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Roszak v. Kankakee Firefighters' Pension Board

October 5, 2007

ANDREW ROSZAK, PLAINTIFF-APPELLANT,
v.
KANKAKEE FIREFIGHTERS' PENSION BOARD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 21st Judicial Circuit Kankakee County, Illinois No. 06-MR-14 Honorable Kendall O. Wenzelman Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

Applicant Andrew Roszack, a firefighter-paramedic employed by the Kankakee Fire Department, filed for a line of duty disability pursuant to the Illinois Pension Code (40 ILCS 5/4-110 (West 2006)), with appellee Kankakee Firefighters' Pension Board (hereinafter the Board). The Board denied his request for disability and applicant appealed to the circuit court of Kankakee County. The circuit court denied applicant's request for disability and affirmed the decision of the Board. Applicant has now appealed the circuit court's ruling, claiming that the Board's decision to deny him disability was against the manifest weight of the evidence. We reverse the decision of the circuit court and remand for further proceedings in accordance with this opinion.

FACTS

Applicant filed his application for disability pay with the Board on September 10, 2004. Two hearings were held with regard to the matter, one on February 17, 2005, and a concluding hearing on August 25, 2005. At the February 17 hearing, applicant was the only witness to take the stand. Applicant testified as follows.

Applicant was employed as a firefighter-paramedic with the Kankakee Fire Department at the time of the injury. He had been hired by the department in September 2000. His duties included responding to and mitigating emergency situations and fire inspections and investigations. On December 2, 2003, while on duty, he responded to a call and upon arrival found an elderly female patient, between 300 and 400 pounds, on the floor. He and his female partner began to lift the woman to place her on to the stretcher, but as they did so, the wheels got caught and bound up on a rug, causing the wheels not to lock into place and properly deploy. They had to juggle the woman and try and gently lower her to the ground, which they did. At this time applicant and his partner experienced some pain in their upper backs. Backup was called to help transport the woman to the hospital, and applicant then sought medical attention for his back.

The following day, December 3, 2003, applicant was examined by Dr. J. Michael Panuska, the city's occupational health/workers' compensation doctor. In January 2004 applicant saw Dr. George Charuk, who gave him pain medication and kept him on lifting limitations. Applicant then saw his family doctor, Dr. Samuel Deguzman, in March 2004 who referred him to Dr. Benjamin Goldberg. Dr. Goldberg recommended surgery to applicant as his best opportunity for getting better and returning to work. Surgery was scheduled three times between April and August 2004 but had to be repeatedly postponed due to insurance problems with workers' compensation refusing to pay for the surgery. Workers' compensation finally authorized the surgery and it was performed on August 31, 2004, by Dr. Goldberg.

Applicant testified that he had been in pain since the injury happened and he elected to get surgery so that he would have the chance to come back to work. After the surgery, he was still no better. At the time of the hearing, he had pain under his left shoulder blade, which was always present. If he was on his feet for a long period of time, the pain increased. He could not raise his left arm above his head.

On cross-examination by the Board, applicant revealed that he was 25 years old. He still loved his job and did not want to quit. As of the hearing date, he was employed as a cardiopulmonary resuscitation, or CPR, instructor at Kankakee Community College on a part-time basis, a nonphysical job. As of that date, he was not getting workers' compensation payments. A dispute then arose between applicant and the Board as to applicant's present address. The Board inquired as to the applicant's current address and the applicant responded that he did not have a current address at that time but had been staying with his mother, sister, and other family members. He listed a post office box address where he could be contacted. After much confusion and back and forth, with the Board persisting on wanting to know where the applicant was residing, applicant provided his mother's address. The hearing was adjourned after some more questions.

The hearing resumed on August 25, 2005. Since the first hearing, applicant had undergone a magnetic resonance imaging, or MRI. The first witness called in the second hearing was Dr. Panuska. He testified as follows.

Dr. Panuska first described what the MRI conducted on applicant on May 17, 2005, revealed. Namely, it indicated that there had been some surgical repair. Dr. Panuska testified that when applicant first came to see him immediately after the incident in December 2003, he never found any evidence of a shoulder injury but, rather, diagnosed him with a thoracic strain. After that Panuska referred him to another doctor and lost track of the case. Panuska testified that applicant seemed to have full range of motion at the initial exam, but now, after surgery, the longer he goes without rehabilitation the worse the injury will get. Panuska admitted that lifting a heavy patient could cause the type of injury exhibited by applicant. He also admitted on cross-examination that the thoracic area where he diagnosed applicant's strain on December 2, 2003, also covered the scapula area, which was the shoulder blade. Panuska admitted that it was not farfetched to believe that the shoulder blade had been involved from the initial time when it covers the same area as the thoracic area. Panuska concluded by testifying that while it was unlikely applicant's shoulder injury could get 100% better, he could improve over time with more therapy, but at that moment, applicant could not do his job.

Applicant was then called to the stand to continue testifying. Applicant admitted that he had not been doing any physical therapy since the latest MRI. He had last undergone physical therapy in December 2004 but had to stop due to the pain. He tried to do some home rehabilitation after the surgery, but stopped because the pain was too great. Applicant described his injury as two distinct periods: injury to surgery, and surgery to the present. Between his initial injury and the surgery, he was not having the range of motion problems he was experiencing now. He was able to get his arm above his head (albeit painfully). He always, however, had persistent pain under left shoulder and limited lifting capacity. Rehabilitation efforts made it worse. After the surgery, he had severe range of motion problems with his left arm and shoulder.

The Board then cross-examined applicant over the photo of him snorkeling on vacation in 2004 prior to the surgery. The Board produced a photo of applicant on vacation, head out of water, appearing to raise his right hand. Applicant argued that it was his right hand that was above the water in the photo, not the left. The issue was left somewhat unresolved and the photo was entered into evidence.

The Board next confronted applicant over his surgery cancellations in 2004. The Board contended that a nurse at the hospital where the surgery was to be performed had written down that workers' compensation had approved the surgery in June but that applicant did not return the nurse's call because he was out of town and cancelled surgery due to his inability to find a ride. Applicant disputed the nurse's version, saying that his lawyer and workers' compensation nurse were saying the surgery was not approved. Applicant noted that, up to the present day, the surgery bill has not been paid by workers' compensation.

The Board also cross-examined applicant on his income and net worth. After much back and forth, applicant admitted he made, on average, depending on how much his part-time job required him to work, $1,000 a month. He has $10,000 in the bank from the sale of his house.

At the hearings, various exhibits provided by the Board and applicant were admitted into evidence. Among the Board's exhibits were applicant's functional capacity evaluation of March 1, 2004, conducted at Riverside HealthCare Clinic, which indicated that he was a potentially excellent candidate for rehabilitation, but that he did not magnify his symptoms and gave full physical effort during the exam. Also entered by the Board was a letter from Dr. Goldberg on April 9, 2004, noting that an MRI revealed either a full-thickness or near-full-thickness rotator cuff tear, and that the applicant had two decisions: either to live with the injury (in which case he is at maximum medical improvement and will likely not get better) or have surgery to repair the injury (in which case he would need extensive therapy, but after six months or so could possibly resume being a fireman). Goldberg also commented that he believed applicant's current injuries were related to the accident on December 2, 2003.

Also included were reports from three doctors selected by the Board to review applicant's case. The first, by Dr. Terrence Moisan, dated December 15, 2004, stated that applicant should be able to recover after the surgery. Moisan was also "perplexed as to the relationship of his shoulder to the work injury" because the symptoms of left infrascapular pain did not seem to be related to the shoulder. Nevertheless, whatever the cause of the injury, applicant was at the time incapable of performing his duties as a firefighter. The second, by Dr. Joseph G. Thometz, dated December 16, 2004, found the applicant had left shoulder and scapular pain and was not capable of returning to his job as a firefighter. Further, the current medical condition was a result of his work-related injury from December 2, 2003, and that his current cause of disability was limited range of motion and strength for the left shoulder. The third report, from Dr. William C. Malik, dated February 4, 2005, found that applicant's current medical condition was a result of the injury suffered on December 2, 2003, and that he was disabled from full duty as a firefighter due to the failed rotator cuff surgery.

The Board issued its decision on December 14, 2005. The following "Findings of Fact" were made by the Board:

"According to Dr. Panuska, there was no initial evidence of a shoulder injury; his diagnosis was a strain of the upper back. It was also Dr. Panuska's opinion that at the time of the hearing, full recovery of Mr. Roszak is difficult to predict for three reasons:

(1) lack of aggressive post-surgery rehabilitation;

(2) the length of time from the surgery;

(3) presence of atrophy of the muscles.

According to Dr. Panuska, after his initial examination of the applicant, he recommended aggressive rehabilitative treatment, which did not occur. Dr. Panuska also testified that when he first examined the applicant, he had full range of motion in the left shoulder. On cross-examination, Dr Panuska indicated that Mr. Roszak did not avail himself to rehabilitative treatment and therapy in order to obtain maximum rehabilitation to effect recovery.

After Dr. Panuska testified, the applicant admitted that he only tried physical therapy on three occasions, but could not complete the physical therapy sessions. The applicant further testified that his last physical therapy session was December 9, 2004, about two months after he filed his application for a disability pension. The applicant also indicated that he did not begin any rehabilitation with a physical therapist at until twelve to eighteen weeks after his shoulder surgery.

Mr. Roszak stated that he cannot lift his arm above his shoulder and is always in great pain. However, his physical therapy report showed that he tolerated therapy and pain rather well. The evidence introduced at the hearing also indicated that according to Mr. Roszak's own website, [h]e was able to go snorkeling in Cancun, without a problem. Board Exhibit M shows Mr. Roszak waving to the camera while snorkeling. However, according to the applicant, he cannot identify himself in the picture.

The Pension Board selected Dr. Terrence C. Moisan to conduct an independent medical examination (IME) in this case. In his report, Dr. Moisan states that he is perplexed as to the relationship of Roszak's shoulder injury to the work injury. Dr. Moisan also indicated that the applicant will improve substantially if he would continue therapy with his treating physician, Dr. Goldberg. Dr. Moisan indicated after reviewing the MRI that there was surgical success in treating the injury. Dr. Moisan also stressed in his latest report as to the importance of the applicant undergoing further physical therapy and work hardening. According to this report, the latest MRI would not be inconsistent with Roszak's ability to return to work.

***

In a subsequent report, Dr. Thometz states that the applicant's latest MRI report did not show evidence of a recurrent or residual rotator cuff tear. Despite the lack of objective findings above, Dr. Thometz indicates that the cause of disability is limited range of motion and strength in the left shoulder. This subjective determination is based upon what the applicant told this physician.

The third physician conducting an MRI for the Pension Board was Dr. William Malik. Dr. Malik describes the applicant's condition as a failed rotator cuff surgery. In a supplemental report, Dr. Malik concludes that Roszak suffers from 'tendinopathy of the supraspinatus tendon without a discrete tear identified, surgical repair noted.' Dr. Malik concludes that Roszak is permanently disabled.

The medical documentation admitted into evidence in this case is in dispute as to what Mr. Roszak's physical condition ...


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