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Wade v. City of North Chicago Police Pension Board

December 3, 2004

LAWRENCE WADE, PLAINTIFF-APPELLANT,
v.
THE CITY OF NORTH CHICAGO POLICE PENSION BOARD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 03-MR-987. Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

Plaintiff, Lawrence Wade, appeals the order of the circuit court of Lake County affirming the decision of defendant, the City of North Chicago Police Pension Board (the Board), denying him a disability pension. The Board denied plaintiff a line-of-duty disability pension (see 40 ILCS 5/3--114.1 (West 2002)), in part because Dr. Milgram, one of the three doctors selected by the Board to examine plaintiff, did not certify plaintiff as disabled pursuant to section 3--115 of the Illinois Pension Code (Code) (40 ILCS 5/3--115 (West 2002)). On appeal, plaintiff argues: (1) the Board denied him a fair and impartial hearing because it relied solely on Dr. Milgram's medical report in denying him a disability pension; (2) the Board's decision was contrary to the manifest weight of the evidence; and (3) the Board improperly interpreted section 3--115 to mandate that, before a disability pension can be granted, all three examining physicians selected by the Board must certify that the applicant is disabled. We find that the Board correctly interpreted section 3--115 and properly denied plaintiff's application for disability pension benefits. Accordingly, we affirm the Board's decision on this basis.

FACTS

Plaintiff was hired as a full-time police officer by the North Chicago police department in June 1982. In 1989, plaintiff injured his right knee playing football. Dr. Roger B. Collins examined him in 1991 and again in 1992, when his knee problems continued. In August 1997, he twisted his right knee playing softball and underwent arthroscopic surgery. His knee problems continued and, in late 2001 and early 2002, he missed work for approximately eight weeks because of them. He returned to work in February 2002.

On April 20, 2002, plaintiff injured the same knee when he tumbled down an embankment while escorting a prisoner. He underwent surgery on May 17, 2002. Thereafter, on October 8, 2002, plaintiff filed an application with the Board for a disability pension. He did not specify whether he was seeking a line-of-duty (see 40 ILCS 5/3--114.1 (West 2000)) or a not-on-duty disability pension under the Code (see 40 ILCS 5/3--114.2 (West 2000)).

Pursuant to statutory mandate (see 40 ILCS 5/3--115 (West 2000)), three physicians selected by the Board, Dr. John Dwyer, Dr. Christopher Reger, and Dr. James W. Milgram, examined plaintiff. Drs. Dwyer and Reger found plaintiff to be disabled from a "work-related" injury and issued certificates of disability. Dr. Milgram found that in both of his knees plaintiff had degenerative bilateral arthritis that pre-existed any duty-related incident. Dr. Milgram did not believe that the degree of arthritis in his right knee "disabled" plaintiff from work as a police officer and felt that if plaintiff were "so motivated[,] he could return to work as a police officer at the present time without restriction." Dr. Milgram did not find plaintiff to be disabled from a work-related injury and did not issue a certificate of disability.

Plaintiff was also examined by Dr. Jay L. Levin. His report also indicates that plaintiff had chronic and long-standing knee problems that predated the April 20, 2002, injury.

At the evidentiary hearing on June 19, 2003, plaintiff's counsel indicated that plaintiff wanted the Board to consider his pension application as a duty-related claim only and that he was not seeking a not-on-duty disability pension. During the hearing, the medical reports of the Board's examining physicians and the medical records from plaintiff's treating physicians were admitted into evidence. Plaintiff did not object to the admission of these exhibits, including Dr. Milgram's medical report.

The Board denied plaintiff's application for a line-of-duty disability pension, finding that plaintiff had a pre-existing disease unrelated to the April 20, 2002, incident. In its analysis, the Board found Dr. Milgram more credible than the other physicians and afforded greater weight to his opinion. The Board also relied on Dr. Levin's report and the extensive prior medical treatment and injuries, which indicated to the Board that plaintiff's right knee condition existed prior to the work-related incident. Citing Rizzo v. Board of Trustees of The Village of Evergreen Park Police Pension Board, 338 Ill. App. 3d 490 (2003), which interpreted section 3--115 of the Code to require a board to issue a disability pension only if it receives certificates of an officer's disability from three practicing physicians selected by the board, the Board also denied plaintiff a disability pension because it did not receive three certificates of disability.

Plaintiff filed a complaint for administrative review. Following a hearing, the trial court affirmed the Board's decision, finding that because the doctors' medical reports were admitted as part of the administrative record without objection, plaintiff waived any objections to the sworn certification requirements of section 3--115. The trial court did not rule on the issues of whether the Board's decision was against the manifest weight of the evidence or legally erroneous. Rather, the trial court believed that it was bound to follow the decision in Rizzo because it was the only appellate court case in Illinois specifically deciding the section 3--115 issue. Accordingly, the court affirmed the Board's decision because the Board did not receive three certificates of disability from the examining physicians selected by the Board pursuant to section 3--115. Plaintiff timely appeals. We allowed the Hoffman Estates Police Pension Fund to file an amicus curiae brief in support of plaintiff.

ANALYSIS

We turn now to the issue of whether section 3--115 of the Code mandates that a pension board deny disability benefits unless all three examining physicians selected by the board certify that the applicant is disabled. Plaintiff and amicus curiae do not agree with Rizzo's interpretation of the statute and assert that, while a pension board must have three certificates from its selected doctors, all three certificates do not need to find the applicant disabled for the board to award a disability pension. Relying on the recent decision of Coyne v. Milan Police Pension Board, 347 Ill. App. 3d 713 (2004), plaintiff and amicus curiae contend that the statute requires three medical certificates ...


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