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Wilfert v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago

December 22, 2000

KENNETH WILFERT,
PLAINTIFF-APPELLANT,
V.
RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT FUND OF CHICAGO, AND THE FOLLOWING MEMBERS OF THAT BOARD, AS MEMBERS THEREOF: JOSEPH F. QUINN, PRESIDENT AND TRUSTEE, WILLIAM J. WILKINSON, TRUSTEE, NORMAN S. HOLLAND, SECRETARY AND TRUSTEE, JAMES F. NOLAN, TRUSTEE, PHOEBE S. SELDEN, CITY COMPTROLLER AND EX-OFFICIO TRUSTEE, JAMES J. LASKI, CITY CLERK AND EX-OFFICIO TRUSTEE, MIRIAM SANTOS, CITY TREASURER AND EX-OFFICIO TRUSTEE, JAMES T. JOYCE, DEPUTY FIRE COMMISSIONER, VICE-PRESIDENT AND TRUSTEE, AND BARBARA A. LUMPKIN, FORMER CITY COMPTROLLER AND EX-OFFICIO TRUSTEE,
DEFENDANTS-APPELLEES.



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

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN K. MADDEN, JUDGE PRESIDING.

Plaintiff Kenneth Wilfert appeals an order of the circuit court of Cook County denying his petition for administrative review of the decision by the defendant Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board) to terminate Wilfert's duty disability benefits. This case is related to Wilfert v. Retirement Bd. of Firemen's Annuity & Ben. Fund of Chicago, 263 Ill. App. 3d 539, 640 N.E.2d 1246 (1994), in which this court held that the Board erred in failing to consider the injury Wilfert sustained during "work hardening" when it denied him duty disability benefits. Wilfert, a paramedic, was first injured when an automobile struck his ambulance.

The record on appeal discloses that on December 17, 1997, the Board commenced a hearing pursuant to section 6-153 of the Illinois Pension Code (40 ILCS 5/6-153 (West 1996)) (Code) to decide whether Wilfert's duty disability payments should be discontinued.

Dr. George Motto, a physician and consultant for the Board since 1973, testified that once an applicant is granted benefits, he or she is asked to return periodically for re-examination at the discretion of the Board. Dr. Motto testified that he saw Wilfert in June 1997 and believed that Wilfert should have a Functional Capacity Evaluation (FCE) and possibly a second opinion.

The FCE conducted on August 17, 1997, states that Wilfert:

"tested out at the medium-heavy physical demand level for work tolerance with a maximum lifting ability of 70 lb from floor to knuckle, 60 lb from knuckle to shoulder and 40 lb from shoulder to overhead levels with complaints of bilateral trapezius muscle tightness and cramping sensation in right hand dorsal web space between thumb and index finger with cumulative lifting. He also demonstrated the ability to simulate use of stair chair by pulling up and lowering 111 lb up and down one flight of stairs without assistance. This client's job as a paramedic may require him to lift over 100 lb at various levels in various conditions. Therefore, due to decreased lift capacity, he was unable to meet job requirements. A full duty work recommendation cannot be made at this time."

The FCE also states that Wilfert "put forth a maximum physical test effort." The FCE notes that "the position of paramedic rates at the very heavy physical demand level for work." The FCE later shows a table of "Physical Characteristics of Work" which rates "Medium Heavy" below "Heavy" and "Very Heavy."

The FCE recommended Wilfert have three to four weeks of physical therapy, followed by a work hardening program of two to three weeks. The FCE stated that the prognosis for a duty work release recommendation later was "good." Based on the FCE, Dr. Motto believed that Wilfert should have work hardening "because there didn't seem to be a specific problem and because he was deconditioned."

The record contains a "Discharge Note" from the HealthSouth Center for Physical Therapy & Industrial Rehabilitation, which states that Wilfert had "attended 3 P.T. visits." Initially, Wilfert "was performing the exercise with more vigor than needed"; on his second visit, Wilfert reported "feeling like he just re-injured it for the very first time in 1989." Wilfert was discharged due to lack of progress, with the Discharge Note stating that "P.T. is not indicated at this time." The Discharge Note stated that Dr. Motto would be notified. At the hearing, Dr. Motto testified that Wilfert tried work hardening, but it "couldn't be completed."

Dr. Motto testified that Wilfert was then sent to Dr. James Ryan, a Consultant in Orthopedic Surgery, for a second opinion. Dr. Ryan dictated a report which concludes as follows:

"Basically, aside from [Wilfert's] complaints and pain behavior, I could not find anything clear cut of a neurologic nature, and I noticed previous physicians have had the same problem. His EMG of 7/11/94 was read and was normal. On the basis of my physical examination, which was negative, I feel that he is not disabled and may return to full duties after a period of work conditioning, because he has been off from work for so long. There is no impairment or disability."

Dr. Ryan's report details the examination of Wilfert's left shoulder, including tables showing the active and passive ranges of motion. Dr. Ryan's report does not contain any description of any test requiring Wilfert to lift weight.

Dr. Motto testified that he also received a letter from Dr. Steven M. Zak, regarding a follow-up examination conducted on November 21, 1997. Dr. Zak wrote that while Wilfert had improved since October, he was "not yet back to his baseline." Wilfert was still taking Ibuprofen, Flexeril and Ultram. Dr. Zak opined that Wilfert had "[c]hronic left- sided cervical polyradiculopathy with possible exacerbation by excessive stretching at physical therapy" and "[p]ossible left supraspinatus tendonitis."

Dr. Zak recommended that Wilfert resume physical therapy at the HealthSouth. Dr. Zak opined that therapy should be limited to heat, ultrasound and massage, followed by gentle stretching and possible cervical traction if tolerated. Dr. Zak opined that while the possibility of work hardening could be addressed at a later time, the FCE results showed he was not neurologically able to return to work as a paramedic. Dr. Zak also noted that if Wilfert's symptoms persisted or worsened, Wilfert would need a follow-up EMG and nerve conduction studies.

At the hearing, Dr. Motto testified that Dr. Zak's letter "had some different recommendations" from those of Dr. Ryan.

Dr. Motto recommended that Wilfert have work hardening under the direction of Dr. Ryan. Dr. Motto acknowledged that Dr. Zak is a board certified neurologist whereas Dr. Ryan is an orthopaedist, but opined that an orthopedic surgeon is highly qualified to evaluate neurologic problems of the musculoskeletal system. Dr. Motto testified that he believed Dr. Zak's opinion was based more on the FCE than any of the neurological findings.

Wilfert testified that he understood that he was receiving duty disability benefits due to a neurological injury that prevented him from lifting heavy weights and grasping properly. Wilfert did not think he could serve as a paramedic in his present condition, but was willing to try therapy.

The Board voted to send Wilfert into a work hardening program and that Dr. Motto should consult with Drs. Zak and Ryan regarding the appropriate course of treatment.

On January 21, 1998, Dr. Motto sent a letter to the Board, stating that he had contacted Dr. Zak, whose only input was that Wilfert should have three to four weeks of physical therapy prior to entering a work hardening program. Dr. Motto also wrote that he had contacted Dr. Ryan, who agreed to prescribe the therapy, then reevaluate Wilfert prior to a work hardening regime.

Dr. Zak examined Wilfert on January 23, 1998. A letter from Dr. Zak to Dr. Hugh Russell of the Chicago Fire Department stated that Wilfert's symptoms had not changed significantly. Dr. Zak's assessment of Wilfert remained largely the same, but added that it was "imperative" that Wilfert have a follow-up EMG and nerve conduction study to ensure he did not have active denervation in the cervical roots or an evolving left carpal tunnel syndrome.

The record contains Wilfert's Discharge Summary from NovaCare Outpatient Rehabilitation, which states that Wilfert had nine visits between February 2-20, 1998. The report characterizes Wilfert's compliance as "Good," but notes as part of the subjective evaluation that his symptoms worsened with exercise. The final assessment was that there was little or no improvement and that Wilfert's progress was limited by subjective complaints. The conclusion was that further physical therapy "would not significantly improve his objective measurements secondary to limiting behavior."

On March 3, 1998, Dr. Ryan examined Wilfert and wrote Dr. Motto that there was no evidence of a polyradiculopathy. Dr. Ryan concluded that Wilfert could not respond to any further therapy and "already had a work conditioning program." Dr. Ryan did not recommend another program for Wilfert because "most of his problems are functional and consist of pain and exaggeration." Dr. Ryan wrote that Wilfert was not disabled and should be able to work his regular job without restrictions.

On Wednesday, April 15, 1998, the Board resumed the hearing. Wilfert's counsel sought a continuance, stating that he did not receive materials from the Board, including Dr. Ryan's report, until the late afternoon of the previous Friday. Board attorney Lawrence Krulewich did not dispute this, but recommended, based on Dr. Ryan's report, that Wilfert's benefits be suspended subject to a decision on the merits. Wilfert's counsel objected. The Board granted the continuance without suspending Wilfert's benefits.

On April 17, 1998, Dr. Zak wrote Dr. Russell regarding a follow-up examination of Wilfert, noting that the physical therapy ended without any definite improvement and that there was no follow-up EMG and nerve conduction study. Dr. Zak repeated his assessment of "[c]hronic left- sided cervical polyradiculopathy with possible exacerbation by excessive stretching at physical therapy" and "[p]ossible left supraspinatus tendonitis." Dr. Zak again noted that based on ...


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