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Case Clarifies Eligibility for PSEBA for Hearing Loss

October 6th, 2014

Pedersen v. Village of Hoffman Estates and James H. Norris, Village Manager,        2014 IL App (1st) 123402

The First District Appellate Court reversed a decision denying benefits under to the Public Safety Employee Benefits Act (“PSEBA”) to a firefighter.  Following Defendants Village of Hoffman Estates and Village Manager James H. Norris’ decision denying Firefighter Alan R. Pedersen’s claim for continuing health coverage benefits, plaintiff filed a multi-count Complaint in Circuit Court.  In part, the Complaint alleged an administrative review of the denial of benefits pursuant to Section 10 of PSEBA.  The Circuit Court affirmed the Defendant’s decision denying benefits.

Prior to when his Village employment, Pedersen worked at O’Hare Airport in an area requiring him to wear protective hearing equipment.  He was then hired in 1976 by the Village as a firefighter and EMT.  Following an annual physical which noted a “shift” in his hearing, Pedersen was fitted with bilateral hearing aids.  As a result, he was placed on light duty in June 2003, but was able to return to full duty three months later with a medical release.  On June 22, 2004, Pedersen responded to a call of a tanker truck fire on the toll road.  After the fire was extinguished and Pedersen cleaned up the scene, a coworker accidentally activated a fire engine’s siren.  Pedersen was approximately two feet from the front of the engine at the time, and he later described the event as though his ears were going to “blow up and were bleeding.”  Pederson ripped out his hearing aid and broke it in the process.  The next day Pedersen visited his audiologist due to pain in his ears.  Another doctor later released Pedersen to full duty, after noting no change from a 2003 hearing test.

Pedersen worked as a firefighter until February 2005 when he went to the wrong location of an automobile fire because he misheard information.  Also, he had trouble hearing pre-alert tones because he slept without his hearing aids, and he could not always hear the whistle on air packs.  As a result, Pedersen was informed by the fire chief that he would no longer be working as a full-time firefighter.  He received benefits under the Public Employee Disability Act, and later applied, and was granted, a line of duty disability benefit from the Hoffman Estates Firefighters’ Pension Fund.  The Board found “that the incident of June 22, 2004, in response to an emergency, caused firefighter Pedersen to become disabled relative to his hearing loss.”

Section 10 of PSEBA, in part, requires employers of firefighters to pay health insurance premiums for a firefighter, spouse, and dependent children if the firefighter suffers a catastrophic injury.  Eligibility is triggered when that firefighter is injured as a result of a “response to what is reasonably believed to be an emergency.”  However, on May 27, 2008, the Village denied Pedersen’s claim for health benefits, finding that medical evidence suggested his disability was due to cumulative effects of exposure to noise over time, in both emergency and nonemergency situations, on and off duty.  In addition, hearing officer Norris found the June 22, 2004 incident did not cause or aggravate Pedersen’s preexisting hearing loss.

In evaluating the claim, the Circuit Court cited Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012.  In that case, the Illinois Supreme Court held that in order to be entitled to benefits under section 10(b) of PSEBA, “the injury must occur in response to what is reasonably believed to be an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”  Gaffney, 2012 IL 110012, ¶64.  Here, the Circuit Court said this was not in response to an emergency, that the accidental sounding of the siren was unforeseen, and it did not involve imminent danger to persons or property requiring an urgent response by Pedersen.

The Appellate Court, in its review, noted that the Illinois Supreme Court has held the term “catastrophic injury” to be synonymous with an injury resulting in a line-of-duty disability under the Illinois Pension Code.  Since there was no issue that he suffered a catastrophic injury, the issue turned to whether the injury resulted from what Pedersen reasonably believed to be an emergency.  Again looking to Gaffney, the court noted that an event or incident which is not initially an emergency may become an emergency as the circumstances change.  The court found Pedersen’s testimony regarding the scene of the tanker truck fire on the toll road to be consistent with a response reasonably believed to be an emergency under PSEBA; the emergency was ongoing and the scene remained dangerous.  As such, the Appellate Court reversed the Defendants’ decision to deny benefits as clearly erroneous.