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06/24/94 CITY CHICAGO v. ILLINOIS HUMAN RIGHTS

June 24, 1994

CITY OF CHICAGO, A MUNICIPAL CORPORATION, APPELLANT,
v.
ILLINOIS HUMAN RIGHTS COMMISSION, APPELLEE, AND RICHARD FOSS, APPELLEE AND CROSS-APPELLANT.



Petition for Review of an Order of the Illinois Human Rights Commission. Charge No. 1985CN2420. ALS No. 2770.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Complainant, Richard Foss ("Foss"), filed an action with the IllinoisDepartment of Human Rights against the City of Chicago ("City") alleging that the City had discriminated against him on the basis of his handicap when it refused to allow him to return to work after medical leave. The Illinois Human Rights Commission ("Commission") issued a decision sustaining Foss' claim, and ordering that Foss be reinstated in his former position at the Chicago Fire Department with back pay and benefits. The City appealed the Commission's decision, and Foss filed a cross-appeal. Subsequently, we granted the City's motion to dismiss its appeal, but allowed Foss' cross-appeal to remain before this court. In his cross-appeal, Foss argues that the Commission abused its discretion by offsetting the disability pension benefits he had received against his back pay award. The City challenges our jurisdiction to hear the cross-appeal.

We affirm.

BACKGROUND

Foss was hired by the City of Chicago Fire Department as a fire fighter on October 16, 1966, and in 1973, he was promoted to a position of fire engineer. In May 1983 and again in January 1984, Foss fainted without warning. Foss was hospitalized in January and diagnosed as having syncope, which is sudden, brief unconsciousness. While he was hospitalized, he underwent a series of examinations and tests.

Dr. Petropoulos, a cardiac specialist, concluded that Foss had no clear cardiac difficulties. In addition, Dr. Schwartz, a neurologist, found that Foss had no discernable neurological abnormalities. Dr. Schwartz recommended treatment with Dilantin, a seizure medication, to prevent further fainting episodes, and he also recommended limited short term restrictions for Foss, such as decreasing alcohol consumption and ceasing driving a vehicle. Although the physicians were unable to ascertain the cause of Foss' syncope episodes, generally accepted medical practice indicated that Foss could resume his normal duties, including those duties associated with his job as a fire engineer, within six months to a year, if he remained syncope free for that period. Foss did not have any other syncope episodes after the one he experienced in January 1984.

Dr. Mesnick, the medical director for the City, was responsible for examining injured and disabled employees to determine if the employees could be returned to full-time, unrestricted duty. On May 30, 1984, Dr Mesnick placed Foss on long-term medical leave.

On June 30, 1984, Dr. Patricoski, one of Foss' treating physicians, released Foss to unrestricted duty. Although Foss submitted the release to Dr. Mesnick, Dr. Mesnick refused to release Foss to work. Foss obtained a second letter, dated September 13, 1984, from Dr. Patricoski releasing him to duty without restriction. In that letter, Dr. Patricoski reiterated that though his diagnosis remained syncope of undetermined origin, Foss could return to work, resume driving, and resume all physical activity.

On November 9, 1984, Foss asked Dr. Mesnick if he could be placed on limited duty and the doctor denied his request. In December of 1984, as Foss approached the end of one year of medical leave, Dr. Mesnick determined that Foss would not be allowed to return to duty in January of 1985. Dr. Mesnick diagnosed Foss as having high grade ventricular arrhythmia, a heart condition. His diagnosis was not based on his examination of Foss, reports submitted by physicians who had personally treated Foss, or the laboratory tests ordered by Dr. Mesnick.

On December 14, 1984, Dr. Petropoulos, the cardiac specialist, sent a letter to the City explaining that an extensive cardiac workup had been performed on Foss and that it revealed no structural heart disease or clinical arrhythmia. Dr. Petropoulos concluded that Foss' workup was essentially normal and, in his opinion, Foss had no significant heart rhythm disturbance.

On January 10, 1985, Dr. Winterfield, another cardiac specialist, sent a letter to the City stating that Foss's condition had been stable for a considerable period of observation, and that there was no evidence that Foss had heart disease. Therefore, he concluded that Foss could return to regular duties.

After Foss learned that Dr. Mesnick would not reinstate him to duty, he requested a leave of absence so that he could apply for disability benefits from the Firemen's Annuity and Benefit Fund (Pension Board); he applied for benefits on December 20, 1984. The Pension Board relied on its physician consultant, Dr. Motto, to advise it about the medical conditions of individuals applying for disability pensions. Dr. Motto was the only person who testified before the Pension Board in connection with Foss' application for benefits. He stated, without reference to any particular findings, that he agreed with Dr. Mesnick, that there appeared to ...


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