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June 26, 1997


Appeal from the Circuit Court of Cook County. Honorable Thomas P. Durkin, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice Burke delivered the opinion of the court. Wolfson, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

Defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund (Board), appeals from the circuit court's reversal of the Board's decision granting plaintiff Kathy Samuels, a Chicago police officer, duty disability benefits but limiting the benefits to 50% of her base salary, based on the court's determination that the Board's decision was contrary to the manifest weight of the evidence. On appeal, the Board argues that the trial court abused its discretion in substituting its judgment for the Board's and, alternatively, that the Board's decision was not against the manifest weight of the evidence and that the Board properly interpreted the pension Code (40 ILCS 5/5--1554 (West Supp. 1996)) in making its decision. For the reasons set forth below, we reverse.

On December 1, 1992, Officer Samuels was on duty, when, while separating two combatants, she was injured when one of the combatants fell on her and she fell backwards and struck her head and right rear shoulder area against a door frame (on-duty injury). At the time of this incident she felt extreme pain; Later that evening she filed an "Injury on Duty Report." At the completion of her duty on the morning of December 2, she received emergency medical attention at Ravenswood Hospital. After being released from the hospital she went to see Dr. James Bransfield, the chief surgeon of the Chicago police department. He scheduled "MRIs" (magnetic resonance imaging) for her but did not examine her.

Dr. S. Nadimpalli, a radiologist, took MRIs of Samuels' back and head on December 4, 1992. Dr. Nadimpalli reported that the MRI of Samuels' thoracic vertebrae revealed mild disc degeneration at T6-7 and T7-8 levels, but no herniation. On the MRI of her cervical spine, Nadimpalli found as follows: "posterior and centrally budging discs at C4-5, C5-6 and C6-7 levels. Mild impingement on anterior surface of the spinal cord at C4-5 and C5-6 levels. No evidence of spinal stenosis or nerve root compression." The MRI of Samuels' brain was normal. On December 16, 1992, Samuels' supervisor entered a report of medical absence on behalf of Samuels.

Dr. Bransfield subsequently referred Samuels to Dr. Francisco Gutierrez, an assistant professor of neurosurgery at Northwestern University Medical School. Gutierrez wrote reports detailing his examinations and treatment of Samuels on December 16, 1992, January 28, 1993, March 15, 1993, June 16, 1993, September 2, 1993, and December 8, 1994. During his treatment of her, Gutierrez found that Samuels' initial MRIs showed a herniated disc at C4-C5 and C5C6 that was compressing her spinal cord and degenerative disc disease at C4-C5 and C5-C6. According to Gutierrez, Samuels' later MRI showed "a questionable, tiny, left paramedian protruding herniated nucleus pulposis at C6-C7," which did not have "significant impression on the thecal sac or impinge on the spinal cord." Gutierrez further found that there was no "electromyographic evidence for radiculopathy," but that radiculopathy was not ruled out and that Samuels had limitation in her neck's range of motion. Gutierrez concluded that Samuels' complaint of "paresthesia" in her hands was likely in part related to carpal tunnel syndrome. He recommended that Samuels receive physical therapy, a myelogram and CT scan, and finally, surgery.

On February 3, 1993, Samuels's supervisor entered a second report of medical absence for Samuels. On February 15, 1993 and December 28, 1994, Samuels was examined by Dr. Alan Hirsch, a neurologist. He reported his impression of Samuels' condition as "post traumatic cephalgia" and "cervical herniated nucleus pulposus." He found that Samuels' MRIs "revealed a herniated nucleus pulposus C4-5 and C5-6 with an impingement on the spinal cord at C4-5 and C5-6 levels" and that tests revealed "delayed nerve conduction velocity in right upper extremity consistent with peripheral nerve dysfunction." Hirsch reported that "at this point in time there has been neurologic loss and intractable pain" and found that based on these results, Samuels was not able to return to police duty. Hirsch did not recommend surgery or a myelograph initially, but stated that it could be an option later.

Samuels received notice to return to work on July 23, 1993, on convalescent duty. However, Samuels was unable to work and, on August 17, Samuels' supervisor entered a third report of medical absence.

On July 29, 1993, Dr. Louis Pupillo, a neurosurgeon, sent a report to Dr. Bransfield regarding his examination of Samuels. Pupillo's impressions were that Samuels had myofascial pain syndrome "superimposed" on chronic, preexisting degenerative disc disease. He found no evidence of a herniated disc, radicular compression or spinal cord compression. He determined that if Samuels' myofascial pain syndrome continued for more than a year, he would consider spinal fusion, but that a conservative treatment was currently appropriate.

On April 27, 1994, Dr. Bransfield sent an interoffice communication to the director of the police department's personnel division, the executive secretary of the Board and to Dr. S. David Demorest, a general practitioner who worked for the Board, in which he stated that Samuels was unable to perform unrestricted police duties because she had a central herniated disc at C5-C6 with associated cervical radiculopathy. This memorandum showed that Samuels was to be assigned a disability pension, effective May 5. On May 25, Samuels was examined by Dr. Demorest. He concurred with Dr. Pupillo's finding of myofascial pain syndrome and chronic, preexisting degenerative disc disease. Demorest wrote a report on June 9, again detailing his examination of Samuels and his review of her medical history.

On July 28, 1994, the Board held a hearing on Samuels' claim for duty disability benefits. Samuels was represented by counsel. Samuels described the incident during which she was injured and her physical complaints. She testified that she never had problems with her back and was very active prior to her on-duty injury. She stated that she was currently very limited in her activities and had a difficult time doing simple tasks. She further stated that since her on-duty injury, the police department had sent her to four doctors: Gutlerrez, Hirsch, Pupillo, and Demorest. She also saw a doctor in the emergency room at Ravenswood Hospital and Dr. Bransfield. She contended that Dr. Pupillo's examination was cursory and incomplete. She disagreed with Dr. Pupillo's report which stated that she was suffering from preexisting degenerative disc disease. She further stated that she wanted to go back to work, but did not feel able.

The Board and Samuels' attorney discussed the fact that Samuels' normal health insurance would not cover her disability because it was work-related. Samuels further testified that she had not seen a doctor or had physical therapy since September 1993 because her medical time had expired, she could not use her regular medical insurance because her disability was work-related and she could not afford to pay for this care herself, and she was under ...

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