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Howe v. Retirement Board of Firemen's Annuity & Benefit Fund of Chicago

Court of Appeals of Illinois, First District, First Division

March 9, 2015

PATRICK J. HOWE, Plaintiff-Appellant,
v.
THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee

Page 504

Appeal from the Circuit Court of Cook County. No. 13 CH 27714. Honorable Kathleen M. Pantle, Judge Presiding.

For APPELLANT: Stephen B. Horwitz, Of Counsel, Sugarman & Horwitz, Chicago, IL.

For APPELLEE: Mary Patricia Burns, vincent D. Pinelli, Of Counsel, Burke Burns & Pinelli, Ltd., Chicago, IL.

PRESIDING JUSTICE DELORT delivered the judgment of the court with opinion. Justices Connors and Harris concurred in the judgment and opinion.

OPINION

Page 505

DELORT, PRESIDING JUSTICE.

[¶1] This case comes before us for a second time to review whether the defendant Retirement Board (Board) of the Firemen's Annuity and Benefit Fund of Chicago (FABF) properly denied plaintiff's application for a duty disability benefit, which plaintiff had filed pursuant to section 6-151 of the Illinois Pension Code (Pension Code) (40 ILCS 5/6-151 (West 2010)). On our initial review, we did not reach the merits of the underlying claim because we found the Board never validly took final action on the application. Howe v. Retirement Board of the Firemen's Annuity & Benefit Fund, 2013 IL App. (1st) 122446, 996 N.E.2d 664, 374 Ill.Dec. 969. We vacated the Board's decision and remanded the cause with instructions for the Board to take valid final action by conducting a proper affirmative vote on a specific written decision. After a majority roll call adopting its written decision to deny plaintiff a duty disability benefit, plaintiff filed a second complaint for administrative review. The circuit court affirmed the Board's administrative decision. For the following reasons, we confirm the Board's decision and affirm the circuit court's judgment confirming the Board.

[¶2] I. BACKGROUND

[¶3] The underlying facts are largely uncontested and are set forth in the administrative record. Plaintiff Patrick J. Howe became an employee of the City of Chicago (City) on June 16, 1977, and was assigned to the Chicago fire department (CFD) as a paramedic within the department's bureau of emergency medical services. Howe was promoted within the paramedic ranks to the level of paramedic field chief. He remained in the field as a paramedic until 1984.

[¶4] In 1984, Howe began work on a new assignment at the CFD's training academy. In 1996, Howe accepted a CFD managerial position, commonly referred to as an " exempt rank" position. In the new position, Howe worked on personnel and employee relations matters in the department's administrative services division. Howe negotiated contracts, performed grievance resolution, and developed department examinations. Eventually, he became deputy district chief of employee relations.

[¶5] In 2002, the CFD assigned Howe to work at its headquarters located at 10 West 35th Street in Chicago. His regular working hours in the administrative services division were from 8 a.m. to 4:30 p.m. As deputy district chief of employee relations, his duties did not include mitigating any emergency in the City nor commanding emergency incidents.

[¶6] Howe also continued, however, to perform some limited paramedic duties. The CFD stored a complete inventory of advance life support and medical response equipment at the headquarters. Every paramedic stationed at CFD headquarters was required to respond to any emergency medical services incident and provide care within the building or on adjacent streets. Howe maintained his State of Illinois paramedic license and, since he never signed a form with the CFD that would have relieved him of an obligation to perform paramedic duties while he served in an exempt rank capacity, he was obligated to respond to calls for emergency medical services when so notified by the City's office of emergency communication. Howe was not the only paramedic stationed at

Page 506

CFD headquarters. Howe often responded as a paramedic to emergencies at headquarters or the surrounding area, but most of those times, other CFD personnel were with him. In case of an emergency at headquarters or the surrounding area, ambulances and fire engines from other stations were also available to respond.

[¶7] Although Howe normally served from 8 a.m. to 4:30 p.m., his duties sometimes required him to be " on call" on a 24-hour basis. One of these on-call assignments was serving a rotation as the CFD's media affairs officer. In this capacity, Howe was on call for 24 hours a day for a one-week period.

[¶8] On February 25, 2002, Howe was serving as media affairs officer. After leaving CFD headquarters at the end of his regular workday, Howe proceeded on his route home, driving his CFD-issued vehicle southbound on the Dan Ryan Expressway (Ryan). At approximately 5 p.m., a call came over the CFD radio in his vehicle announcing that a man had fallen from a platform onto the rail tracks at the train station located at 63rd Street and the Ryan.

[¶9] Although Howe was not ordered by the CFD or the office of emergency management communication to go to the scene of the incident, Howe chose to self-dispatch and exited the Ryan at the off-ramp. According to Howe, he chose to respond because this type of an incident " always attract[s] media attention," and he thought it would best to respond to the dispatch. He also chose to respond because he is a licensed paramedic and wanted " to see if [he] could help with this patient as well."

[¶10] As Howe parked his vehicle outside the 63rd Street train station, a fire truck from CFD Engine Company 84 also pulled up. Howe grabbed a " quick response bag" (QRB) from the trunk of his vehicle, which was stocked with emergency supplies that a paramedic would carry as a first responder. Howe could not recall being required by the CFD to have a QRB in his vehicle, but he did keep one in his trunk. Howe followed the firefighters from Engine 84 into the station. He observed that no Chicago Transit Authority (CTA) personnel were present. The CTA attendant on duty was on the railroad tracks assisting the man who had fallen.

[¶11] Because the CTA attendant was not present to open the ticket booth or unlock the turnstile, Howe decided to leap over the turnstile in the same manner a gymnast would leap over a vault. He pressed his hands down on either side of the turnstile and boosted his body weight up, throwing his legs up and over the turnstile. At that point, Howe felt a " pop" in his right shoulder with extreme pain. According to Howe, on a scale from 1 to 10, the amount of pain he felt " was easily a ten." Howe suspected that he had dislocated his shoulder.

[¶12] Howe descended the stairs to the platform. As soon as he arrived onto the platform, he observed the firefighters of Engine Company 84 beginning the process of lifting the victim off the tracks. By the time the victim was placed back onto the platform, a CFD ambulance had arrived to assist. Howe did not render any medical treatment to the victim.

[¶13] As Howe returned to his vehicle, he felt his right shoulder and arm stiffen. He called both his wife and the fire alarm office to tell them he needed to seek treatment at the hospital for his shoulder. The fire alarm office informed Howe that they would dispatch the appropriate chief to the hospital to investigate the incident. Howe drove himself to Little Company of Mary Hospital rather than call an ambulance because he " knew there was no need for

Page 507

[him] to tie up an ambulance for an injured shoulder."

[¶14] Before his release from the hospital, Howe spoke to CFD Battalion Chief Gerald Peck, who had been dispatched by the fire alarm office to investigate the circumstances of the injury. Battalion Chief Peck completed a CFD form reporting the injury, in which he assessed that the shoulder injury Howe sustained was duty-related.

[¶15] Howe returned to duty 8 to 10 days after sustaining the injury. He underwent physical therapy and received steroid injections. When his shoulder failed to respond to treatment, Howe underwent a magnetic resonance imaging (MRI) test, which revealed a torn rotator cuff. The CFD medical section referred Howe to an orthopedic surgeon, Dr. Charles Bush-Joseph.

[¶16] On August 5, 2002, Dr. Bush-Joseph initially performed arthroscopic surgery on the shoulder, which became open surgery because the damage was more severe than originally diagnosed. Howe returned to duty on October 31, 2002 and continued to work at the CFD for the next six years. His shoulder continued to bother him with increasing pain and weakness. He received injections for the pain.

[¶17] In 2008, Howe's pain became much more severe and Howe returned to Dr. Bush-Joseph, who prescribed an injection and another course of physical therapy. Shortly thereafter, Dr. Bush-Joseph recommended a second surgical procedure. The MRI revealed no specific tear, but did indicate bone spurs and scar tissue which required removal.

[¶18] On December 1, 2008, Dr. Bush-Joseph performed a second surgical procedure on Howe's right shoulder. Howe returned to duty in March 2009. He continued to undergo physical therapy, but the shoulder pain persisted and he did not regain his full range of motion. Howe returned to Dr. Bush-Joseph on July 17, 2009 for an arthrogram and another MRI. Howe needed a third surgery because of " recurrence of tearing" related to the original surgery. Dr. Bush-Joseph referred Howe to a shoulder specialist, Dr. Gregory Nicholson. Following an examination, Dr. Nicholson found the tear to be repairable and agreed that Howe required surgery. The CFD's independent medical examiner, Dr. Preston Wolin, agreed with the recommendation for surgery in a report he provided to the CFD's medical director.

[¶19] On March 1, 2010, Dr. Nicholson performed the third surgery on Howe's right shoulder. Thereafter, Dr. Nicholson provided a report to the CFD stating that Howe was " 'at maximum medical improvement and requires permanent restrictions. And those restrictions would be a 25-pound lift from floor to waist.'" Dr. Nicholson also recommended additional limitations of a 15-pound limit from waist to chest and a 25- to 30-pound limitation on pushing and pulling. In addition, Dr. Nicholson restricted overhead lifting.

[¶20] According to Howe, the restrictions recommended by Dr. Nicholson prevented him from performing all the physical requirements of a paramedic. Howe testified that he could not return to work for the CFD unless he was able to perform all the physical duties of a paramedic.

[¶21] On December 8, 2010, Howe signed a City " End of Employment Form," which is completed only if an employee is leaving City service. The form indicated that February 28, 2010 was the last day Howe worked for the CFD. His salary at the time of separation was $137,460. The form also indicated Howe's reason for leaving employment as " Applying for Pension Benefits."

Page 508

[¶22] Howe submitted his application for a duty disability benefit on December 15, 2010. Dr. Isaac Marcos, a CFD occupational health physician, submitted a report to Dr. George Motto of the FABF regarding Howe's application on January 26, 2011. In his report, Dr. Marcos detailed Howe's injury and history of treatment. Dr. Marcos' report noted that Howe " remains off-duty and has exhausted all his sick and injury leave."

[¶23] On February 15, 2011, Dr. Motto submitted his report to the Board. Dr. Motto stated that Howe was injured " on duty suffering a significant rotator cuff tear in his right shoulder." According to Dr. Motto, Howe " never really returned to normal." Dr. Motto noted that the strength in Howe's shoulder was markedly diminished to the extent that Howe was unable to lift his own medical record. The report stated, " performing his duties as District Chief in charge of Employee Relations was difficult and lifting relatively light materials around the office. He is at MMI [maximum medical improvement]."

[¶24] On March 16, 2011, Howe testified before the Board at his hearing for application for a duty disability benefit. Under questioning from members of the Board, Howe agreed that he had the ability to carry out the duties of his career service type and could ...


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