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Kouzoukas v. Retirement Board of the Policeman's Annuity

September 24, 2009


The opinion of the court was delivered by: Justice Burke

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.


The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (the Board) denied the application of Maria Kouzoukas (Kouzoukas) for duty disability benefits. On administrative review, the circuit court reversed the Board's decision and awarded Kouzoukas prejudgment interest. After the appellate court affirmed the circuit court's judgment (383 Ill. App. 3d 942), the Board petitioned for review by this court and we allowed the petition.

For reasons that follow, we now affirm the appellate court's judgment that the Board's decision to deny Kouzoukas' application for duty disability benefits should be set aside. However, we reverse the award of prejudgment interest.


Maria Kouzoukas became a Chicago police officer in 1995. On July 25, 2004, while on patrol, she injured her back when she attempted to move an intoxicated man off the sidewalk and he resisted. After the incident, Kouzoukas immediately sought treatment at the emergency room of Resurrection Medical Center and went on medical leave the following day. Kouzoukas returned to work on September 17, 2004, but due to recurring back pain stemming from her injury, she went back on medical leave on October 23, 2004. Over the next 14 months, Kouzoukas was able to work restricted duty for brief periods of time, but otherwise remained on medical leave due to lower-back pain. On December 15, 2005, when her medical leave was exhausted, Kouzoukas applied to the Board for duty disability benefits.

Upon application for benefits, Kouzoukas was required to be examined by the Board's physician, Dr. S. David Demorest. That occurred on December 29, 2005. Subsequently, on March 30, 2006, and April 25, 2006, the Board held hearings on Kouzoukas' application. At these hearings, Kouzoukas presented documentary evidence and witness testimony regarding her disability and the medical treatment she received since her injury in July 2004. Because our review requires us to determine whether the manifest weight of the evidence supports the Board's decision to deny Kouzoukas disability benefits (Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 505 (2007), quoting Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 534 (2006)), we set forth this evidence in detail.

The documentary evidence reveals the following. After being treated and discharged by Resurrection Medical Center on July 25, 2004, Kouzoukas was evaluated at MercyWorks Occupational Medicine Center on July 27, 2004. There she was diagnosed with acute lumbar strain, given a muscle relaxant, and told to perform certain exercises at home. MercyWorks reported to the Chicago police department that Kouzoukas would be unable to return to work for two to three weeks, but that no permanent disability was anticipated.

On August 10, 2004, Kouzoukas was evaluated by Dr. Michael Lewis, an orthopedic surgeon. His examination revealed paravertebral muscle spasm in the dorsal and lumbar spine area and his initial diagnosis was "acute dorsal and lumbar myofascitis" (inflamation of the tissue surrounding the muscle). Although Kouzoukas had suffered a back injury on two prior occasions--the first in May 2002 with 113 days medical leave taken between May 1 and September 19, 2002, and the second in June 2003 with 45 days medical leave taken between June 29 and August 12, 2003--Dr. Lewis indicated in his report that he believed Kouzoukas' current back pain was due to her recent injury and was unrelated to her previous injuries. He prescribed pain medication and ordered Kouzoukas to remain on medical leave.

Dr. Lewis saw Kouzoukas for follow-up on August 23, September 7, and September 14. On September 14, 2004, Dr. Lewis released Kouzoukas to return to work on September 17, 2004, for a restricted or "light duty" assignment. On October 12, 2004, Dr. Lewis saw Kouzoukas, who still complained of having constant and persistent back pain. Dr. Lewis noted muscle spasm in the lumbosacral spine and ordered an MRI scan for further evaluation. He recommended that Kouzoukas continue working a light duty assignment and suggested that she begin a course of physical therapy. Kouzoukas began therapy on October 15, 2004, and continued to work restricted duty until October 23, 2004, when she went back on medical leave due to increased back pain.

On October 27, 2004, the MRI scan was performed. It revealed some mild disc protrusion at L4-L5 and L5-S-1, as well as some minimal scoliosis at the lumbar joint. As a result, when Dr. Lewis saw Kouzoukas on October 28, he recommended that Kouzoukas remain off work and that she continue physical therapy.

After a November 8, 2004, examination, Dr. Lewis reported to the Chicago police department that Kouzoukas was still experiencing moderate to severe back pain that was being helped somewhat by physical therapy. Dr. Lewis released Kouzoukas to return to restricted duty on November 12, 2004, with an anticipated return to full active duty on November 29, 2004. Dr. Lewis also recommended Kouzoukas continue with physical therapy. Kouzoukas returned to work on November 11, 2004, but worked only five days before going back on medical leave.

In a report dated November 30, 2004, AthletiCo Therapy advised Dr. Lewis that Kouzoukas had attended five sessions, missed one session, and cancelled two sessions. Under the heading of "assessment" the report stated that Kouzoukas made "limited progress" with physical therapy, that she continued to complain of lower back pain, and that the radiating symptoms did not resolve. Her prognosis for recovery was listed as "fair." Although Kouzoukas was authorized to receive additional therapy, she was discharged because she failed to keep scheduled appointments or return phone calls to reschedule after November 1, 2004.

Kouzoukas went back on medical leave on November 15, 2004, and remained there until January 16, 2005. She returned to restricted duty on January 16, 2005, and worked until March 29, 2005. She then went back on medical leave due to recurring back pain.

On April 5, 2005, Kouzoukas's general physician sent her for an MRI scan of her cervical spine. The MRI showed no abnormality or infirmity. Kouzoukas then consulted with Dr. Gary Magee on May 2, 2005. He reviewed Kouzoukas' MRI scans and confirmed that they showed no abnormality except for a slight stenosis at the L4-L5 level of the spine. Because Kouzoukas reported that she had not obtained relief with physical therapy or oral medication, Dr. Magee recommended epidural injections.

On May 19, 2005, Kouzoukas returned to Dr. Lewis, informing him that her pain had returned in March 2005. Dr. Lewis noted severe muscle spasm and reduced forward flexion. He, too, recommended that Kouzoukas receive lumbar steroid injections. As a result, Kouzoukas received an injection on June 7, 2005. However, after this initial injection, the treatment was discontinued because Kouzoukas reported that she had a headache and increased pain radiating down her leg as a result of the injection. Dr. Lewis then referred Kouzoukas to a spine surgery specialist for an evaluation for possible surgical intervention.

In July 2005, Kouzoukas saw Dr. Spencer, a spine surgery specialist. After his initial examination, Dr. Spencer's diagnosis was "chronic low back pain and right-sided sciatica." He opined that Kouzoukas' back pain was "aggravating, but not incapacitating." However, he sent Kouzoukas for a new MRI scan of her spine and recommended that she continue her light duty work assignment.

On August 8, 2005, Kouzoukas returned to Dr. Spencer's office. He advised Kouzoukas that her MRI was "totally normal" and stated that, in his view, there was nothing wrong with her back. He recommended that she see a gynecologist or internist to determine the source of her pain. Dr. Spencer released Kouzoukas to return to work with a temporary 20-pound lifting limit. In his report to Chicago police department, Dr. Spencer stated, "I believe that her pain is not coming from an identifiable injury in her lumbar spine based on the pristine appearance on the MRI scan."

In September 2005, Kouzoukas began treatment with Dr. Yapor, a neurosurgeon at Northwestern Memorial Hospital. He sent Kouzoukas to have EMG/NCV testing to determine whether she had neurological damage. He also ordered a CT scan and X-rays of the sacroiliac (SI) joint. The testing revealed no neurological damage or other pathology. Unable to locate the source of Kouzoukas' pain, Dr. Yapor suggested that Kouzoukas start a pain management program with Dr. Konowitz for her "chronic low back pain syndrome." Accordingly, Kouzoukas saw Dr. Konowitz for an evaluation on November 17, 2005. Dr. Konowitz initially recommended that Kouzoukas see her gastroenterologist for treatment of her gastric infection.

In a report to Chicago police department dated December 13, 2005, Dr. Yapor opined that Kouzoukas was "permanently disabled as a police officer" because she could not perform the duties of an active police officer. On December 19, after receiving results of Kouzoukas' cervical spine MRI which revealed no pathology, Dr. Yapor determined that, as a surgeon, he could do nothing to help Kouzoukas and discharged her from his care.

On December 20, 2005, Dr. Konowitz gave Kouzoukas an injection directed at her SI joint, but she reported no significant improvement. Oral medications were given for pain management, including Protonix, Skelaxin, and Mobic. Once again, Kouzoukas was referred for physical therapy.

Kouzoukas was seen by Integrity Physical Therapy for an initial evaluation on January 22, 2006. The evaluation form described Kouzoukas' functional capabilities as follows:

"The patient is currently unable to work due to injury. *** She reports pain with sitting, standing, and driving in her car for more than 5-10 minutes."

Progress notes from Integrity indicate that Kouzoukas was "totally noncompliant" with therapy--she left her first appointment early because she "had to baby-sit" and in March 2006 she missed her appointments altogether. When Kouzoukas called to cancel her March appointments, she explained that she was "going out of town."

Dr. Konowitz, in a progress letter to Dr. Yapor dated March 23, 2006, stated:

"Patient requested clarification on work disability. Her severe SI joint pain is provoked with prolonged sitting and prolonged standing approximately 45 minutes. This difficulty in completing her work as a police officer is the issue relating to her disability. Due to the significant subjective pain complaints over her SI joint and pain scores of 8 and 10, I am unable to return her to duty."

After receiving this letter, Dr. Yapor sent a letter on April 17, 2006, to Kouzoukas' attorney, Mr. Geiger, stating the following:

"Based on my evaluation of Ms. Kouzoukas, as well as Dr. Konowitz's last report, she is to limit her sitting, standing and continuous walking to no more than 30-45 minutes at any one time. She is not to wear her gun belt, indefinitely."

In addition to the documentary evidence, witness testimony was presented at the hearings before the Board. On March 30, 2006, when the Board held its first hearing on Kouzoukas' application for duty disability benefits, Kouzoukas testified that she filed the claim for duty disability benefits because her July 2004 injury prevented her from returning to the Chicago police department as a police officer. She then called her treating physician, Dr. Yapor, to testify in support of her claim.

Dr. Yapor testified that he is a neurological surgeon and that he first saw Kouzoukas in 2005, after she was referred to him by the Information on Demand Unit of the Chicago police department. Dr. Yapor admitted that Kouzoukas' MRI scans and X-rays revealed nothing of "surgical significance." Nonetheless, he testified that there was objective evidence of pain--his physical examination which revealed localized tenderness in her lower back around the right sacroiliac (SI) joint. He stated further that, based on his observations, he believed Kouzoukas suffered from lower back pain which generated from her SI joint and that her pain caused her to have difficulty sitting or standing for any period of time. Dr. Yapor testified that he did not believe that Kouzoukas was malingering or faking her pain. He explained that he discontinued his care of Kouzoukas in December 2005 because she was not a surgical candidate, but that he referred her to Dr. Konowitz for pain management.

Dr. Yapor was asked whether he believed Kouzoukas could work as a Chicago police officer. He responded "no" and explained his reasons:

"Several factors. One is her physical condition and the fact that she does get exacerbations, and number two is her medications. From a physical factor standpoint, I believe that any prolonged sitting or prolonged standing in one area, prolonged walking, tends to cause her to have flare-ups." Asked to define "prolonged," Dr. Yapor stated, "within an hour, half an hour to forty-five minutes." Based on his assessment of Kouzoukas' physical restrictions, Dr. Yapor testified that, in his opinion, Kouzoukas could not ...

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