Rule 23 – 1st District – Decided March 29, 2024
In this case, the Harvey Police Pension Board terminated the disability benefits of the Plaintiff, Officer Marcano. Marcano had initially been granted disability benefits due to a permanent, partial loss of hearing in his right ear resulting from an on-duty injury during which he was shot in 1998, and had been receiving benefits for approximately 18 years. However, the Board later found that Marcano had recovered from his disability and was capable of working full unrestricted police duties and took action to terminate the pension benefits.
The Pension Board learned that Marcano had been working for over 16 years as a full-time sheriff’s deputy and detective for the Hillsborough County Sheriff’s Office in Florida, during which he performed various law enforcement duties without seeking or needing accommodation for his hearing loss. Additionally, the court highlighted Marcano’s own statements indicating he was never placed on restricted duty on account of any hearing loss and there was no indication that he ever asked for an accommodation for hearing loss at his Sheriff’s job.
Marcano argued that the case of Martino v. Police Pension Board of the City of Des Plaines should apply. In Martino, the officer was allowed to retain a disability from the initial pension fund and obtain a full time police job from a second department based on the first department’s inability to accommodate the physical disability and the second department’s willingness to accommodate the physical disability. Here, unlike in Martino, the Harvey Police Pension Board did not concede that Marcano continued to suffer from a disability, there was substantial evidence demonstrating that Marcano had recovered from his disability, including his successful performance as a law enforcement officer for many years. In addition, the Harvey Police Chief testified that if the pension board were to determine that Marcano had recovered from his disability and could return to full and unrestricted police duties, then Marcano would be rehired by the Harvey police department.
A second issue presented in this case was Marcano challenged the Pension Board’s entering of an interim decision to terminate benefits at the initial hearing before the Board pending a final decision after the administrative hearings concluded. The proceedings lasted approximately 3 years. Marcano argued the board lacked statutory authority to suspend benefits pending a full hearing and final decision, and sought back benefits for the three year period between the interim and final determination to terminated benefits.
The Court held that Marcano had waived any argument regarding the interim suspension of benefits by not objecting at the time the Board entered its interim decision. The Court also noted payments were not terminated by the interim decision, they were only temporarily suspended and were subject to reinstatement when the administrative proceedings concluded. The Court acknowledged that the Board’s suspension of benefit payments after the first hearing was prudent in light of the board’s fiduciary duty to ensure that adequate pension fund assets are available to all qualified pensioners.
In conclusion, the Court affirmed the Pension Board’s determination to terminate disability benefits to Marcano which found he had recovered from his disability.