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Eric Hoffman v. Orland Firefighters' Pension Board

November 21, 2012

ERIC HOFFMAN
PLAINTIFF-APPELLEE,
v.
ORLAND FIREFIGHTERS' PENSION BOARD; ORLAND FIREFIGHTERS' PENSION FUND; MEMBERS OF THE ORLAND FIREFIGHTERS' PENSION BOARD (GEORGE SHICK, PRESIDENT; NICHOLAS ANASTOS, SECRETARY; SALVATORE CACCIATO, TRUSTEE; GLENN MICHALEK, TRUSTEE; ROBERT MITCHELLL, TRUSTEE; BRYANT KRIZIK, FIRE CHIEF); AND ORLAND FIRE PROTECTION DISTRICT,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 10 CH 28719 The Honorable Sophia Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion.

Justice Gordon dissented in part, with opinion.

OPINION

¶ 1 The Orland Firefighter's Pension Board (the Board) terminated the work-related disability pension of plaintiff Eric Hoffman, a decision the circuit court reversed. The plaintiff was awarded a disability pension by the Board in 2002 by a three to two vote, following a 2001 injury he sustained while performing his firefighter duties. In 2010, the Board held a hearing to examine whether the plaintiff should continue to receive his disability pension. The plaintiff's personal physician testified that the plaintiff remained physically incapable of performing the full duties of a firefighter. The Board's doctor, based on his examination of the plaintiff and his review of the available medical records dating back to the plaintiff's original injury in 2001, testified that the plaintiff had no objective manifestations of a physical disability and that his only ailment was a subjective claim of pain. The Board's doctor opined that the plaintiff was never rendered disabled by his 2001 injury. The Board terminated the plaintiff's pension. The circuit court reversed, ruling that the only evidence supporting the termination was that the plaintiff never sustained a disability, which rendered the Board's decision against the manifest weight of the evidence because no proof was presented that the plaintiff had recovered from his disability. We agree with the circuit court and affirm.

¶ 2 BACKGROUND

¶ 3 The plaintiff became a member of the Orland Fire Protection District, and the Orland Firefighters' Pension Fund, on March 30, 1992. On March 6, 2001, he injured his back loading a 360-pound patient on a stretcher into an ambulance. Dr. Terrence Moisan, the retained physician of the fire protection district, examined the plaintiff. On March 7, 2001, Dr. Moisan ordered an X-ray and MRI of the plaintiff's back. The results of the MRI were "normal" and "negative for any disc herniation or degenerative disc change." Dr. Moisan prescribed physical therapy and referred the plaintiff to Dr. Richard Beaty, an orthopedic surgeon. Dr. Beaty also prescribed physical therapy and referred the plaintiff to a pain specialist, Dr. Scott Glaser, who administered epidural injections. The plaintiff continued under Dr. Beaty's care on a semiregular basis, with continued physical therapy. In May 2002, Dr. Beaty determined the plaintiff's progress had "plateaued."

¶ 4 On January 8, 2002, the plaintiff applied for duty-related disability benefits from the pension fund. On January 9, 2002, the plaintiff underwent a functional capacity examination. The examination revealed that he could not perform the duties of a firefighter; a four-week conditioning program was recommended. After the plaintiff completed the conditioning program, Dr. Beaty advised the plaintiff to undergo a second functional capacity examination. He did so on June 12, 2002. The result of the second examination was that the plaintiff could meet the demands of his job. Dr. Beaty, however, recommended that the plaintiff return to work only under restrictions against bending or twisting.

¶ 5 A duty-related pension hearing was held over several days in May and July 2002. As provided by statute, the plaintiff was examined prior to the hearing by three physicians selected by the Board: Dr. Rajeev Khanna, Dr. Brian Svazas, and Dr. William Earman.

¶ 6 Dr. Khanna's report stated that he did not "anticipate any permanent disability" and estimated that the plaintiff could return to work in four to six weeks. He opined that the plaintiff's weight gain contributed to his back pain. The ordered X-ray disclosed "no evidence of osteoarthritis or degenerative disc disease."

¶ 7 In his report, Dr. Svazas noted that the MRI showed no sign of disc bulge or herniation. He reported that the plaintiff did not comply with the home exercise program his physical therapist prescribed. Dr. Svazas opined that the plaintiff suffered from a muscoloskeletal issue, caused mostly by his weight gain. He did not believe the plaintiff was "permanently disabled from fire service"; he felt the plaintiff was "capable of returning to fire fighting duties." He recommended a course of physical therapy.

¶ 8 Dr. Earman testified before the Board that the plaintiff was "suffering from a chronic low back pain condition" based on his review of the MRI records, which revealed no abnormality. Dr. Earman did not identify a physical cause of the pain because the plaintiff's records did not "indicate an etiological cause for his back discomfort." His ultimate opinion, however, was that the plaintiff was not able to perform the duties of a firefighter based on the January 9, 2002 functional capacity evaluation and therefore was permanently disabled.

¶ 9 On July 31, 2002, the majority of the five-member Board voted to award the plaintiff a duty-related disability pension.

¶ 10 Thereafter, pursuant to statute, the Board periodically requested the plaintiff undergo an independent medical examination to determine whether he should continue to receive pension benefits. On July 29, 2005, Dr. John Stamelos performed an examination of the plaintiff, which revealed no objective findings to corroborate the plaintiff's complaints of back pain. Dr. Stamelos prescribed a functional capacity examination for the plaintiff. The plaintiff's personal physician, Dr. Beaty, advised the plaintiff that he could undergo the functional capacity exam, but he should do so without exerting himself beyond the limits of his pain. Dr. Stamelos opined that such a limitation would render the examination useless; no functional capacity exam was performed. Ultimately, Dr. Stamelos concluded that the plaintiff was unable to perform his duties as a firefighter "because of the restrictions placed on him by his treating physician." He stated, "At this time, it is my opinion that Mr. Hoffman is permanently disabled from firefighter service because of continued pain and discomfort regarding his lower back, SI joint, as well as his issues regarding his shoulder." The plaintiff retained his disability pension.

¶ 11 In 2009, the Board requested the plaintiff undergo a medical examination by Dr. Martin Lanoff, as the Board-selected physician. Upon examination of the plaintiff and review of his medical records dating back to the injury to his back in 2001, Dr. Lanoff found no objective basis for the plaintiff's complaints of back pain. He could identify no "medical pathology" to corroborate the pain. He wrote, "[The] physical examination findings have always been negative from an objective standpoint and all imaging tests have been negative (and they have been quite extensive) since the very beginning." He characterized the diagnosis assigned to the plaintiff as one of pain, "which is not a diagnosis, it is a complaint."

¶ 12 Dr. Lanoff completed the Board's "Physician's Certification of Continuance of Disability" form. To the question of whether the patient continued to be disabled to the point he was unable to perform his duties, Dr. Lanoff checked "No." The form requested an explanation of "the nature of the member's current injury/illness that prohibits him or her from performing his or hr [sic] duties as a firefighter and/or officer." Dr. Lanoff wrote, "No disability."

¶ 13 On January 27, 2010, the Board began a hearing on the plaintiff's possible restoration to service. Counsel for the plaintiff objected to the introduction of Dr. Lanoff's report as hearsay, in Dr. Lanoff's absence. Dr. Lanoff was unavailable to testify by phone.

¶ 14 At the continued hearing on February 15, 2010, Dr. Beaty testified that he was the plaintiff's long-term treating doctor and was very familiar with the plaintiff's condition. He opined that returning the plaintiff to work under his current physical condition would put him in danger as well as his co-workers.

¶ 15 On February 22, 2010, Dr. Lanoff's testimony was taken by phone. The plaintiff also testified. Dr. Lanoff testified to the contents of his written evaluation. He restated his opinion that the plaintiff was not disabled. The following question and answer took place during Dr. Lanoff's cross-examination.

"Q. *** [J]ust to summarize the general thrust of your report - - it's your contention that Mr. ...


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