Appeal from the Circuit Court of Du Page County. No. 11-MR-183 Honorable Robert G. Gibson,Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion.
Justice McLaren dissented, with opinion.
¶ 1 Plaintiff, Edward Lambert, a firefighter/paramedic employed by the Village of Downers Grove, applied for a line-of-duty disability pension from defendant, the Downers Grove Fire Department Pension Board (Board). Following a public hearing, the Board denied the request for the pension. Lambert then sought administrative review in the circuit court of Du Page County. The trial court upheld the Board's decision, and Lambert now appeals from the trial court's order. We reverse and remand.
¶ 3 Lambert was hired as a firefighter by the Village of Downers Grove in March 1997. On September 10, 2009, Lambert filed an application with the Board, seeking a line-of-duty disability pension because of a right-knee injury that "just is not responding to treatment which would allow [him] to return to active duty." At the public hearing held on March 16, 2010, Lambert testified that, in September 2005, he injured his right knee during a training exercise. He "had a pop" in the knee and felt "excruciating pain." After going to the hospital, he was given a knee brace and was taken off duty for one month. On October 27, 2008, he was running on a treadmill during a mandatory fitness program when he had "excruciating pain" in his right knee. He told his lieutenant and filled out an accident report. He then completed his shift.
¶ 4 The next day, Lambert saw an orthopedic doctor, Dr. Gluek, and had a magnetic resonance imaging (MRI) of his right knee. Gluek recommended "conservative care." Lambert sought a second opinion from Dr. David Mehl, who recommended arthroscopic surgery on the right knee, which Lambert underwent in April 2009. He had a second surgery on December 22, 2009, during which "debris and scar tissue" were removed.
¶ 5 After the 2008 injury, Lambert favored his right knee; he limped, and when he stood up from a seated position, he had to put all of his weight on his left leg. This caused back pain that radiated down his legs and caused tingling and numbness in his feet. An MRI of his back revealed bulging discs and a possible hernia. A doctor who examined him for an independent medical examination (IME) in his workers' compensation case opined that the leg and foot pain was a result of his diabetes. Lambert's treating physician for diabetes disagreed. Both the IME physician and Gluek advised him that he might need a total knee replacement at about age 50.
¶ 6 Lambert testified that he had undergone a functional capacity evaluation (FCE). During this evaluation, which he did not describe, he "fully expel[led] effort" to the best of his ability and was told to work through the pain that he experienced.
¶ 7 Lambert stated that he could not squat, kneel, crawl, or climb up or down ladders. Walking on stairs was difficult and painful. He was not allowed to carry more than 25 pounds; he could not carry a hose or an air pack, let alone a person. He still had problems with his back and his right foot, which still became numb. He also had neck pain and headaches and did not have full movement in his neck.
¶ 8 Under questioning from the Board members, Lambert testified that he used a treadmill or elliptical exercise machine three to four times a month before the October 2008 injury. He had experienced knee pain "continuously" since the September 2005 injury; the doctor had told him that he would have pain and "would have to deal with it." Since his December 2009 surgery, the pain "around the knee on the outside" was fine, but "[i]nside the knee [was] just not improving." He still had difficulty bending, kneeling, and squatting. His doctor described the problem as "maltracking," where the kneecap did not properly slide in its track when the knee was bent. His knee locked up, and he experienced pain and could lose his balance. The doctor gave him a brace to help stabilize the knee. Lambert did not think that he could "do the job of a fireman." He attended physical therapy three times a week, riding an exercise bike, doing basic exercises, and stretching. He weighed 260 pounds, 20 to 30 pounds more than when he started with the department. He had been with the department four or five years when he was first diagnosed with diabetes; his doctor diagnosed him as "a late onset Type 1." He used an insulin pump. He had taken Vicodin but he had stopped because his doctor wanted him to stop in order to prevent addiction.
¶ 9 Lambert had not been released to return to work since his second surgery, and he was not working in any capacity at the time of the hearing. He could not do any work around the house that required him to squat or get on his knees, nor could he do "any kind of heavy work."
¶ 10 Various incident reports, medical records, IME reports, and FCE reports were entered into the record. The three doctors who performed IMEs at the request of the Board all concluded that Lambert was disabled for service in the fire department as a firefighter. Dr. William Malik diagnosed Lambert as suffering from "significant chondromalacia of the right patella" and noted that, while Lambert did "not have a significant patellar grinding test," he did have "diffuse pain in the retropatellar area." Lambert had failed to significantly improve even after "reasonable therapy postoperatively" and various injections. Malik opined that Lambert had "reached the point of maximum improvement." Malik agreed with the July 21, 2009, FCE that had found Lambert to be able to perform around 85% of the demands of his job and found that he "cannot perform the full duties of a firefighter at the present time." Dr. Joseph Thometz found "advanced chondromalacia" and noted that Lambert had "structural problems with his knee that are causing pain that would preclude him from returning to his duties as a fire fighter." Dr. Terrence Moisan noted that Lambert had undergone surgery, "significant physical therapy," and injections, "with no apparent improvement." His examination of Lambert's knee revealed "normal range of motion, minimal crepitations, but pain over the medial joint line." Lambert's strength and gait appeared normal. Based on his examination and review of FCE and other evaluations, Moisan opined that, while Lambert could safely perform job duties up to the medium and occasionally heavy level, it was unlikely that he would return to the "very heavy" level of job duties.
¶ 11 Four FCEs were conducted by METT Therapy Services between July 31 and November 3, 2009. The percentage of "job demands met" noted in the reports ranged from a low of 66% in July to a high of 85% in September, and the percentage of "consistent/valid tests" ranged from a high of 97% in August to a low of 83% in November. The FCEs noted that Lambert exhibited "pain behaviors of grimacing and grunting," especially while squatting and also while crawling, lifting, and climbing stairs and ladders. The August and September FCEs suggested that Lambert would benefit from continued work conditioning "in order to return to work full time without restrictions." The November FCE noted that the 83% consistency of effort/validity result "would suggest the client presented with segmental inconsistencies during this evaluation resulting in mild self limiting behaviors." Lambert was still able to perform only at the "heavy physical demand level," while his job was classified at the "very heavy physical demand level." As of the November FCE, Lambert was still "restricted from work."
¶ 12 The Board voted to continue the hearing, as Lambert's most recent surgery was after all of the IMEs and FCEs had been performed. The Board explained that some of the information received after the surgery "appears to at least reflect some significant change in [Lambert's] condition for the better."
¶ 13 The Board reconvened the hearing on September 7, 2010. Lambert submitted additional evidence that was made part of the record. Mehl, who had treated Lambert for over a year, opined in a May 7, 2010, letter that Lambert "has not made a sufficient recovery to be able to return to [sic] a firefighter." Further, Mehl opined that Lambert "is permanently disabled from his job as a firefighter."
¶ 14 Lambert also underwent an FCE on August 28, 2010, the summary report of which was made part of the record. Michael Hornbuckle, a certified work capacity evaluator, reported that the overall test findings, combined with clinical observations, suggested both that Lambert exerted full physical effort in the test and that Lambert's "subjective reports of pain and associated disability [were] both reasonable and reliable." After describing his findings regarding Lambert's ability to lift and carry weight, sit, stand, and walk, Hornbuckle summarized that Lambert "needs to be a full job match before he can return to work as a fireman, and he does not meet the full list of demands for his job at this time." While Lambert had "general tolerable pain levels with everyday activities," his pain levels increased "significantly with right knee flexion, direct pressure to the right knee, and loading of the right leg" such that, although he is "very strong," he "is limited in his abilities due to pain." Hornbuckle felt that Lambert would "have difficulty completing a work-conditioning program" at that time but suggested continued functional rehabilitation to help correct some noted "biomechanical hip faults" that added "undue stress to the right knee in gait, and have the ability to contribute to his continued right knee dysfunction." He also recommended further discussions regarding pain control to help manage pain, but concluded that "at this time [Lambert] is not ready to return to work full time."
¶ 15 The record also included an August 30, 2010, report by Mehl, who noted that Lambert had "significant post-traumatic chondromalacia." Lambert had received "some mild pain relief" from Euflexxa injections given to him in May 2010. Mehl noted "good range of motion from 5 degrees to 125 degrees" and "nearly normal" strength, but also noted "severe cropitus throughout motion." He opined that Lambert "is not able to return to work as a firefighter and I believe this will be a permanent condition as a result of the injury to his knee and subsequent surgeries." Lambert "will be permanently disabled from work as a firefighter" and "is not a candidate for further work conditioning."
¶ 16 The Board then notified Lambert that, at its March meeting, it had authorized the use of a "surveillance data gathering service" to record Lambert's activities outside his house on the morning of August 24, 2010, and had just received a DVD of that surveillance. Although the surveillance had been made over approximately one hour, the camera had been turned off when Lambert was not seen; the actual recording lasted 27 minutes and 48 seconds. After viewing the DVD, Lambert had no objection to its admission, and the Board voted to "enter the surveillance evidence into evidence."
¶ 17 The Board then questioned Lambert regarding the new evidence. Lambert stated that he did not take any pain medication on the day of the August 2010 FCE, because the test would "not [be] a true evaluation of what my capabilities are." Lambert's counsel told the Board that Lambert would not be allowed to take one of his prescribed pain medications, Vicodin, if he returned to duty. Lambert stated that some days he could get by with taking only ibuprofen for pain, but some days he would take up to eight Vicodin. Pain often prevented him from going to sleep or staying asleep. During a discussion of Lambert's physical restrictions, the following took place:
"[BOARD] PRESIDENT LAZZARA: Help me with this one, because you just said you can't kneel, you can't crawl, but yet you have been sitting in that chair twisting ...