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Thigpen v. Retirement Board of Firemen's Annuity and Benefit Fund of Chicago

November 28, 2000

CLIFTON THIGPEN, PLAINTIFF-APPELLEE,
v.
RETIREMENT BOARD OF FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 98 CH 17882 The Honorable Dorothy K. Kinnaird, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Not Released For Publication.

CLIFTON THIGPEN, PLAINTIFF-APPELLEE,
v.
RETIREMENT BOARD OF FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County No. 98 CH 17882 The Honorable Dorothy K. Kinnaird, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Plaintiff, Clifton Thigpen, sought administrative relief from a decision of the Retirement Board of Firemen's Annuity and Benefit Fund of Chicago (the Board) denying his application for duty disability benefits under the Illinois Pension Code (40 ILCS 5/6-101 et seq. (West 1996)). The circuit court reversed the Board's decision and the Board now appeals from the judgment. The issue presented for review is whether the trial court erred in finding that the decision of the Board denying Thigpen's application for duty disability benefits was against the manifest weight of the evidence.

 We affirm.

BACKGROUND

Clifton Thigpen became a firefighter for the Chicago fire department in October of 1978. On February 22, 1995, he slipped and fell from the sixth rung of a wooden ladder (approximately four to six feet) while polishing a brass pole located at his firehouse. Polishing the brass pole was one of his assigned duties as a firefighter. He landed on his back and right elbow. His fall was witnessed by Lieutenant Donald Pugh and firefighter Donald Robinson, the firefighter holding the ladder. Following the fall, Thigpen was transported via ambulance to Little Company of Mary Hospital for medical treatment. According to the emergency room physician's report, "moderately severe pain to olecranon process of the right elbow" was noted and "moderate right paralumbar tenderness" was found in his back. The report also indicated that he refused pain medication at that time. Thigpen was released the same day with pain medication and was instructed to return if his pain worsened.

Shortly after Thigpen's release, he was evaluated by Dr. Steven Mather, his primary care physician, of the Parkview Orthopaedic Group, S.C. Dr. Mather's March 16, 1995, letter to Dr. Hugh Russell, medical director of the Chicago fire department, provided: "On physical examination [Thigpen] is quite tender in the lumbosacral junction. *** We will get him into physical therapy for a quicker return to work. *** At the next visit I think he should be able to return to work." In a letter dated April 20, 1995, Dr. Mather indicated to Dr. Russell: "We will get an epidural steroid and follow this with a 2nd one 2 weeks later. We will see him back 2 weeks after his epidural steroids and will continue the therapy for now. He is currently off work until further notice."

After a June of 1995 examination, Dr. Mather recommended two epidural steroid injections two weeks apart for Thigpen. In July of 1995, Dr. Mather wrote to Dr. Russell: "His back is feeling better. *** We will get him into physical therapy for strengthening and conditioning and see him back in 4 weeks at which time our goal would be to return him to unrestricted duty." Also in July of 1995, Thigpen participated in a functional capacity evaluation (FCE) conducted by physical therapist Kathy Ruggio of the CAREMARK Center for Industrial Rehabilitation. Ruggio's report stated:

"A firefighter is considered to be in the Very Heavy work category which is a lift of over 100# on an occasional basis. It is apparent that the client is unable to perform his pre-injury job demands at this time.

***

It appears that the client would benefit from a work hardening program in order to increase functional capabilities to those of his job demands. It is recommended that the client participate in a 4-6 week program with emphasis on general reconditioning, low back strengthening, and progressive functional tasks."

In a letter written by Dr. Mather in August 1995, he indicated to Dr. Russell that Thigpen's back was "starting to bother him again" and recommended "facet injections at L5-S1" and another visit from Thigpen two weeks after the injections. In September of 1995, Dr. Mather noted about Thigpen's progress:

"Persistent complaints of low back pain, without objective findings. We will try going back to work as of tomorrow night, 9-21-95. If his symptoms change, he will see us back."

Following the February 22, 1995, accident, Thigpen was on medical "lay up" until October of 1995. The lay up period in 1995 was not Thigpen's first lay up experience. He had been on fire department lay up from December of 1979 to June of 1980 for a nonduty car accident in which he sustained injuries to his back. In October of 1982, he was on lay up for another non duty car accident that also caused back injuries. In 1984, he was, again, laid up for 36 days for treatment of a nonduty acute lumbar radiculopathy/cervical strain.

In October of 1995, at his request, Thigpen returned to work as a fire inspector, not as a firefighter. He remained a fire inspector until April of 1997 when, according to him, his back pain increased to the point that he could no longer continue to work. In April of 1997, he was placed on lay up with the applicable benefits.

Dr. Robert Gettleman prescribed physical therapy, epidural shots, and facet shots for Thigpen's back pain between July and September of 1997. In October of 1997, Dr. Gettleman ordered a bone scan of Thigpen's back and "if they are negative he may then return to his usual occupational duties." The record indicates that "the three phases of the bone scan were negative."

In February of 1998, Thigpen made an application for duty disability benefits, stating that he was "no longer physically capable of performing [his] duties as a firefighter due to the accident and injury of February 22, 1995." Thigpen has not received any salary or benefits since February of 1998.

The Board began its hearings on Thigpen's application for duty disability benefits in March of 1998. While his application for duty disability benefits was pending, Thigpen applied for ordinary disability benefits, under article 6, section 152, of the Illinois Pension Code, in January of 1999. 40 ILCS 5/6-152 (West 1996). The record indicates that the Board refused to hear his application for ordinary benefits because the matter regarding duty disability benefits was before the circuit court for review.

The exhibits presented to the Board during Thigpen's duty disability hearing included: Thigpen's February 22, 1995, emergency room report; the Chicago fire department's report of Thigpen's injury; Thigpen's duty disability benefit application and supporting statement; Thigpen's lay up summary; Dr. Mather's diagnostic evaluations and letters to the Chicago fire department's medical director; Dr. Ike Arene's letter to the Board; Dr. Gettleman's letters to the Board's physician and consultant, Dr. George Motto and Dr. Arene; Dr. Motto's letter to the Board; Dr. Motto's curriculum vitae; reports regarding Thigpen's nonduty injuries and hospitalizations; medical reports regarding Thigpen's epidural injections, bone scan, and X-rays; Thigpen's work capacities assessment; three FCE reports; and the testimony of Pugh, Robinson, Rios, Dr. Motto, and Thigpen.

The record indicates that when a firefighter requests duty disability benefits, the Board physician and consultant examines the applicant. Dr. Motto examined Thigpen in March of 1998. Dr. Motto's March 1998 letter to the Board indicated:

"The applicant was an alert cooperative stated age appearing man who walked with a brace, very stiff spined and hesitantly, very slowly with a very steady gait. He had marked difficulty both getting into and getting out of a chair and was in obvious physical discomfort performing those activities. Range of motion of the back was markedly decreased with spasm of the muscles. Comment: Clifton Thigpen is a 48 year old man who relates that since February 22, 1995, when he fell flat on his back, injuring his back, he has had progressive difficulties with pain in his back and radiation to his legs and he has been unable to work."

At the request of Thigpen's attorney, Dr. Gettleman prepared a letter addressed to Dr. Motto in April 1998, which noted:

"As far as whether or not Mr. Thigpen's problems relate directly to his injury, I do not feel that I can state this to a reasonable degree of medical certainty. Regarding his ability to return to work, in cases such as this I generally have the patient undergo a functional capacity evaluation and tend to abide by that report."

Dr. Arene wrote a letter to Dr. Motto in April of 1998 stating: "Upon review of [Thigpen's] chart, there is no evidence that his medical condition is the result of any trauma other than the one he suffered on February 22, 1995. *** Mr. Thigpen cannot perform as a [sic] active firefighter anytime in the future."

Dr. Motto requested that Thigpen participate in a FCE in order to assess Thigpen's physical capabilities and ability to return to work as a firefighter. A FCE was conducted by occupational therapist Phil Rios in June of 1998. Rios' report indicated:

"No recommendations can be made at this time due to positive testing for non-exertion of maximum effort and inappropriate illness behavior. However, due to history of physical therapy and pharmacological interventions without noted progress over the past 3½ years and the findings of this evaluation, Mr. Thigpen's functional capabilities and pain behaviors are highly suspect." Another FCE was conducted by John Comerouski, a physical therapist, in September of 1998 because as Dr. Motto indicated, there was a problem with the initial FCE "as far as consistency of performance."

Comerouski's evaluation indicated that Thigpen "demonstrated work tolerance at the light physical demand level without frequent lifting tolerance. This falls well short of the job requirements needed to perform the job of a firefighter for the Chicago Fire department." Comerouski concluded that ...


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