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Wade v. City of North Chicago Police Pension Board

August 3, 2005

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

On December 3, 2004, this court filed an opinion in the above- entitled case. See 353 Ill. App. 3d 852 (2004). In that opinion, we addressed whether defendant, the City of North Chicago Police Pension Board (the Board), wrongly denied plaintiff, Lawrence Wade, 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 the Board selected to examine plaintiff, did not certify plaintiff as disabled pursuant to section 3--115 of the Illinois Pension Code (Pension Code) (40 ILCS 5/3- -115 (West 2002)). Plaintiff argued that (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 found that the Board correctly interpreted section 3--115 and properly denied plaintiff's application for disability pension benefits, and we affirmed the Board's decision on this basis only. Compare Coyne v. Milan Police Pension Board, 347 Ill. App. 3d 713, 727-30 (2004), with Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, 338 Ill. App. 3d 490, 495 (2003).

Subsequently, plaintiff petitioned our supreme court for leave to appeal, which the supreme court denied. Wade v. City of North Chicago Police Pension Board, No. 99806 (May 2005). However, it entered a supervisory order directing this court to vacate our judgment, in light of Turcol v. Pension Board of Trustees of Matteson Police Pension Fund, 214 Ill. 2d 521 (2005), to resolve the issue of whether the Board's determination that plaintiff had not proven his disability was against the manifest weight of the evidence. Pursuant to the supreme court's supervisory order, we find that the Board's determination that plaintiff had not proven his disability was contrary to the manifest weight of the evidence. However, we further conclude that, because the Board did not receive three certificates of plaintiff's disability, he was properly denied pension benefits under section 3--115.

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 his right knee when he tumbled down an embankment while escorting a prisoner. Plaintiff sought immediate medical attention at Lake Forest Hospital, where he reported feeling a "pop" when he fell and experiencing pain and knee swelling. Dr. Chris Pavlatos, an orthopedic surgeon, performed orthoscopic surgery on plaintiff on May 17, 2002, after an MRI disclosed what Dr. Pavlatos believed was a new tear in the medial and lateral meniscus. On May 29, 2002, Dr. Pavlatos released plaintiff for "light duty work" and stated that plaintiff would "need to switch to a permanent sit down job with no running activities." This restriction was reiterated by Dr. Pavlatos after he examined plaintiff again on August 8, 2002.

On September 4, 2002, Dr. Mark Levin, an orthopedic surgeon, conducted an examination of plaintiff. His report indicated that plaintiff had chronic and long-standing knee problems that predated the April 20, 2002, injury. Dr. Levin noted that he examined plaintiff's MRI scan from April 24, 2002, which showed arthritic changes of the knee as well as "findings consistent with a medial meniscal tear." After reviewing plaintiff's history, radiographic studies, and medical records and performing a physical examination, Dr. Levin opined that plaintiff appeared to have tri-compartment arthritis of the right knee, which was chronic and long-standing and predated the injury from April 20, 2002. He further opined that plaintiff did not have the ability to return to work as a patrol officer because of the underlying arthritis of the right knee.

On September 23, 2002, plaintiff was advised that there were no permanent sedentary positions available for a police officer and his options were to retire or to apply for a disability pension. 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 2002)) or a not-on- duty (see 40 ILCS 5/3--114.2 (West 2002)) disability pension under the Pension Code.

Pursuant to statutory mandate (see 40 ILCS 5/3--115 (West 2002)), 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.

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 assigned 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, which interpreted section 3--115 of the Pension 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 denied plaintiff a disability pension because it did not receive three certificates of disability. See Rizzo, 338 Ill. App. 3d at 495.

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.

ANALYSIS

1. Manifest Weight of the Evidence

As directed by the supreme court, we now first address the Board's determination that plaintiff had not proven his disability.

On appeal, we review the decision of the administrative agency, not that of the trial court. Stec v. Board of Trustees of the Oak Park Police Pension Fund, 355 Ill. App. 3d 974, 978-79 (2005). An administrative agency's findings of fact are deemed prima facie true and correct and may be set aside only if they are against the manifest weight of the evidence. 735 ILCS 5/3--110 (West 2002); Daily v. Board of Trustees of the Police Pension Fund, 251 Ill. App. 3d 119, 122 (1993). "Factual findings are against the manifest weight of the evidence only where all reasonable and unbiased persons would agree it is clearly evident the administrative agency erred and should have reached the opposite conclusion." Caterpillar, Inc. v. Illinois Commerce Comm'n, 348 Ill. App. 3d 823, 828 (2004). The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify the reversal of the administrative findings. Rhoads v. Board of Trustees of the City of Calumet City Policemen's Pension Fund, 293 Ill. App. 3d 1070, 1076 (1997). Moreover, "because the weight of the evidence and the credibility of the witnesses are within the province of the [agency], there need only be some competent evidence in the record to support its findings." Iwanski v. Streamwood Police Pension Board, 232 Ill. App. 3d 180, 184 (1992). Thus, if the record contains any evidence to support the agency's decision, it should be affirmed. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).

Plaintiff claims that he was entitled to a line-of-duty disability pension pursuant to section 3--114.1 of the Pension Code (40 ILCS 5/3-- 114.1 (West 2002)). In order to be entitled to a line-of-duty disability pension, plaintiff must prove in part that (1) he was disabled as a result of an injury incurred in or resulting from the performance of an act of duty; (2) he is physically disabled; and (3) the disabling condition renders necessary his suspension from police service. 40 ILCS 5/3--114.1 (West 2002).

It is undisputed that plaintiff has pre-existing arthritis of his right knee. The dispute focuses on whether the April 20, 2002, accident caused a new tear to plaintiff's knee or whether the tear pre-existed the accident. Four of the five physicians who examined plaintiff concluded that plaintiff was disabled as of the date of the accident. Dr. Pavlatos believed that the accident caused a new tear. Dr. Levin concurred in this conclusion. Dr. Milgram on the other hand believed that any tears pre-existed the accident, and the Board found Dr. Milgram more credible, assigning more weight to his opinion. Thus, this case turns on whether the record contains any evidence to support Dr. Milgram's finding that plaintiff did not suffer a new tear to his knee when he fell down the ...


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