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Hopkins v. Board of Trustees of Firefighters Pension Fund of City of East St. Louis

Court of Appeals of Illinois, Fifth District

November 10, 2016

LARRY HOPKINS, Plaintiff-Appellee,
v.
THE BOARD OF TRUSTEES OF THE FIREFIGHTERS PENSION FUND OF THE CITY OF EAST ST. LOUIS, ILLINOIS; JOHNNIE ANTHONY, Board President, Board of Trustees of the Firefighters Pension Fund of the City of East St. Louis, Illinois; and GEORGE McCLELLAN, JR., WILLIAM FENNOY, MICHAEL DILL, and RAYMOND MIX, Board of Trustees of the Firefighters Pension Fund of the City of East St. Louis, Illinois, Defendants-Appellees (The City of East St. Louis, Intervenor-Appellant).

         Appeal from the Circuit Court of St. Clair County, No. 14-MR-512; the Hon. Robert P. LeChien, Judge, presiding.

          Jennifer L. Barbieri, of Clayborne Sabo & Wagner, LLP, of Belleville, for appellant.

          Robert G. Jones, of The Jones Law Firm, P.C., of Belleville, for appellee

          Larry Hopkins. Dennis J. Orsey, of Granite City, for other appellees.

          JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Chapman concurred in the judgment and opinion.

          OPINION

          GOLDENHERSH, JUSTICE

         ¶ 1 Plaintiff, Larry Hopkins, a captain with the East St. Louis fire department, filed an application for a line-of-duty disability pension with defendant, the board of trustees of the firefighters pension fund of the city of East St. Louis (Board). Other defendants are Johnnie Anthony, Board president, and George McClellan, Jr., William Fennoy, Michael Dill, and Raymond Mix, Board members. Plaintiff claimed the cumulative effects of two injuries he suffered while on the job caused him to be disabled. The city of East St. Louis (City) intervened. Following a hearing, the Board unanimously found plaintiff failed to meet his burden that he sustained a line-of-duty disability. Plaintiff filed a timely action for administrative review in the circuit court of St. Clair County. The circuit court entered an order reversing the Board's decision and awarding plaintiff a line-of-duty pension pursuant to section 4-110 of the Illinois Pension Code (Code) (40 ILCS 5/4-110 (West 2014)). The City now appeals. The issues raised in this appeal are (1) whether the evidence supported the Board's decision that no on-duty incidents caused or were a contributing factor to plaintiff's disability, (2) whether the circuit court erred in finding the Board's decision "clearly erroneous, " and (3) whether the circuit court erred in entering an order reversing the decision of the Board and finding plaintiff entitled to a line-of-duty disability. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff was hired as a firefighter by the City on February 15, 1978. On January 15, 2013, plaintiff filed an application for a line-of-duty disability pension based upon the cumulative effects of two separate injuries he suffered in the line of duty. The first injury occurred on July 5, 2009, while plaintiff was fighting a structural fire at a commercial business. In order to gain access to the building, the firefighters had to raise an overhead door. Plaintiff was injured when other firefighters let go of the door, causing the overhead door to hit him in the head. The second injury occurred on May 23, 2011, when plaintiff was knocked unconscious after a heavy object was blown off the building that was on fire and hit him in the head. Plaintiff assumed it was "either a large brick or some type of concrete." These two injuries are also the basis for two applications for adjustment of claims plaintiff filed with the Illinois Workers' Compensation Commission. Those claims have not yet been determined.

         ¶ 4 Plaintiff's Testimony

         ¶ 5 Plaintiff testified he "sustained head, neck and shoulder injuries" and his knees were also affected by the overhead door injury. Plaintiff testified he went to three hospitals within the initial 23 hours after the injury, including St. Mary's Hospital in East St. Louis and Barnes-Jewish Hospital in St. Louis. Plaintiff went to rehabilitation at Rehab Excel and eventually returned to work.

         ¶ 6 Following the second injury, plaintiff sought treatment at, inter alia, Anderson Hospital and Gateway Regional Hospital. Ultimately, plaintiff underwent a cervical discectomy, fusion, and plate fixation at two levels in his neck. The surgery was performed by Dr. Yazdi in October 2011. Plaintiff went through more rehabilitation and was released by Dr. Yazdi to return to work as a firefighter effective January 5, 2012, with no restrictions. Plaintiff was discharged from formal physical therapy on January 31, 2012, to a home exercise program. Thereafter, plaintiff joined the YMCA and continued to do exercises he learned in physical therapy.

         ¶ 7 Plaintiff testified that once he started back to work, his symptoms reoccurred. He continued to work as a fireman until November 2012, when he stopped working due to knee replacement surgery. Plaintiff testified the head gear he is required to wear as a fireman also caused him to stop working. Plaintiff said he did not go back to another doctor to complain about his head pain because he knew he would have to go to three doctors picked by the Board in order to get disability.

         ¶ 8 Plaintiff testified that while he could have included his knee problems in his application for disability, he chose instead to apply for disability based upon his head and neck injuries incurred in the work-related accidents of July 5, 2009, and May 23, 2011. Plaintiff specifically stated:

"For me to go see three doctors about my knee would have been basically an overkill for this. That's expensive. My head and neck was enough of problem for me to pursue.
So I choose to, rather than pursue all those, the knee, the head, the neck, all that, I choose to pursue what is directly related with the job that stopped me from working. That's [why] I went that route.

         The knee is still under evaluation, I'll say. It's not even being claimed by workmen's comp. And rather that-it's a pick-your-battle kind of thing." Plaintiff described his knees as a secondary issue, with his head and his neck being the primary problem.

         ¶ 9 Plaintiff admitted he suffered injuries and other medical conditions prior to July 5, 2009. For example, prior to 2009, a physician told plaintiff that at some point he would need a knee replacement. Plaintiff testified the doctor told him to work as long as he could stand it without the surgery. Ultimately, plaintiff quit working as a fireman after a piece of ceiling landed on a fellow firefighter and plaintiff was unable to lift it off of him. Plaintiff stopped working when he knew he was a risk to his colleagues.

         ¶ 10 Plaintiff admitted he received two worker's compensation settlements through his secondary employment with Granite City Steel. As of the date of the hearing, plaintiff had been employed by the steel company, now known as U.S. Steel, for 26 years. Over the course of those years, plaintiff held several positions with the steel company. The first worker's compensation settlement was due to an accident on April 30, 2001, which resulted in a settlement of 30% of the left leg. The second settlement was due to an accident in January 2003, which resulted in a settlement of 3% of the man as a whole and 10% of the left leg.

         ¶ 11 Plaintiff admitted he underwent three different arthroscopic knee surgeries prior to the July 5, 2009, accident. Plaintiff also underwent triple bypass surgery after a stress test in 2006 revealed heart damage. Plaintiff is being treated by Dr. Shenouda for high blood ...


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