The Illinois Supreme Court has recently rendered its opinion in two consolidated appeals challenging the denial of paid health insurance premiums to two catastrophically injured employees under the Public Safety Employee Benefits Act (“PSEBA”); (820 ILCS 320/1). Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012. In this 4-3 decision, the Illinois Supreme Court reversed both appellate court decisions and in so doing, has articulated a new standard for the analysis of PSEBA applications that lower courts and employers must follow in pending and future litigation.
Factual and Procedural Background
Two employees of the Orland Fire Protection District suffered separate disabling injuries during training evolutions. In September 2002, Lt. Brian Lemmenes injured his right knee while participating in a “rapid intervention team” training exercise in an abandoned factory. Lt. Lemmenes testified that he twisted and turned his knee while trying to free a dummy from an obstacle during the training exercise. This injury resulted in a career-ending injury and a subsequent line-of-duty disability pension. In July 2005, Firefighter Michael Gaffney was injured during a live-fire training exercise when his fire hose became entangled in an unseen obstacle, a loveseat. When Gaffney moved the loveseat to free the hose, he suffered a career-ending injury to his left shoulder. Both employees suffered “catastrophic injuries” as defined by the Illinois Supreme Court in the landmark PSEBA case Krohe v. City of Bloomington, 204 Ill.2d 392 (2003).
Both employees applied to the District for Section 10 PSEBA benefits, and the District rejected the claims of both employees after providing each employee with an opportunity to be heard. The primary basis for the District’s denial was that the injuries did not occur in “response to what is reasonably believed to be an emergency.” The denials were appealed separately to the Cook County Circuit Court. The circuit court was split; it reversed the District’s denial of PSEBA benefits to Lemmenes while it upheld the District’s denial of PSEBA benefits to Gaffney.
Both matters next progressed to the Illinois Appellate Court for the First District, where both circuit court decisions were affirmed on appeal. This difference of opinion among justices of the same appellate court led the District to petition for leave to appeal to the Illinois Supreme Court. The highest court in our state agreed to hear the appeal in May 2010, allowed filing of several amicus briefs thereafter, and heard oral argument on November 17, 2010. The Illinois Supreme Court released the opinion in these consolidated cases on February 17, 2012.
Analysis of Gaffney Majority Opinion
The majority opinion began with a discussion about the proper means by which a denial of PSEBA benefits should be judicially reviewed. In the Gaffney case, the Plaintiff originally filed a declaratory judgment action and a second count in administrative review. After a thorough review of the language in the Fire Protection District Act and the Administrative Review Law, the Illinois Supreme Court concluded that a declaratory judgment action is the only proper means of appealing a fire protection district’s denial of PSEBA benefits. (Gaffney, ¶47). It is clear that a fire protection district cannot simply craft an administrative process for the review of PSEBA benefits that will result in the matter being subject to the Administrative Review Law.
The remainder of the majority opinion focused squarely on the propriety of providing the PSEBA health insurance benefits. This focus centered on the definition of the word “emergency.” Previous court decisions have defined an “emergency” in Section 10(b) of PSEBA as a situation that “is urgent and calls for immediate action.” DeRose v. City of Highland Park, 386 Ill.App.3d 658 (2nd 2008). This was the same definition utilized by the Appellate Court in both the Gaffney and Lemmenes decisions.
The Illinois Supreme Court decided to replace this definition with one set forth in the Webster’s Third New International Dictionary, which defines an “emergency” as “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” The Illinois Supreme Court also adopted that part of the DeRose decision that requires an urgent and immediate response. (Gaffney, ¶61). In sum, the new definition of “emergency” in Section 10(b) of PSEBA is “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.” (Gaffney, ¶64). This is the test by which all PSEBA applications must now be examined.
Next, the court applied its new standard to the facts in both cases before it. In the Gaffney training evolution, the entanglement of the fire hose in the unseen loveseat met the court’s definition of an unforeseen circumstance that arose after the training began. The tangled fire hose required Firefighter Gaffney to make an urgent response to free the hose so it would provide water to the scene. It was the opinion of the Illinois Supreme Court that in those few seconds or minutes, the training exercise turned into an emergency. (Gaffney, ¶66). Firefighter Gaffney’s belief that he was responding to an emergency was deemed reasonable; accordingly, the Illinois Supreme Court reversed the lower courts and awarded Firefighter Gaffney with the PSEBA health insurance benefits. Conversely, the high court found that Lt. Lemmenes did not face any unexpected or unforeseen circumstances during his training drill. The training occurred in a predetermined manner under controlled conditions and the participants were given specific instructions on how to proceed. Because there was no imminent danger or any unforeseen circumstances during this drill, the Illinois Supreme Court reversed the lower courts’ grant of PSEBA insurance benefits to Lt. Lemmenes. (Gaffney, ¶79).
Issues Identified in the Gaffney Dissenting Opinion
Three of the seven Justices of the Illinois Supreme Court filed an opinion concurring with the outcome of the Lemmenes decision but dissenting with the Gaffney decision. It is safe to say that there is a definite disconnect among the members of our state’s highest court on what sort of “emergencies” qualify an injured public safety officer for PSEBA health insurance benefits. First, the dissenters take umbrage with the majority for “grafting the entire definition of ‘emergency’ from one specific dictionary onto the statute” and treating the words of the dictionary editors “as if they were the words of the statute itself.” (Gaffney, ¶92) The Webster’s dictionary definition of “emergency” adopted by the Gaffney majority provides no enlightenment as to what persons or whose property must be in imminent danger. (Gaffney, ¶96) The dissenters preferred the interpretation of “emergency” adopted by the lower courts and the DeRose case, and believe that the majority opinion thwarts the will of the legislature.
The dissent identified some of the problems caused by the addition of the “unforeseen circumstance” requirement. The concerns include: what circumstance must be unforeseen: the call or the cause of injury, and whether the perspective of the firefighter, the supervisor, or the reasonable person must be used to determine whether something was foreseeable. It is then pointed out that firefighters who foresee danger and proceed to respond may be penalized while those who fail to recognize dangers are rewarded. (Gaffney, ¶93)
The dissent argued that adding this extra condition will exclude some PSEBA applicants who would have otherwise received the benefits while granting the benefit to some who would not have received it previously. The dissent further criticize the majority opinion ignoring the truism that firefighters who participate in a training exercise do not actually believe they are responding to a circumstance that involves imminent danger to another person or property. The concern is now raised that the majority decision could expand the reach of PSEBA benefits to nearly every line-of-duty injury so long as the circumstance that led to the injury was unforeseen. (Gaffney, ¶101)
The dissenting justices applied the DeRose analysis to the injuries of both firefighters and stated that both individuals knew that there was no real emergency. The dissent pointed out that neither an entanglement of a hose line nor the need to pull a dummy to safety were unforeseen by the designers of the training or by the participants. These are circumstances that firefighters expect to encounter in a real fire or a training simulation. (Gaffney, ¶110) The dissent then applied a “war games” analogy in that live ammunition may be used in war games, yet the participants understand that they are not at war; the same should hold true for firefighters in live fire training. (Gaffney, ¶117)
The dissenting justices further believe that a remote chance that a training participant might be injured in a training incident is not sufficient to constitute an imminent danger. Finally, the dissenters point out that the two cases appear to create a “live fire rule” under which virtually any serious injury sustained by a firefighter in a live fire training drill will be eligible for PSEBA health insurance benefits regardless of cause. (Gaffney, ¶121)
Lessons from the Gaffney Opinion
The most significant lesson we learn from the Gaffney opinion is the importance of determining whether an unforeseen circumstance occurred while the injured public safety employee performed his or her duties. Without any unforeseen circumstance, the PSEBA health insurance benefits should not be awarded. For example, a firefighter who is catastrophically injured after he slips on an icy sidewalk during a fire call arguably should be denied the PSEBA benefit because it is not unforeseeable that a sidewalk would be icy in the winter. Further, as the dissent points out, if a controlled burn becomes uncontrolled and a firefighter is injured responding to the fire, no PSEBA benefit would be awarded because it is quite foreseeable that any given fire can spread. It appears that it is now less important to determine if the firefighters were responding to an actual emergency than it is to analyze the precise circumstances under which firefighters are injured in actual emergencies and non-emergencies alike. The Illinois Supreme Court has effectively blurred the line between emergency and accident, and has opted to confer PSEBA benefits on all of the unlucky and strip the benefits away from some of those who are hurt while bravely performing in emergencies. One suspects that there will be more litigation involving the scope and breadth of “unforeseen circumstances.”
Another lesson for fire officials to consider is removing the element of surprise (or the unforeseen) from the live fire drill. Fire trainers should consider providing firefighters with the floor plan and layout of each structure they train in to counter the anticipated argument that an unforeseen piece of furniture, wall or stairwell otherwise interfered with the controlled nature of the drill. Of course this measure diminishes the value of the live fire drill. Most fire officers must understand that this is a tradeoff that may be necessary to limit liability for unforeseen injuries in live fire drills post-Gaffney.
Another consideration is to examine the method in which PSEBA claims are processed. The Gaffney ruling makes it clear that the fire district board is not an administrative body making a determination that is subject to the streamlined administrative review process. However, nothing prevents a fire protection district from requiring an injured firefighter to formally apply for a PSEBA benefit. Boards of trustees may want to consider adopting a form for this purpose asking for the relevant information necessary to fully evaluate each application. A policy establishing a process for the application and awarding of PSEBA health insurance benefit claims may also be advisable. Fire districts should certainly consider formally addressing the PSEBA application at a board meeting and should provide the applicant with notice of the board meeting and an opportunity to be heard. Any denial of the PSEBA benefits should be in writing.
The legal analysis of the phrase “response to what is reasonably believed to be an emergency” has been indelibly altered to include the element of the unforeseen. The foreseeable circumstances caused by the Gaffney opinion will be a marked change in the manner in which PSEBA applications are analyzed. This is a decision which must be carefully scrutinized with your fire district’s key decision-makers and with the advice of your legal counsel.