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Terrano v. The Retirement Board of the Policemen;s Annuity

July 20, 2000

MICHAEL TERRANO, PLAINTIFF-APPELLEE,
V.
THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, DEFENDANT-APPELLANT



The opinion of the court was delivered by: Presiding Justice Hoffman

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE ELLIS E. REID, JUDGE PRESIDING.

The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board) appeals from an order of the circuit court which, on administrative review, reversed its decision to deny the plaintiff, Michael Terrano, duty disability benefits under section 5-154 of the Illinois Pension Code (Code) (40 ILCS 5/5-154 (West 1996)). For the reasons which follow, we affirm the circuit court's order reversing the decision of the Board, but modify that order in certain respects.

On July 10, 1995, the plaintiff became a member of the Chicago police department (Department). During training exercises on August 25, 1995, the plaintiff injured his right knee, severing the anterior cruciate ligament. He was taken to a hospital for treatment and the Department placed him on medical leave. In the months which followed, the plaintiff underwent out-patient surgery and received physical therapy. Dr. Mitchell Krieger, the plaintiff's treating physician, released him to return to work in November of 1995, and the plaintiff subsequently completed his training.

While on foot patrol in June of 1996, the plaintiff experienced pain and swelling in his right knee. The Department again placed the plaintiff on medical leave and referred him back to Dr. Krieger. After examining the plaintiff, Dr. Krieger concluded that the instability and swelling of the plaintiff's knee was "a continuation of his duty-related knee injury" of the previous summer. Dr. Krieger recommended that the plaintiff undergo reconstructive surgery, which was performed by Dr. Ronald Silver on July 29, 1996.

Dr. Silver issued a report to the Department on November 26, 1996, which states, in pertinent part, as follows:

"Michael's [plaintiff] knee looks great three and one-half months status post anterior cruciate reconstruction. He has full range of motion, normal stability and good strength. At this time we will permit him to return to work as of December 2, 1996[,] and he will do some home exercises prior to his re-evaluation in two months."

The Department's records indicate that the plaintiff was to report for duty on December 3, 1996. However, on December 3, he called the Department's medical section and reported that his knee was swollen. As a consequence, the plaintiff did not report for duty and was again placed on medical leave.

The plaintiff was examined by Dr. Silver in June of 1997. In a letter to the Department dated June 24, 1997, Dr. Silver stated:

"My impression is that Michael [plaintiff] has made a good recovery from anterior cruciate reconstruction; however, he has significant discomfort when squatting or kneeling and is unable to jump or run for any significant distance. These limitations are permanent but otherwise he may continue work activities within those limitations."

On September 17, 1997, the plaintiff made application to the Board for duty disability benefits and was referred to the Board's physician, Dr. S. David Demorest, for a physical examination. Dr. Demorest examined the plaintiff on September 18, 1997, and recommended that he be "re-evaluated by orthopedic surgery to assess his status and ability to return to work."

On September 19, 1997, the plaintiff's employment with the Department was terminated for violation of medical roll procedures. At its meeting on November 25, 1997, the Board awarded the plaintiff ordinary disability benefits pursuant to section 5-155 of the Code (40 ILCS 5/5-155 (West 1996)), without prejudice to his claim for duty disability benefits. This action was taken because the plaintiff had not as yet been evaluated by an orthopedic surgeon as recommended by Dr. Demorest.

The Board referred the plaintiff to Dr. Alfred A. Akkeron who examined the plaintiff and performed an orthopedic evaluation on December 4, 1997. In a report to the Department dated the same day, Dr. Akkeron stated:

"My impression is that this patient continues to have laxity of the anterior cruciate ligament status post anterior cruciate ligament reconstruction. This is supported by a clinical evaluation and by the patient's history. Because of this particular condition, I do not feel that this patient will be able to perform the duties as an active police officer. I feel at the present time that he has reached his maximum medical improvement and will not get any further stability of the anterior cruciate ligament."

The plaintiff's application for duty disability benefits came before the Board for hearing at its regular meeting on March 11, 1998. Three witnesses testified: the plaintiff, Dr. Akkeron, and Dr. Katherine Pajak, the Department's physician. However, only the testimony ...


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