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Nowak v. The Retirement Board of the Firemen's Annuity

June 30, 2000

HERBERT NOWAK, PLAINTIFF-APPELLANT,
V.
THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County. No. 96 CH 6577 The Honorable Albert Green, Presiding Judge.

The opinion of the court was delivered by: Justice Buckley

Plaintiff Herbert Nowak appeals from the circuit court's judgment affirming defendant Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago's (the Board) denial of his application for duty disability benefits under Article 6 of the Illinois Pension Code (the Code) (40 ILCS 5/6-101 et seq. (West 1992)). Plaintiff contends that the administrative decision of the Board is against the manifest weight of the evidence. For the reasons that follow, we hereby affirm.

STATEMENT OF FACTS

On November 2, 1995, plaintiff Herbert Nowak filed an application for duty disability benefits with the Board. The hearing before the Board commenced on November 20, 1995. The matter was continued at the request of Nowak's counsel to January 17, 1996. On January 17, 1996, the Board's attorney informed the Board that he received a letter from Dr. Shermer and a letter from Dr. Cerullo the night before. He asked for additional time to copy the documents for distribution to the Board members. He also suggested that, due to "ambiguities in the medical examination," another medical opinion may be appropriate. Nowak's counsel did not object and the hearing was continued to April 24, 1996. On that day, three witnesses testified: Nowak, Chychula (the para-medic working with Nowak at the time of the accident), and Dr. George Motto. In addition to the witnesses' testimonies, the Board entered into evidence reports from the following physicians: Dr Shermer, Dr. James Ryan, Dr. F. Todd Wetzel, Dr. Richard Feely, and Dr. Leonard Cerullo.

The relevant evidence before the Board is as follows: According to Nowak, he sustained an injury on October 31, 1994, while on duty. The injury occurred while Nowak was at the scene of an accident on the Dan Ryan expressway. Nowak and his partner were in the ambulance, which was parked in front of an Illinois Department of Transportation (IDOT) truck, when the IDOT truck was struck from behind by a semitrailer truck causing the IDOT truck to crash into the rear of the ambulance. At the time of impact, Nowak was partially seated, leaning forward over the head of a victim. The impact caused Nowak to be thrown backwards toward the front of the ambulance. He may have been unconscious for a short period after impact. Nowak was taken to Mercy Hospital after he and his partner called for the necessary assistance and packed up the ambulance. At Mercy, Nowak was evaluated by an emergency room doctor and released.

According to Nowak, after the accident, he first sought treatment from Dr. Richard Feely, an osteopath. Dr. Feely performed spinal manipulations and acupuncture. Nowak stated that the relief he received from Dr. Feely's treatment lasted only two to four hours and that the physical therapy was not helping him become stronger. According to Nowak, at one point Dr. Feely suggested that he use Chinese herbs. On January 13, 1995, Dr. Feely told Nowak that he was fit to return to duty with the following restrictions: (1) lifting no more than 60 pounds; (2) no stair climbing; and (3) remaining on medication. Dr. Feely signed a return-to-work order for January 17, 1995. Nowak did not return to work.

On January 27, 1995, Dr. Feely sent a narrative report regarding Nowak to Dr. Hugh Russell, the medical director for the Chicago fire department. According to Dr Feely's report, he first saw Nowak on November 8, 1994. His diagnosis was cervical strain, cervical myositis and somatic dysfunction of the head, cervical, thoracic, lumbar, sacrum and pelvis. He had seen Nowak on a twice weekly basis and had prescribed Lodine and Soma. Dr. Feely last saw Nowak on January 13, 1995, when he signed Nowak's return-to- work order. At that time, Nowak was taking Soma, Fiorinol and Relafin. According to Dr. Feely's report, during the course of treatment, the diagnosis remained the same: somatic dysfunction of the head, cervical, thoracic, lumbar, sacrum, and pelvis along with tension cephalgia and occasional insomnia. Dr. Feely recommended that a work fitness examination be performed to determine Nowak's lifting capacity.

On January 19, 1995, Nowak sought a second opinion from Dr. Leonard Cerullo, a specialist in neurosurgery and neuroresearch. After examining Nowak and performing MRI tests on his cervical and lumbar spine, Dr. Cerullo diagnosed Nowak with cervical and lumbar radiculopathy and degenerative disc disease of both the cervical and lumbar spine.

On April 28, 1995, after a follow-up examination of Nowak, Dr. Cerullo wrote a letter to Dr. Russell regarding Nowak. Dr. Cerullo informed Dr. Russell that Nowak "continues to be symptomatic" and has failed to improve over the past three months despite an "excellent outpatient program and continued home exercise program." He indicated that Nowak was taking Relafen and Fiorinal. Dr. Cerullo also informed Dr. Russell that the "MR[I] scan of the lumbar spine shows degenerative disc disease with marked narrowing of the disc space at L5-S1, and a cervical study demonstrated a bulging disc at C5-6 and a degenerated disc at C6-7." Due to Nowak's "failure to improve" Dr. Cerullo recommended a trial of aggressive/conservative therapy in the hospital.

On June 2, 1995, Dr. Cerullo wrote a second letter to Dr. Russell informing him that Nowak had completed a trial of aggressive/conservative therapy for his lumbar radiculopathy at the Chicago Institute of Neurosurgery and Neuroresearch (CINN). He also stated that Nowak had received one steroid injection. Nowak was scheduled for a second injection but it had been postponed due to a change in symptoms, i.e., Nowak was experiencing symptoms in his entire left leg rather than just in his back, buttock and left thigh. Dr. Cerullo recommended that Nowak have another MRI scan.

On June 23, 1995, Dr. Cerullo wrote another letter to Dr. Russell which stated that, "[o]ur physical therapist feels that further therapy, transitioning into the work hardening program is indicated." He also stated "I believe [Nowak] should start considering a change in professions. I am not sure that he will be able to return to work as a paramedic."

In the summer of 1995, Nowak actively participated in the work hardening program at the Work Injury Network (WIN). Nowak's discharge summary dated September 1, 1995, indicated that at the conclusion of the program Nowak showed both objective and subjective improvement in his physical function capacity. Nevertheless, the summary concluded that he "cannot currently perform at the physical demand level necessary for his previous position of paramedic with the Chicago Fire Department due to his inability to perform at the Very Heavy Physical Demand Level as outlined by the U.S. Department of Labor's, Dictionary of Occupational Titles, DOT#079.364-026."

On September 25, 1995, Dr. Hugh Russell, the medical director for the Chicago fire department, sent a letter to Dr. George Motto, the physician for the Firemen's Annuity and Benefit Fund of Chicago, detailing the course of treatment Nowak had received under the care of Dr. Cerullo. In the letter, Dr. Russell noted that the second MRI done on June 6, 1995, demonstrated narrowing of the L5-S1 disc innerspaces and showed no significant bulging or herniated disc.

In November 1995, Dr. Cerullo notified the Chicago fire department that he did not recommend that Nowak return to his job as a paramedic.

On November 2, 1995, Nowak submitted his application for duty disability benefits to the Board.

Nowak next saw Dr. Motto. On November 15, 1995, Dr. Motto submitted his report to the Board. The report detailed Nowak's course of treatment, Dr. Cerullo's diagnosis through June of 1995, and Dr. Motto's own examination results, which were as follows: "[T]he

applicant was an alert cooperative man who walked with his head straight and moving his head with not much difficulty but with a straight back. He rose from a chair with some difficulty. He could walk on his heels and toes but could only squat about 50% and could go no further. Range of motion of his lumbar spine was limited to about 75% with flexion, but there was good lateral flexion on both ides. With extension of the back he did complain of pain in his buttock and up his back. Range of motion of the shoulders and neck appeared normal. There was some spasm of the lumbar muscles."

Dr. Motto concluded his report by stating that he had requested that Nowak have Dr. Cerullo forward him a letter stating his exact diagnosis and his reason why he feels Nowak should seek another profession.

At the hearing, Dr. Motto testified as follows: Dr. Motto stated that he was unable to conclude whether Nowak was disabled from his job as a paramedic or whether there is a causal relationship between Nowak's October 31, 1994, accident and his present physical condition. He stated there are "apparent discrepancies" between the findings contained in the ...


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