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04/25/94 KENNETH WILFERT v. RETIREMENT BOARD

April 25, 1994

KENNETH WILFERT, PLAINTIFF-APPELLANT,
v.
RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS O'BRIEN, JUDGE PRESIDING.

As Corrected August 1, 1994.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Kenneth Wilfert appeals an order of the circuit court of Cook County denying his petition for administrative review of the decision of defendant Retirement Board of Firemen's Annuity & Benefit Fund of Chicago ("Board") that plaintiff was not entitled to duty disability benefits. Plaintiff also appeals the trial court's decision denying him leave to amend his complaint to include a civil rights claim against the Board pursuant to 42 U.S.C. § 1983.

The record of the Board's proceedings with respect to plaintiff's claim for duty disability benefits indicates the following facts. Plaintiff, who appeared before the board pro se, indicated that he had attained the rank of Fire Paramedic with the Chicago Fire Department. Plaintiff testified that he had been a paramedic for five years and had been employed by the Chicago Fire Department for three and one-half years. On December 22, 1989, after dealing with a combative patient on a stretcher, plaintiff started having cramping in his hand, which he reported to his superior officer. The record indicates that plaintiff suffered pain in his left thumb and wrist. At 4:30 a.m. on December 23, 1989, plaintiff advised his superior officer that his hand was bothering him much more than before. Plaintiff went to Holy Cross Hospital, where he was told to make an appointment to see Dr. Melhouse, who was an orthopedic doctor. According to plaintiff, in early January 1990, Dr. Melhouse ran an EMG test on plaintiff that showed "slowing in C-5/C-6 and C-7." Plaintiff stated that Dr. Melhouse diagnosed him with a brachial plexus contusion and told him to rest for six weeks before a re-examination.

Plaintiff testified that he was also seen by a Dr. Jablon, who plaintiff indicated was well-known for hand surgery, and a Dr. Zak, who was a neurologist. According to plaintiff, these doctors concurred that plaintiff suffered from a brachial plexus injury. Plaintiff testified that Dr. Zak prescribed Naprosyn and Flexeril and thrice-weekly physical therapy sessions at Sports Performance. Plaintiff indicated that Dr. Hugh H. Russell, whom the record indicates was the Medical Director for the Chicago Fire Department, ordered him over to Baxter Medical Group for "work hardening" training without conferring with plaintiff's treating physician. Plaintiff indicated that while he showed some improvement from the initial physical therapy sessions, he did work hardening training and "after Baxter, my whole complaints flared up even more worse."

Plaintiff saw his treating physician, who performed a MRI test and ordered plaintiff to continue with physical therapy. Plaintiff testified that he was still in therapy and had a lot of pain in his neck, underneath his arm, in the elbow, ribs and back shoulder muscles.

Pursuant to questioning, plaintiff indicated that prior to December 22, 1989, his left arm would become tired and he would have difficulty holding a book for a long period of time. Plaintiff also indicated that in March 1989, the ambulance he had been driving in response to a report of a drug overdose was struck by an automobile. Plaintiff testified that he had been proceeding through the intersection of 76th and Loomis on a green light at the time. Plaintiff indicated that he was smashed into the left side of the ambulance door, his arm went through the window and his head hit the top of the ambulance. Plaintiff testified that he was taken to the hospital, where he was diagnosed with a severe blunt trauma to the whole left side of his body. Plaintiff indicated that he returned to work and performed all of his duties a few days after the accident, though he had told Dr. Russell that his left side was still sore. Plaintiff further indicated that he had not worked since December 23, 1989.

Upon further examination by the Board's attorney, plaintiff indicated that he had seen Dr. Zak, who was recommended by the Chicago Fire Department, Dr. Jablon, Dr. Russell, and Dr. George Motto, who the record shows was the Board's physician.

Dr. Motto testified regarding his credentials, including his position as the Board's physician since 1974. Dr. Motto testified that he examined plaintiff on January 9, 1991, and had reviewed plaintiff's medical records. The record shows that plaintiff's medical records were admitted into evidence at the outset of the hearing without objection. These records, and duplicates thereof, consume dozens of pages of the record on appeal and will be referred to below as necessary. Dr. Motto testified that at the that time, plaintiff was disabled and should not perform paramedic duties due to persistent difficulties with his left shoulder, arm and hand. Dr. Motto testified that these difficulties took the form of numbness, tingling, cramping and pain. Dr. Motto added, however, that the disability may not be permanent and that plaintiff should be seen in follow-up examinations.

Pursuant to questioning by the Board's attorney, Dr. Motto testified that plaintiff's complaints were "subjective with minimal objective findings." Dr. Motto referred to a February 1991 letter from Dr. Zak that indicated plaintiff had -- in Dr. Motto's words -- "some minimal functional decline in his left arm." The Board's attorney then asked the following question:

"Q * * * Doctor, with your experience and having examined the applicant and hearing the testimony today, could you say within a reasonable degree of medical certainty that the accident of March 25, [19]89 and the incident of December 23, 1989, is not the cause of Mr. Wilfert's present medical disability?"

Dr. Motto answered "Yes." The Board then proceeded to vote on plaintiff's application for duty disability benefits. The Board voted to deny plaintiff's application, then voted to grant ordinary disability benefits. Plaintiff then obtained counsel, who sought reconsideration ...


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