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Daniel Payne v. the Retirement Board of the Firemen's Annuity and Benefit

September 18, 2012


Appeal from the Circuit Court of Cook County No. 10 CH 37382 Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Connors

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Quinn concurred in the judgment and opinion.

Justice Cunningham specially concurred, with opinion.


¶ 1 Plaintiff Daniel Payne appeals from a decision rendered by defendant, the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board), in which the Board denied his application for a duty disability pension. Plaintiff contends that the Board's decision to deny his application for a duty disability pension was against the manifest weight of the evidence. For the following reasons, we affirm.


¶ 3 On May 10, 2009, plaintiff injured his shoulder while falling from a ladder during a Chicago Fire Department (Fire Department) training exercise. Plaintiff was 57 years old at the time of the injury and had been working for the Fire Department since 1975. He was promoted to deputy district chief (DDC) in 2003 and held that position up until his injury.

¶ 4 On the date in question, Plaintiff was supervising a training session from a "tower ladder" that was 10 to 12 feet high. During the exercise, the Fire Department received an emergency call. The training stopped and the firemen began to respond to the emergency. Plaintiff was in a hurry to get off the tower ladder and lost his balance on the way down. He tried to hold onto the ladder with his right arm, but dropped to the ground and landed on his back. He sustained an injury to his right shoulder as a result of the fall and was taken to Northwestern Hospital.

¶ 5 As a result of his shoulder injury, Plaintiff applied for disability benefits to the Board on April 6, 2010. The Board held a hearing in connection with Plaintiff's application on July 21, 2010. The following pertinent facts were adduced at the hearing through exhibits and testimony.

¶ 6 The emergency room notes from the hospital indicate that Plaintiff had tenderness at his shoulder and decreased range of motion when he arrived on the day of the incident. His X-ray showed no acute abnormality of the right shoulder, and he was released to go home.

¶ 7 On May 18, 2009, Dr. Bernard Bach, Plaintiff's treating physician, saw Plaintiff to assess his right shoulder injury. Plaintiff was complaining of significant pain in his right shoulder while he slept and was unable to elevate his arm over 30 degrees. Dr. Bach ordered an MRI, as he suspected a possible rotator cuff tear. An MRI was performed that day.

¶ 8 The MRI revealed hypoplastic posterior glenoid with fragmentation of the posterior glenoid with maceration of the posterior-superior and posterior glenoid labrum. It was noted that this could be related to recurrent posterior subluxation secondary to glenoid hyperplasia with repetitive trauma, versus a prior direct injury or surgery to the posterior glenoid. The findings were suggestive of a mild subacromion-subdeltoid bursitis. The MRI further showed mild tendinopathy of the supraspinatus and infraspinatus, without rotator cuff tear.

¶ 9 Dr. Bach reviewed Plaintiff's MRI and found "no evidence of a complete rotator cuff tear; perhaps a small, partial-thickness tear in the supraspinatus in only one or two of the images." Plaintiff was given a cortisone injection and a prescription for physical therapy. He was told to remain off work.

¶ 10 Plaintiff started physical therapy, which gradually allowed him to elevate his arm to about 120 degrees. Because plaintiff was benefitting from physical therapy, Dr. Bach recommended continuing physical therapy and reminded Plaintiff that it could be several months before the pain would be relieved and function restored. He was to remain off work in the meantime.

¶ 11 By July 22, 2009, Plaintiff was better able to perform the functions of daily living and was without any pain. Dr. Bach put him on light-duty work at that time, because he felt that "secondary to his position in a supervisory role that if he were involved in a fire [or] that something went wrong, we feel like that he would not be able to do the activities that are required of him even though is job description says that he is only a supervisory role."

¶ 12 Plaintiff received another cortisone injection on September 2, 2009, as he was still complaining of difficulty sleeping on his right side at night and was not able to perform the duties of a firefighter.

¶ 13 Five months after his injury, Dr. Bach noted that Plaintiff would benefit from a functional capacity evaluation to determine whether he could go back to work.

¶ 14 The functional capacity evaluation was done on November 2, 2009, which was conducted by Dr. Bradley Perry of Athletico. The exam revealed that Plaintiff's job was listed as "fire fighter" at the time of the injury. Dr. Perry noted that as a firefighter for the City of Chicago, it was essential that Plaintiff show the ability to work in the "Very Heavy Physical Demand Level," which meant lifting up to 150 pounds. Plaintiff showed the ability to lift in the "Heavy Level" to "Very Heavy Physical Demand Level" for lifting below waist level. He was able to lift up to 138 pounds from a foot above the floor to waist level, and 98 pounds from the floor to waist level. He was able to lift 53 pounds from waist to shoulder, and 48 pounds from shoulder to overhead. Plaintiff was able to carry up to 68 pounds in the "Heavy Physical Demand Level," push 110 pounds in the "Very Heavy Physical Demand Level," and pull 100 pounds in the "Heavy Physical Demand Level." Plaintiff also went through simulation drills where he was able to simulate poking a hole in a roof, carrying a fire hose up stairs, and going up and down a ladder. He did not show any limitations during the simulation except for cardiovascular fatigue.

¶ 15 Dr. Perry determined that at that time, Plaintiff was "not capable of meeting critical job demands of his pre-injury job as a Fire Fighter." Dr. Perry then recommended four to six weeks of work conditioning, five times per week, in order to meet Very Heavy Physical Demand Level "needed for safe return to work as a Fire Fighter."

ΒΆ 16 On March 24, 2010, Dr. Bach noted that Plaintiff had plateaued in terms of his progress and that he reached a maximum medical improvement. Based on the exam and the results of the functional capacity evaluation, Dr. Bach believed he could be released at that point with permanent restrictions of no lifting or carrying greater than 15 pounds on occasion or 25 pounds frequently and no overhead use of his right arm. ...

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