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03/16/89 Gregory Thurow, v. the Police Pension Board

March 16, 1989

GREGORY THUROW, PLAINTIFF-APPELLANT

v.

THE POLICE PENSION BOARD OF THE VILLAGE OF FOX LAKE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 155, 180 Ill. App. 3d 683, 129 Ill. Dec. 471 1989.IL.333

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. DUNN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Plaintiff, Gregory Thurow, appeals from an order of the circuit court of Lake County which, on administrative review, affirmed the decision of the Village of Fox Lake Police Pension Board (Board). The Board denied plaintiff's application for a duty-related disability pension under section 3-114.1 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 3-114.1). We reverse and remand.

Plaintiff raises four assignments of error on appeal: (1) whether the Board erroneously relied upon medical reports of examinations taken long after plaintiff applied for his pension; (2) whether the Board should not have considered any evidence regarding the source of plaintiff's injury because such evidence was presented in plaintiff's claim for unemployment compensation; (3) whether plaintiff was Judged fairly and with impartiality at the hearing given the fact that the Board's attorney actively participated in the proceedings; and (4) whether the Board's decision that a light-duty position was available was against the manifest weight of the evidence.

Plaintiff began his employment with the Fox Lake police department in February 1983, and he obtained the rank of patrolman in February 1984 after he successfully completed his one-year probationary period. On April 16, 1984, plaintiff responded to a domestic disturbance call. During the call, a struggle occurred and plaintiff was injured, although he did not notice his lower back injury until the following day. He continued to work for approximately two weeks, until such time as the pain forced him to leave his shift early and return home. Plaintiff stayed at home from May 3, 1984, to May 16, 1984. He returned to work on May 17, 1984, and performed light duties per his physician's advice. Around July 1, 1984, plaintiff returned to his regular duties as a patrolman. He continued this position until February 22, 1985, when he again left work early due to his lower back pain. Plaintiff was placed on temporary total disability from February 22, 1984, until July 4, 1986, receiving workers' compensation benefits. Plaintiff visited several doctors and was hospitalized for tests during this period.

On November 5, 1985, plaintiff applied for a duty-related disability pension. Plaintiff submitted reports of physical examinations to the Board, and a hearing was held on March 4, 1987. Plaintiff testified at the hearing that he was presently working as a salesman and security guard for Collins Investigations, but that he was looking for a new job in the insurance investigation field. Plaintiff also stated that he played golf two or three times per month in the summer.

In a letter dated June 26, 1987, the Board notified plaintiff that his request for a disability pension was denied. The Board listed four reasons for the denial: (1) the lack of specific medical testimony concerning plaintiff's disability; (2) plaintiff's current job situation and the fact that he does play golf indicate that he could still hold a job with the police department; (3) plaintiff's injury appears to be a preexisting condition; and (4) the police report written after the domestic disturbance incident did not state any injuries to the officers involved.

On July 24, 1987, plaintiff appealed the Board's decision to the circuit court of Lake County under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.). On May 10, 1988, the trial Judge entered an order affirming the Board's decision. The Judge noted that he was unable to find that the Board's decision was against the manifest weight of the evidence. This appeal followed.

Initially, we note that the function of a court in reviewing a decision of an administrative agency is not to reweigh the evidence but instead to determine whether the agency's decision is against the manifest weight of the evidence. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73; Boffa v. Department of Public Aid (1988), 168 Ill. App. 3d 139, 145.) Under section 3 -- 110 of the Administrative Review Law, the findings and Conclusions of an administrative agency on questions of fact are held to be prima facie true and correct and must be affirmed unless they are contrary to the manifest weight of the evidence. (Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 1026; Smith v. Department of Public Aid (1986), 150 Ill. App. 3d 584, 586.) An administrative decision is not contrary to the manifest weight of the evidence merely because an opposite Conclusion is reasonable or if the reviewing court might have ruled differently. (Fadler, 153 Ill. App. 3d at 1026; Collura, 135 Ill. App. 3d at 838.) However, a court of review should not hesitate to intervene when an administrative order is against the manifest weight of the evidence. Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 497; Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 207.

Duty-related disability pensions for police officers are provided for in section 3 -- 114.1 of the Code. Section 3 -- 114.1 provides in part:

"If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by ...


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