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09/22/94 THOMAS D. SULLIVAN v. RETIREMENT FUND

September 22, 1994

THOMAS D. SULLIVAN, III, PLAINTIFF-APPELLANT,
v.
RETIREMENT FUND OF FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN N. HOURIHANE JUDGE PRESIDING.

Rehearing Denied November 17, 1994.

Hoffman, Johnson, Cahill

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Plaintiff, Thomas D. Sullivan III, sought administrative review from a decision of the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board), denying his application for duty-related disability benefits. (40 ILCS 5/6-151. ) The trial court affirmed the denial of benefits and plaintiff now appeals from this judgment, raising the following issues: (1) whether the Board's decision was contrary to the manifest weight of the evidence; (2) whether the Board denied plaintiff a fair hearing and due process; and (3) whether the trial court erred in denying plaintiff's request to amend his complaint to add a claim for non-duty disability benefits.

Plaintiff was employed as a paramedic with the Chicago Fire Department for nine years until July 23, 1991, when he suffered the back injury for which he now seeks benefits. Following the accident, plaintiff remained on paid disability leave for one year until July 23, 1992, when he was removed from the payroll. Plaintiff subsequently applied for permanent duty-disability benefits under section 6-151 of the Pension Code (Code)(40 ILCS 5/6-151). A hearing was held on his application on November 18, 1992, and the following evidence was adduced before the Board.

Plaintiff testified that on July 23, 1991, he and other paramedics were attempting to hoist a stretcher bearing a 400-pound patient. When one of the paramedics failed to lift his end, the entire load shifted onto plaintiff. Plaintiff initially struggled to support the stretcher, but then felt a "pop" in his back and severe pain and collapsed under the weight. Plaintiff testified that he immediately began to "spasm and tighten up" and that within a short time period he "tightened up" from his shoulder blades to his buttocks. Plaintiff was subsequently taken to the hospital, where the emergency room physician gave him pain medication and instructed him to remain in bed.

About one week later, plaintiff consulted with the fire department's medical director, Dr. Hugh Russell, who referred him to orthopedic surgeon Dr. Robert J. Daley. After examining plaintiff, Daley sent Russell an evaluation letter in which he diagnosed plaintiff's condition as lumbar radiculopathy with degenerative disc changes and transitional vertebrae. Daley noted that plaintiff had a history of duty-related back injuries and recommended that he undergo a magnetic resonance imaging scan (MRI) and an electromyogram (EMG) for further analysis. Daley placed plaintiff on a physical therapy schedule and ordered him to remain off of work.

Plaintiff remained under Daley's care until February of 1992, consulting with him about once every three weeks. During this time, he underwent physical therapy two or three times per week and was treated with muscle relaxants and steroids. Throughout the fall of 1991, Daley sent reports to Russell tracking plaintiff's progress. These reports, which were contained in the record, reflected that plaintiff had derived some benefit from treatment but was still in significant discomfort and that Daley felt he was not progressing well in therapy. Daley noted that plaintiff's MRI scan taken in August 1991 reflected mild bulging of the L1 and L2 intervertebral discs and desiccation of the disc space between L5 and S1, all in the vicinity of the lower to lower-middle back. Plaintiff's EMG was consistent with S1 radiculopathy on the left. In one early progress letter, Daley expressed hope that plaintiff could return to work in the future, noting that he had reported significant progress in pool therapy; however, throughout the remainder of the six month period in which plaintiff was under Daley's care, Daley consistently instructed that plaintiff was not yet capable of returning to his duties as a paramedic.

Daley advised plaintiff that he may require epidural steroid injections or back surgery in order for his condition to improve. Desiring a second opinion, plaintiff scheduled an appointment for a consultation with a neurological surgeon, Dr. Michael J. Jerva. In the meantime, the Department instructed plaintiff to undergo a "functional capacity evaluation," which plaintiff did. The specialist who administered this evaluation concluded that plaintiff demonstrated low functional capacities and deconditioning and that he was not ready to meet the critical demands of paramedic work. The specialist observed, however, that plaintiff at times terminated the weight-lifting programs with non-specific complaints of pain and that he did not demonstrate behaviors consistent with his high reports of pain to the lower back. The specialist recommended that plaintiff undergo a "B200" evaluation for a more objective analysis.

Two weeks later, plaintiff took the B200 test, which is a two-hour, computerized weight-lifting test. Plaintiff testified that he was instructed to "go all out" in his efforts and that any failure to fully exert himself would be detected through the computer. The B200 test results showed that plaintiff performed the with "consistent effort"; nonetheless, he ranked below the 10th percentile in range of motion testing, in the 30th percentile for "functional back strength," and below the 10th percentile in isometric tests. According to plaintiff, these tests caused him to suffer a relapse in his symptoms necessitating additional specialized physical therapy.

On January 25, 1992, plaintiff went for his consultation with Jerva. After reviewing plaintiff's recent medical history, Jerva reaffirmed Daley's diagnosis of lumbar radiculopathy and spondylosis, noting evidence of "desiccation of the L5-S1 intervertebral disc with protrusion at that level." Jerva recommended, however, that plaintiff's tests including the MRI be updated prior to any further interventional treatment.

Jerva also recommended that plaintiff undergo a myelography examination to determine the feasibility of back surgery. Jerva noted, however, that plaintiff had previously suffered a life-threatening anaphylactic reaction to the iodine dye used in myelography; thus, he referred him to an allergist to explore the possibility of desensitizing him prior to the test. The allergist, Dr. Dolly Thomas, reported that plaintiff was at "high risk" for an allergic reaction to myelography, and urged if the test was indeed "essential", that it be done with great caution, that plaintiff be hospitalized and closely monitored both before and afterward, and that the test be administered with emergency staff and equipment standing by.

On May 1, 1992, after plaintiff's updated testing, Jerva reported that lumbar spine x-rays showed narrowing of the T12 and L1 and L2 disc spaces with no evidence of instability. He further found that the EMG and nerve conduction study were normal, as was a radioisotopic bone scan. Jerva determined, however, that plaintiff's second MRI scan, taken March 19, 1992, revealed "extensive degenerative changes of the facet joints with degenerative cyst formations at multiple levels and compromise of the left neural foramen at the L5 level." There was no ...


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