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Flaherty v. Retirement Board of the Policemen's Annuity and Benefit Fund-City of Chicago

December 30, 1999

JAMES FLAHERTY, PLAINTIFF-APPELLANT,
v.
THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND-CITY OF CHICAGO; MEMBERS OF THE BOARD REPRESENTING THE PUBLIC, WALTER K. KNORR, PRESIDENT, AND MIRIAM SANTOS, TREASURER; REPRESENTING THE ACTIVE POLICE AND DISABILITY BENEFICIARIES, CHARLES R. LOFTUS, RECORDING SECRETARY, JAMES L. O'NEILL, AND KENNETH A.HAUSER; REPRESENTING THE ANNUITANTS, RICHARD J. JONES, VICE PRESIDENT; JAMES B. WATERS, JR., EXECUTIVE DIRECTOR, DAVID M. MURPHY, COMPTROLLER, S. DAVID DEMOREST, M.D., PHYSICIAN, AND DAVID R. KUGLER, ATTORNEY FOR THE BOARD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 97 CH 6578 Honorable Albert Green, Judge Presiding.

The opinion of the court was delivered by: Justice Tully

Defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board), granted plaintiff, James Flaherty, ordinary disability benefits in the amount of 50% of his base salary after finding that his disability was not caused by an injury incurred while on duty as a Chicago police officer. Plaintiff appeals from the circuit court's order affirming the Board's decision, contending that the decision was against the manifest weight of the evidence, was arbitrary, capricious, and unreasonable, and that he was entitled to duty disability benefits in the amount of 75% of his base salary.

For the reasons that follow, we affirm.

Plaintiff was appointed a Chicago police officer on December 11, 1978, and remained on active duty until April 1995. On April 30, 1995, plaintiff was getting out of bed when he felt a sharp pain in his back. He collapsed in his kitchen a short while later, with pain that radiated from the lower left side of his back down his left leg.

Plaintiff suffered several work related injuries that he claimed caused the April 1995 incident. He injured his back while making arrests, once in 1979 and twice in 1988. However, the injury that plaintiff primarily credits with having caused his disability was a July 12, 1989, incident during which his three-wheeled Chicago police department (CPD) motorcycle was hit from behind by a vehicle traveling about 30 miles per hour faster than his motorcycle. Plaintiff stated that his body slammed backward onto the rear compartment of the motorcycle, and that he was treated for a back sprain as a result of that incident. Plaintiff also suffered back injuries as the result of an off-duty car accident in 1980 and an off-duty fall on a patch of ice in 1984. Plaintiff was able to return to full duty following each of these incidents, and did not suffer any other back related injuries during the six-year interval between the accident in July 1989 and the debilitating pain that began in April 1995.

A few days after the April 1995 incident, plaintiff was seen by Dr. David Smith, an orthopedic surgeon. Dr. Smith gave plaintiff several epidural steroid injections, and ordered a Magnetic Resonance Imaging (MRI) study of plaintiff's spine. The MRI indicated that plaintiff had "degenerative disc disease *** with evidence of disc herniation at all levels." Although plaintiff was still being treated by Dr. Smith at the time of the hearing, Dr. Smith did not testify.

Plaintiff was next evaluated by Dr. Daniel J. Hurley on June 27, 1995. Dr. Hurley theorized that plaintiff herniated his "L3-4" disc to the point that it "severely irritated the left L3 or L4 nerve root" on April 30, 1995. He did not recommend that plaintiff return to work, but noted, "[r]elative to the incident of April 30, 1995, obviously this happened at home *** In my opinion, certainly that particular incident did not happen at work. As far as the appearance of his back by MRI scan and how much that relates to work injuries, one would have to conjecture that his multiple injuries may have contributed." Dr. Hurley recommended that plaintiff have a myelogram CT scan in order to determine whether surgery was necessary.

On February 6, 1997, plaintiff was examined by Dr. Scott A. Kale, who specializes in internal medicine and rheumatology. According to Dr. Kale's report, the injury that plaintiff sustained on July 12, 1989, caused his disabling back condition. Dr. Kale stated:

"[a]s a result of that duty related trauma, he is disabled to the extent that he cannot perform police duties. To a reasonable degree of medical certainty, there is a direct relationship between his work accidents as a Chicago policeman and in particular, the incident of July 12, 1989, and his current, permanent, disabled condition."

At the hearing, Dr. Kale testified that he reached this conclusion after giving plaintiff a full examination and reviewing reports from Dr. Smith and Dr. Hurley along with the MRI ordered by Dr. Smith. Dr. Kale expanded upon the opinion offered in his report, testifying that a man of plaintiff's age would not suffer from the degenerative back condition that he suffered from absent some repetitive or acute trauma.

Two physicians testified at the Board's request. Dr. Marshall Matz, a neurologist, saw plaintiff on April 9, 1996. In his report, Dr. Matz stated that after reviewing the MRI, he did not believe plaintiff's back condition was disabling. At the hearing, he testified that although his review of the MRI showed an "extruded" disc fragment, he did not find any evidence of a neurologic disability and that he did not see anything to indicate that plaintiff could not resume full unrestricted police duty.

Dr. S. David Demorest, a family practitioner employed by the Board, stated that he examined plaintiff on July 15, 1996, and that he did not believe that plaintiff's injuries resulted from the July 1989 accident. He testified that, in his opinion, plaintiff suffered from "chronic low back pain syndrome *** degenerative disc disease, *** is deconditioned, and *** [has] muscle sprains and strains." He furthered testified that degenerative disc disease is a culmination of all of life's traumas, including daily living, and is part of the aging process in everyone. Ultimately, both Dr. Matz and Dr. Demorest were of the opinion that plaintiff may have been suffering from degenerative disc disease prior to 1995, but that the event that caused his debilitating pain occurred on April 30, 1995.

The Board found that plaintiff did not establish a causal connection between the injuries he complained of and the duty related incident of July 12, 1989, and that plaintiff's inability to return to full duty with the Chicago police department was due to the off-duty incident of 1995. As a result, the Board found that plaintiff did not qualify for duty disability benefits but was instead entitled to ordinary disability benefits.

Plaintiff begins by arguing that the Board's decision was against the manifest weight of the evidence in that the evidence showed that his injury occurred on duty, thereby entitling him to duty ...


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