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Martino v. Police Pension Board of the City of Des Plaines

June 14, 2002

MARK MARTINO, PLAINTIFF-APPELLEE,
v.
POLICE PENSION BOARD OF THE CITY OF DES PLAINES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 00 CH 6673 Honorable Bernetta Bush, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

The Police Pension Board of the City of Des Plaines (the Board) appeals the order of the circuit court reversing the Board's order terminating the disability pension of plaintiff, Mark Martino. The Board also appeals the order of the circuit court awarding prejudgment interest on plaintiff's pension award. On appeal, the Board argues that plaintiff is no longer disabled for purposes of receiving a disability pension, as evidenced by the fact that plaintiff currently works full-time for another police department. We affirm.

The relevant facts are undisputed. Plaintiff became a police officer in the Des Plaines police department in January 1996. A few months later, plaintiff ruptured two disks in his lower back and developed a symptom called foot drop that prevents him from running. Plaintiff applied for a not-on-duty disability pension pursuant to section 3-114.2 of the Illinois Pension Code (40 ILCS 5/3-114.2 (West 1996)).

On July 9, 1996, the Board entered an order granting plaintiff his disability pension in the amount of 50% of his salary as a police officer. In its order, the Board made the following findings:

"(2) [Plaintiff] suffers from weakness of the lower extremities related to a decompressive laminectomy of the spine, and neurogenic bladder and bowel, and a right foot drop requiring a brace and wheelchair. He is currently confined to Marianjoy Rehabilitation Hospital for rehabilitation. These conditions prevent him from performing the duties of a police officer because of the lack of ambulatory ability.

(3) Doctors Steiner, Craig and Uteg, three practicing physicians selected by the Board, have signed certificates of disability, essentially following the Board's findings in paragraph (2) above." In December 1996, the Des Plaines police department terminated plaintiff because of his physical disability.

In December 1998, plaintiff applied for a position as a full-time police officer in Lake Villa, a municipality with a population of about 2,300. Lake Villa hired plaintiff effective June 1, 1999.

After learning that plaintiff was working full-time as a police officer for Lake Villa, the Board ordered plaintiff to show cause why his pension should not be revoked. During the show cause hearing, plaintiff introduced into evidence two physician's certificates. The first certificate was from Doctor Khan, dated October 27, 1997. In the October 1997 certificate of disability, Doctor Khan stated:

"[Plaintiff] has right foot drop as a result of spinal stenosis and herniated disk. [Plaintiff] has difficulty running and wears a brace on his right leg."

The second certificate was from Doctor McNaughton dated July 23, 1999. In the July 1999 certificate of disability, Doctor McNaughton stated:

"[Plaintiff] has right foot drop from right pernial nerve palsy that occurred as a complication of previous spinal stenosis and herniated discs. He cannot run at any speed or distance due to his right foot brace. His injury and disability is permanent."

The Board presented no contrary medical evidence indicating that plaintiff was not disabled.

Plaintiff testified at the hearing as follows:

"Q. Would you please describe to the members of the Board what, if any, limitations you have upon your physical well-being?

A. I have a dropped--I have to wear a brace on my right leg. When I remove the brace, my foot--I cannot flex it forward and back. It just drops and hangs. So the brace enables my leg to stay in a natural position where I'm able to walk.

Q. What physical limitations are on you because of your situation?

A. Well, obviously, I can't run long distances. I could never get out and run a mile and a half or I couldn't go for a jog. I mean I just can't run.

Q. Did you receive a position with the Lake Villa police department?

A. Yes, sir, I did.

Q. Are you currently ...


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