Kouzoukas and Ohlicher

show that “any” means, in essence, “some.” See Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/any (last visited Nov. 4, 2024)

[https://perma.cc/44ZG-FQB6] (defining “any” as “a or some without reference to quantity or

extent”). In other words, an officer is disabled if they cannot perform unrestricted work and limited

duty work.

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¶ 35 For example, in both Kouzoukas and Ohlicher, the Board’s appointed doctors determined

that Chicago police officers could return to work with restrictions, i.e., perform limited duty work.

Kouzoukas,

; Ohlicher,

. Ordinarily, those

conclusions would mean that the officers were not disabled, because, despite their physical

condition, they could perform some duty or duties, if those duty or duties were assigned to the

officers. But, the evidence in both cases showed that the Chicago Police Department did not offer

the officers positions accommodating their restrictions. Kouzoukas,

; Ohlicher,

. Thus, despite the Board’s appointed doctors determining that

the officers could perform some duties under the appropriate circumstances, the officers were

nevertheless disabled within the meaning of the Code because no positions accommodating their

limitations had been offered to them. See Terrano v. Retirement Board of the Policemen’s Annuity

& Benefit Fund of Chicago,

(2000) (“[I]t is a firm offer of a limited duty

position that could be performed by an individual with the applicant’s physical limitations that

renders the applicant not disabled within the meaning of the Code despite his inability to perform

the duties of an active police officer.”).

¶ 36 As our supreme court stated in Kouzoukas,

, to find an officer disabled

under such circumstances would place the officer “in an untenable ‘catch 22’ situation—unable to

work because the Chicago police department will not assign her to a position in the police service

which she can perform, yet unable to obtain disability benefits.” See also Ohlicher,

(discussing the “catch-22 situation”). Placing an officer in such an untenable

and unjust situation therefore precludes section 5-156 of the Code (40 ILCS 5/5-156 (West

2022))—requiring a Board-appointed doctor providing proof of a claimant’s disability to the

Board—from being applied as literally written. See Cassidy v. China Vitamins, LLC, 2018 IL

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122873, ¶ 17 (asserting that the “literal reading [of a statute] must fail if it yields absurd,

inconvenient, or unjust results”).

¶ 37 In the present case, the Board’s denial of Moreland’s application for disability benefits

placed him in the same catch-22 situation as the officers in Kouzoukas and Ohlicher, albeit under

different circumstances. No one disputes that Dr. Levin, the Board’s appointed doctor, concluded

that Moreland could return to full, unrestricted duty, which ordinarily would mean Moreland is

not disabled within the meaning of the Code. See 40 ILCS 5/5-115 (West 2022). Nevertheless,

upon Moreland’s application for reinstatement with the Chicago Police Department, the

department declined to offer him any position—either a full, unrestricted duty position or a limited

duty position. As such, Moreland’s physical condition rendered him unable to perform any

assigned duty or duties in the police service. See

In turn, just like the officers in Kouzoukas and

Ohlicher, the Chicago Police Department’s denial of reinstatement renders Moreland unable to

work for the department yet unable to obtain disability benefits to compensate him for his inability

to work for the department. As a result, despite Dr. Levin’s conclusion, the Board’s finding that

Moreland was not disabled within the meaning of the Code was against the manifest weight of the

evidence, as the opposite conclusion is clearly evident based on the evidence. Given the evidence

presented by Moreland, he met his burden to prove he is disabled within the meaning of the Code.

Consequently, the Board’s decision to deny Moreland duty disability benefits based on him being

not disabled was erroneous.

¶ 38 We recognize the interpretation of section 6-153 in Nowak and the fundamental statutory

interpretation cannon “that where a word or phrase is used in different sections of the same

legislative act, a court presumes that the word or phrase is used with the same meaning throughout

the act, unless a contrary legislative intent is clearly expressed.” Robbins,

.

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However, in Nowak, the issue of reinstatement to a position that could accommodate the claimant’s

physical condition never arose. The issue of reinstatement did arise in dicta in Reed v. Retirement

Board of the Fireman’s Annuity & Benefit Fund of Chicago,

(2007),

where a Chicago firefighter argued it was unfair for the Retirement Board of Fireman’s Annuity

and Benefit Fund of Chicago to deny him duty disability benefits when the Chicago Fire

Department found him unfit for duty and denied him reinstatement. Initially, the appellate court

found that the firefighter had forfeited review of this issue.

. Nevertheless, relying on

Nowak, the court concluded that, had the issue been preserved, the firefighter would not have been

entitled to duty disability benefits because no Board-appointed physician had furnished proof that

he was disabled.

However, the appellate court decided Reed in 2007, two years before our

supreme court’s decision in Kouzoukas, and the reinstatement issue was dicta because the claimant

had forfeited administrative review of the issue. We cannot say how the Reed court would have

discussed section 6-153 and the claimant’s denial of reinstatement with the benefit of Kouzoukas

and its repudiation of the catch-22 situation, which, as discussed, precludes section 5-156 of the

Code (40 ILCS 5/5-156 (West 2022)) from being applied as literally written. See Cassidy,

. But, to the extent the decisions are in conflict, Kouzoukas obviously takes

precedent.

¶ 39 Still, the Board argues making its disability benefits decisions contingent on the Chicago

Police Department’s work assignments encroaches on the exclusive, original jurisdiction of the

Board over disability benefits matters. See 40 ILCS 5/5-189 (West 2022) (providing that “[t]he

Board shall have exclusive original jurisdiction in all matters relating to or affecting the fund,

including, in addition to all other matters, all claims for annuities, pensions, benefits or refunds”).

But this exact argument was rejected in Kouzoukas,

, and Ohlicher, 2024 IL

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App (1st) 231699-U, ¶ 28. During oral argument, the Board also suggested that officers unhappy

with their placement in catch-22 situations could simply sue the Chicago Police Department to be

reinstated. However, in Buttitta v. City of Chicago,

(7th Cir. 1993), the Seventh

Circuit Court of Appeals found that, where the Chicago Police Department provides an inactive

officer a sufficient opportunity to demonstrate his or her fitness for active duty through a physical

examination and the Chicago Police Department does not find the officer fit for duty, the inactive

officer has no cause of action to be reinstated.

¶ 40 Given our conclusion that Moreland met his burden to prove that he is disabled within the

meaning of the Code, the order of the circuit court and the decision of the Board must be reversed.

See Ohlicher,

. Under the Code, to be entitled to duty disability

benefits, a claimant must prove (1) he or she was an active police officer, (2) who became disabled,

(3) as a result of an injury incurred in the performance of an act of duty. 40 ILCS 5/5-154(a) (West

2022). Because the Board only premised its denial of Moreland’s application for duty disability

benefits based on the disability element, which we have just concluded was against the manifest

weight of the evidence, Moreland is entitled to duty disability benefits. See Ohlicher,

.

¶ 41 Additionally, as Moreland requests on appeal, he is entitled to court costs and litigation

expenses, including reasonable attorney fees, for prevailing in this administrative review action.

See 40 ILCS 5/5-228 (West 2022). To this end, we remand the matter to the circuit court to conduct

a hearing to determine the court costs and litigation expenses, including reasonable attorney fees,

to which Moreland is entitled pursuant to section 5-228 of the Code (id.). See Siwinski v.

Retirement Board of the Firemen’s Annuity & Benefit Fund of Chicago,

. We note that Moreland has also requested that he be awarded the cost of any medical

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insurance he incurred as a result of the Board denying him duty disability benefits. The court can

consider this request in conjunction with its hearing to determine the costs and expenses he is

entitled to statutorily. Further, upon remand to the circuit court, it shall order the Board to grant

Moreland’s application for duty disability benefits. See

(upon remand to the circuit court to

conduct a hearing on court costs and litigation expenses owed to a claimant-fireman, directing the

court to also “enter an order remanding the matter to the [Retirement Board of the Firemen’s

Annuity and Benefit Fund of the City of Chicago] for an award of duty disability benefits”).

¶ 42 III. CONCLUSION

¶ 43 For the foregoing reasons, we reverse the decision of the Board, reverse the judgment of

the circuit court of Cook County, and remand the matter to the circuit court with directions.

¶ 44 Board decision reversed and circuit court judgment reversed; cause remanded.

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Moreland v. Retirement Board of the Policemen’s Annuity & Benefit Fund of Chicago,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 22-CH- 12585; the Hon. Sophia H. Hall, Judge, presiding.

Attorneys Ralph J. Licari, of Ralph J. Licari & Associates, Ltd., of for Northfield, for appellant. Appellant:

Attorneys Sarah A. Boeckman and Vincent D. Pinelli, of Burke Burns & for Pinelli, Ltd., of Chicago, for appellee. Appellee:

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