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

August 19, 2002

ROBERT LUCHESI, PLAINTIFF-APPELLEE,
v.
RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Richard A. Siebel, Judge Presiding

The opinion of the court was delivered by: Justice McNULTY

UNPUBLISHED

The Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago denied Robert Luchesi's application for duty disability benefits because he failed to have physical therapy following a shoulder injury. On administrative review the trial court reversed the board's decision, finding that no law made firefighter's benefits contingent on receiving medical treatment. The board, on appeal, claims that Luchesi's failure to perform physical therapy constitutes an intervening cause breaking the causal connection between the shoulder injury and the disability.

We reject the board's argument because no evidence supports the conclusion that Luchesi would not be disabled if he had performed all prescribed physical therapy. As the injury remains a cause of Luchesi's disability, the board improperly denied Luchesi's application for benefits. We affirm the trial court's judgment reversing the board's decision.

On March 30, 1998, the Chicago fire department took a fire truck out of service when it broke down. Luchesi and another firefighter tried to move a ladder from that fire truck to a functioning fire truck that needed a ladder. Luchesi needed to step backwards with the ladder. As he did so he fell backwards over an object another firefighter left on the floor. An ambulance took Luchesi to a nearby hospital. The fire station's log has a notation that Luchesi "fell on his tailbone." The log also reflected that doctors at the hospital found that Luchesi suffered "lumbar & shoulder contusion."

The doctor treating Luchesi referred him to physical therapy. When the shoulder failed to improve after months of physical therapy, the doctor ordered a magnetic resonance imaging (MRI) test. The radiologist reported no remarkable results from the MRI. Luchesi's treating physician reported "mild progress" from the physical therapy, but with significant limitations. The doctor prescribed injections to reduce the pain.

Despite Luchesi's continuing efforts at physical therapy, his shoulder did not heal. In October 1998 his doctor referred him to an orthopedic surgeon. The surgeon examined Luchesi, reviewed the MRI and X rays, and recommended an arthroscopy. When the surgeon operated in January 1999 he found a partial tear of the rotator cuff, an anterior labrum tear, and a slap lesion. The surgeon performed debridements of both tears, a decompression, and a resection.

Luchesi began a new course of physical therapy following the surgery, but he attended only three sessions. Although the surgeon prescribed an extended course of physical therapy, Luchesi refused any further treatment. The fire department terminated Luchesi's employment on March 12, 1999, because Luchesi missed medical appointments.

On April 1, 1999, Luchesi applied for duty disability benefits pursuant to section 6-151 of the Illinois Pension Code (the Code) (40 ILCS 5/6-161 (West 1998)). Dr. George Motto, a physician for the board, examined Luchesi.

The board held a hearing to consider the application. Luchesi testified that in the accident on March 30, 1998, he landed on his back and shoulder and he heard his shoulder pop. He had no previous problems with his shoulder.

The board presented a summary of the days Luchesi missed work due to health problems. The records showed that the fire department hired Luchesi in February 1980. Over the next 18 years Luchesi missed a total of 172 days for a variety of illnesses and injuries, none involving the shoulders. A board member, James Joyce, used the records for questioning Luchesi. Joyce found that Luchesi lost a year following the March 1998 injury for a total of more than 520 days off for health reasons in 19 years with the department. Joyce said:

"It looks like you average one month a year off work. I find that very unusual.

Then when you get down to your injury it[']s reported as something to your lower back and then it comes out it is your shoulder and you started rehab but you quit rehab.

And there is a lot of inconsistencies. Very difficult to follow your case."

Two of Luchesi's co-workers corroborated his testimony about the accident, but they admitted that they did not see exactly how Luchesi landed. They agreed that Luchesi had not previously complained of inability to do any of the work, and they knew of no prior shoulder problems.

Dr. Motto testified that the present condition of Luchesi's shoulder prevented him from performing the duties of a firefighter. He found that atrophy, due to the lack of physical therapy following the operation, "would contribute" to the disabled condition of the shoulder. Motto said that Luchesi "obviously had a serious injury to his *** shoulder," and "that injury was operated upon."

On cross-examination Luchesi's attorney specifically asked whether Motto found that Luchesi's disability resulted solely from the lack of physical therapy. Motto answered:

"No, I am not saying that. What I am saying is that I can not make a proper determination as to his level of [f]unctional [c]apacity; what it would have been if he had had the rehabilitation."

Motto also admitted that he saw no evidence of any incident other than the accident on March 30, 1998, that would have caused the shoulder injury. Counsel asked whether the present disability was related to the March 1998 accident. Motto said:

"[H]e does have the shoulder injury. *** But his condition today is as much a result of the shoulder injury as the therapy for that injury or the absence thereof.

***

*** I can't say what therapy would have done until I see the end result of therapy.

***

*** [T]he surgery was for the shoulder injury. The therapy would have been ...


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