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Michael D. Rose v. the Board of Trustees of the Mount Prospect Police

September 15, 2011

MICHAEL D. ROSE,
PETITIONER-APPELLEE,
v.
THE BOARD OF TRUSTEES OF THE MOUNT PROSPECT POLICE PENSION FUND, DEFENDANT-APPELLANT.



No. 09 CH 06026 Appeal from the Circuit Court of Cook County, Illinois, County Department, Chancery Division. The Honorable Nancy J. Arnold Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 The petitioner-appellee, Michael D. Rose, wasa patrol officer in the Village of Mount Prospect Police Department. On February 21, 2004, while on patrol and driving his squad car, the petitioner was injured in an automobile accident. The petitioner was subsequently involved in a separate and undisputably off-duty automobile accident, on June 1, 2004.*fn1

¶ 2 As a result of his February 21, 2004, accident, the petitioner filed an application with the board of trustees of the Mount Prospect Police Pension Fund (hereinafter Pension Board) requesting a "line-of-duty" pension pursuant to section 3-114.1 of the Illinois Pension Code (hereinafter Pension Code) (40 ILCS 5/3-114.1 (West 2006)), and contending that he suffered apermanent disabling injury (namely, herniated discs in his lower back). In the alternative, the petitioner requested a "nonduty" disability pension pursuant to section 3-114.2 of the Pension Code (40 ILCS 5/3-114.2 (West 2006)). The Board denied the petitioner's request for a "line-of-duty" disability pension, but granted his request for a "nonduty" disability pension. In doing so, the Pension Board found that the petitioner was not entitled to a "line-of-duty" pension because:

(1) the February 21, 2004, accident did not occur while the petitioner was performing an "act of duty"; and (2) the February 21, 2004, accident was not a contributing cause of the petitioner's undisputed disability; rather that disability was caused by the injuries the petitioner sustained in the later June 1, 2004, off-duty accident.

¶ 3 The petitioner sought administrative review of the Pension Board's decision with the circuit court pursuant to section 3-103 of the Code of Civil Procedure (hereinafter Civil Procedure Code) (735 ILCS 5/3-103 (West 2006)). The circuit court granted the petitioner's complaint for administrative review, reversed the Pension Board's decision, and entered judgment in favor of the petitioner, specifically finding that he was entitled to a "line-of-duty" pension. The Pension Board now appeals, asking that we reinstate its original order denying petitioner's request for a "line-of-duty" pension. For the reasons that follow, we affirm the decision of the circuit court.

¶ 4 I. BACKGROUND

¶ 5 The record, which is fairly cumbersome, reveals the following relevant facts and procedural history. After the petitioner filed his request for a "line-of-duty" pension on April 30, 2007, the Pension Board held two administrative hearings on the petitioner's application. During those hearings, the Pension Board suggested that the petitioner amend his application and alternatively request a "nonduty" disability pension without prejudice to his claim for a "line-of-duty" disability pension. The petitioner complied with this advice and amended his application.

¶ 6 A. The Administrative Hearings

¶ 7 After the petitioner amended his application, the Pension Board heard the petitioner's testimony and reviewed voluminous evidence introduced into the administrative record. That evidence consisted of over 30 exhibits and included, inter alia: (1) various village police and administrative records concerning the petitioner's assignment and movements on February 21, 2004, as well as the car accident in which the petitioner was involved on that date; (2) the petitioner's pleadings and deposition testimony in the civil lawsuits against the individuals involved in the February 21, 2004, and June 1, 2004, car accidents; (3) medical reports and records from the petitioner's family physician, Dr. John Cottrell, who was the first to treat the petitioner after his February 2004 accident; (4) numerous medical records from institutions where the petitioner has been treated since his February 21, 2004, accident (including records from, Holy Family Hospital, the Lutheran General Spine Center, Northwest Community Hospital, Adult Pediatric Orthopedics, S.C., the Condell Medical Center, the Loyola Medical Center, and the Illinois Bone and Joint Institute); (5) depositions of the following treating physicians, Dr. Michael Jacker, Dr. Martin Lannoff, and Dr. Jay Levin; (6) depositions of Dr. Alexander John Ghanayem, and Dr. Thomas Gleason, who were asked by the village and the village's insurer carrier, respectively, to evaluate the petitioner for purposes of his workers' compensation benefits claim; (7) a medical evaluation by Dr. Samuel Chmell, the petitioner's medical expert; and (8) three independent medical evaluations of the petitioner for purposes of his disability pension, performed by Dr. Gary Shapiro, Dr. Miledones Eliades, and Dr. Gary Yarkony, and ordered by the Pension Board, pursuant to section 3-115 of the Pension Code (40 ILCS 5/3-115 (West 2006)). For purposes of brevity, we address and summarize only that testimony and those exhibits which are relevant to this appeal. We do so in chronological order.

¶ 8 1. Evidence Regarding the February 2004 Accident:

The Petitioner's Testimony and Relevant Village Records

¶ 9 During the administrative hearings, the petitioner first testified that he was a patrol officer for the Village of Mount Prospect (hereinafter the Village) since January 2, 2001. The petitioner denied having suffered from any injuries prior to his employment by the Village and testified that prior to being hired as a patrol officer, he was ordered to undergo a physical examination, which he passed with no reservations.

¶ 10 The petitioner next testified about his duties as a patrol officer. The petitioner explained that his duties required that he "actively patrol the Village" (either in the squad car or on foot, and sometimes even on a bicycle, as a member of the police bicycle unit) in order to protect "the property and person of the citizens of the Village." As part of his daily patrol duties the petitioner had to conduct traffic stops, respond to calls, interview witnesses and suspects, and on occasion aid the coroner and act as an evidence technician. The petitioner further stated that he was required to be physically prepared to restrain an offender or suspect, at any time, and that this often involved "twisting, bending and lifting of extreme nature." The petitioner's duties were varied and could require the petitioner to stand on his feet for long periods of time (such as in monitoring traffic), or could require him to be seated (such as in conducting long interviews).

The petitioner also testified that as part of his job as a patrol officer, he was regularly required to wear duty gear, including police boots, a bulletproof vest, a duty belt made of leather, loaded weapons, two magazines with ammunition, handcuffs, a baton, a flashlight, and various other equipment.

¶ 11 The petitioner next testified regarding the events of February 21, 2004. He stated that on that date he was 24 years oldand was assigned to an afternoon patrol shift from 3 p.m. to 11 p.m. According to the petitioner, at about 2:45 p.m., he attended roll call, at which point he was in good health. The petitioner was assigned to investigate a missing juvenile. He was dispatched to a residential address, where he spoke to the mother of the missing juvenile for about 15 to 30 minutes. During the course of this interview, the petitioner received another dispatch from Northwest Central Dispatch instructing him that the juvenile and a couple of his friends "may be" at a Citgo gas station located at the corner of Rand and Euclid Roads in Mount Prospect. After receiving this information, the petitioner proceeded to the gas station, where he arrived about 15 to 20 minutes later. Once there, the petitioner exited his vehicle and spoke to the gas station attendant, who told him that the juvenile had just been at the station and had left only a couple of minutes ago, on foot, heading southeast on Rand Road. The petitioner testified that he returned to his vehicle, intending to drive along Rand Road until he could locate the juvenile, take him into custody and bring him back to his mother.

¶ 12 According to the petitioner, however, as he attempted to exit the gas station onto Rand Road, by turning left, his squad car was hit by another vehicle, driven by a civilian, Christina Cappozzi. Cappozzi's vehicle struck the front driver's side of the squad car. The petitioner felt the car jerk back, and he hit his head on the molding between the windshield and the door. The petitioner advised Northwest Central Dispatch of the traffic accident and then exited his vehicle to see if Cappozzi was injured.*fn2

¶ 13 With respect to the February 2004 accident, the Pension Board offered into evidence several Village records regarding the petitioner's movements on that day, including, inter alia:

(1) the petitioner's "Mount Prospect Police Department Officer's Daily Activity Report" dated February 21, 2004; and (2) the Mount Prospect police department's official police report detailing the missing juvenile call, including the dispatch center's logs. The Pension Board also introduced into evidence a copy of the petitioner's deposition taken in his civil lawsuit against Christina Cappozzi.

¶ 14 The petitioner's deposition details the manner in which the police department tracks themovements of police officers while they are on patrol. In that deposition, the petitioner explained that each time a call is assigned to an officer, a computer-aided dispatch (or CAD) sheet is created. The police officer can make additions to the CAD sheet by using his in-car computer and by notifying the police department of his whereabouts and any actions he takes during the day. An officer can ask the dispatch center to add information that the officer learns on the scene, or to look into suspects of whom the officer has learned and retrieve information about them for the officer. According to the petitioner, the officer ultimately has to put codes onto any dispatch call and end it once the call has been completed.

¶ 15 The official police investigation report for February 21, 2004, introduced by the Pension Board, indicates that the missing juvenile's mother entered the police station and reported her son missing at 14:32. The petitioner's daily activity log shows that he interviewed the mother at her home from 16:47 to 17:18. The log further reveals that the petitioner received a call from dispatch regarding the missing juvenile at 17:19:02. That dispatch report informed the petitioner that the juvenile was last seen at a Citgo gas station at the intersection of Rand Road and Euclid Road. The daily log next reveals that the petitioner proceeded to the gas station, as an assisting officer, where he conducted an "investigation" from 17:20 to 17:28. The petitioner coded this investigation as "Assist 3182."

¶ 16 The official police report reveals that the petitioner's last transmission with the dispatch center regarding the call was "NO JUVS HERE" and that the petitioner then coded the call "CLEAR" and "CLOSE" at 17:30:01.*fn3 The petitioner's next and final entry for that day is the motor vehicle accident that occurred when he left the gas station.

¶ 17 When cross-examined by the Pension Board regarding his dispatch records, the petitioner testified in the following manner. When asked whether he had "completed the call," the petitioner stated that he could not remember and that another officer could have "coded it out" for him due to the traffic accident. The petitioner also admitted that after he was released from the emergency room he returned home rather than to the police station to complete his shift. On cross-examination, the petitioner further admitted that when he left the gas station, he was not "actively pursuing anyone." He also acknowledged that the emergency lights on his marked squad car were not activated before the accident occurred. In his deposition in the civil lawsuit, the petitioner similarly admitted that as he was exiting the gas station, the "status of the case at the time did not make it an emergency," and he did not "have to use extraordinary efforts to get out of the gas station and head southeast bound on Rand Road."

¶ 18 2. Evidence Regarding the Petitioner's Treatment and the Second

Off-Duty Accident: The Petitioner's Testimony and Relevant Medical Records

¶ 19 During the administrative hearings, the petitioner next testified regarding his injury and prolonged attempt at treatment. The petitioner admitted that immediately after the accident, he neither felt pain nor noticed anything out of the ordinary with his back. However, about 45 minutes later, in the course of the investigation into the car accident, the petitioner began noticing an increasing pain, discomfort and stiffness in his neck and lower back. The petitioner immediately contacted his supervisor, Sergeant Lee, and drove back to the police station, where Sergeant Lee called for an ambulance. The petitioner was transported to the emergency room at Northwest Community Hospital, where he was examined and X-rayed. Medical records introduced by the Pension Board reveal that the X-rays taken at Northwest Community Hospital were "all completely normal," did not reveal any "evidence of fracture or dislocation" or any "significant bony injuries in the cervical or the lumbar spine" but, rather, showed that "[t]he vertebral bodies, their appendages and interspaces appear normal."

¶ 20 The petitioner stated that after leaving the emergency room, on February 23, 2004, he followed up with his family physician, Dr. John Cottrell. Dr. Cottrell prescribed pain medication and muscle relaxants and ordered the petitioner to undergo physical therapy at Holy Family Hospital and not return to work until March 9, 2004. On March 9, 2004, the petitioner was examined by Dr. David Spencer from the Lutheran General Spine Center. Medical records from the Lutheran General Spine Center introduced by the Pension Board reveal that on March 9, 2004, after examining the petitioner, Dr. Spencer wrote to Dr. Cottrell that "[the petitioner] is making a good recovery from a simple lumbar and cervical strain and I anticipate no need for any further diagnostic studies or specific treatment." Dr. Spencer's dictation notes similarly state that the petitioner is recovering from "a simple back sprain" and note Dr. Spencer's recommendation that the petitioner be given a nonsteroidal anti-inflammatory medication and that he return to full duty on March 19, 2004.

¶ 21 The petitioner next testified before the Board that he returned to work on March 9, 2004, but that on recommendation from his physicians, he was assigned to "light duty capacity"*fn4 through April 4, 2004. The petitioner stated that he began physical therapy at Holy Family Medical Center on March 24, 2004. On cross-examination, the petitioner admitted that on March 30, 2004, he told his physician that the pain was no longer constant, and that on April 9, 2004, he said that "if 100 percent is perfect, I would say I'm at 90 percent." The petitioner explained, however, that these were daily reports to his physicians and that the pain he was experiencing varied from day to day depending upon his activities, so that although would seem to subside one day, but then return "in full force" the next.

¶ 22 The petitioner testified that on April 5, 2004, he returned to full duty patrol responsibilities at work. He explained, however, that he asked Dr. Cottrell to permit him to return to his full duty patrol responsibilities, because he was receiving pressure from his supervisors to return to "the streets," and to "just take some pain medication and deal with it." The petitioner averred that after he returned to "full duty" he continued to experience pain (including burning, stabbing and dull pain in his lower back, waistband, left buttock and upper thigh). The petitioner returned to Dr. Cottrell on May 21, 2004. On that day, Dr. Cottrell restarted the petitioner on pain medication and ordered X-rays of his lower back. Dr. Cottrell also referred the petitioner to an orthopedic surgeon, Dr. Michael Jacker.

¶ 23 The petitioner testified that shortly thereafter, upon advice from Dr. Cottrell, he made anappointment to see Dr. Jacker. However, before he could keep this appointment, the petitioner was involved in a second, off-duty car accident on June 1, 2004. The petitioner was again taken to the emergency room, this time at Holy Family Hospital, where X-rays were taken. The emergency room records from Holy Family Hospital, introduced by the Pension Board, reveal that the petitioner stated that he was traveling about 40 miles per hour when he was struck on the passenger side by a vehicle traveling approximately 10 to 15 miles per hour. The emergency room records further noted that the petitioner had injuries to his "lower back and buttock."*fn5

¶ 24 On cross-examination, the petitioner admitted that he did not report the June 1, 2004, accident to any of his treating physicians or to the Village of Mount Prospect police department. The Village records introduced by the Pension Board reveal that the Village did not become aware of this accident until May 2007 (three years after the incident), when the Village's new workers' compensation carrier ran a routine insurance search of the petitioner's name.

¶ 25 The petitioner next testified that on June 5, 2004, he went in for the X-rays that Dr. Cottrell had ordered for him prior to his second accident. On June 7, 2004, he also kept his appointment with Dr. Jacker, which had been scheduled prior to the accident. According to the petitioner, after an examination,Dr. Jacker ordered an MRI of the petitioner's lower back. That MRI, taken at Condell Medical Center, on June 11, 2004, revealed herniation of the petitioner's lower back at the L3-L4 level and a bulging disc at the L4-L5 level. Based on the MRI reports,Dr. Jacker diagnosed the petitioner with a "left lumbar myfascial sprain with persistent symptoms," and he ordered a set of epidural injections for the petitioner, to be administered by his colleague, Dr. Martin Lannoff. *fn6

¶ 26 Medical records from Dr. Jacker and Dr. Lannoff establish the following treatment of the petitioner. Dr. Lannoff administered the first epidural steroid injection on July 1, 2004. On July 20, 2004, the petitioner returned to Dr. Lannoff for a second epidural shot and reported to him that he was "50% improved." At that time, Dr. Lannoff released the petitioner to full and unrestricted police duties. On August 23, 2004, Dr. Jacker reexamined the petitioner and attributed the petitioner's continued, but diminished, pain to the same disk protrusion at level L3-L4. Dr. Jacker continued to allow the petitioner to remain on full duty at the police station. On October 18, 2004, Dr. Jacker again examined the petitioner and noted that the "only symptoms [the petitioner continued to experience were] soreness or slight achiness in his lower back sometimes associated with wearing the belt he wears at work as a police officer. He has no lower extremity symptoms." He noted that the petitioner was doing "very well" and that his symptoms had become "very minimal."

¶ 27 On January 24, 2005, the petitioner returned to Dr. Jacker because the pain in his back and thigh suddenly worsened. Dr. Jacker ordered further physical therapy, prescribed more anti-inflammatory and pain medication, and ordered another MRI. The second MRI, performed at Condell Medical Center on May 11, 2005, revealed disc protrusions at levels L3-L4 and L4-L5.

On November 14, 2005, Dr. Jacker ordered an additional epidural injection, which was administered by Dr. ...


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