Roszak v. Kankakee Firefighters' Pension Board ( 2007 )

No. 3--06--0865
______________________________________________________________________________
Filed October 5, 2007.
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
ANDREW ROSZAK, ) Appeal from the Circuit Court
) for the 21st Judicial Circuit
) Kankakee County, Illinois
Plaintiff-Appellant, )
) No. 06-MR-14
v. )
)
KANKAKEE FIREFIGHTERS’ )
PENSION BOARD, )
) Honorable
) Kendall O. Wenzelman
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________
Applicant Andrew Roszack, a firefighter-paramedic employed by the Kankakee Fire
Department, filed for a line of duty disability pursuant to the Illinois Pension Code (40 ILCS 5/4-110
(West 2006)), with appellee Kankakee Firefighters’ Pension Board (hereinafter the Board). The
Board denied his request for disability and applicant appealed to the circuit court of Kankakee
County. The circuit court denied applicant’s request for disability and affirmed the decision of the
Board. Applicant has now appealed the circuit court’s ruling, claiming that the Board’s decision to
deny him disability was against the manifest weight of the evidence. We reverse the decision of the
circuit court and remand for further proceedings in accordance with this opinion.
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FACTS
Applicant filed his application for disability pay with the Board on September 10, 2004. Two
hearings were held with regard to the matter, one on February 17, 2005, and a concluding hearing
on August 25, 2005. At the February 17 hearing, applicant was the only witness to take the stand.
Applicant testified as follows.
Applicant was employed as a firefighter-paramedic with the Kankakee Fire Department at the
time of the injury. He had been hired by the department in September 2000. His duties included
responding to and mitigating emergency situations and fire inspections and investigations. On
December 2, 2003, while on duty, he responded to a call and upon arrival found an elderly female
patient, between 300 and 400 pounds, on the floor. He and his female partner began to lift the
woman to place her on to the stretcher, but as they did so, the wheels got caught and bound up on
a rug, causing the wheels not to lock into place and properly deploy. They had to juggle the woman
and try and gently lower her to the ground, which they did. At this time applicant and his partner
experienced some pain in their upper backs. Backup was called to help transport the woman to the
hospital, and applicant then sought medical attention for his back.
The following day, December 3, 2003, applicant was examined by Dr. J. Michael Panuska,
the city’s occupational health/workers’ compensation doctor. In January 2004 applicant saw Dr.
George Charuk, who gave him pain medication and kept him on lifting limitations. Applicant then
saw his family doctor, Dr. Samuel Deguzman, in March 2004 who referred him to Dr. Benjamin
Goldberg. Dr. Goldberg recommended surgery to applicant as his best opportunity for getting better
and returning to work. Surgery was scheduled three times between April and August 2004 but had
to be repeatedly postponed due to insurance problems with workers’ compensation refusing to pay
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for the surgery. Workers’ compensation finally authorized the surgery and it was performed on
August 31, 2004, by Dr. Goldberg.
Applicant testified that he had been in pain since the injury happened and he elected to get
surgery so that he would have the chance to come back to work. After the surgery, he was still no
better. At the time of the hearing, he had pain under his left shoulder blade, which was always
present. If he was on his feet for a long period of time, the pain increased. He could not raise his left
arm above his head.
On cross-examination by the Board, applicant revealed that he was 25 years old. He still
loved his job and did not want to quit. As of the hearing date, he was employed as a cardiopulmonary
resuscitation, or CPR, instructor at Kankakee Community College on a part-time basis, a nonphysical
job. As of that date, he was not getting workers’ compensation payments. A dispute then arose
between applicant and the Board as to applicant’s present address. The Board inquired as to the
applicant’s current address and the applicant responded that he did not have a current address at that
time but had been staying with his mother, sister, and other family members. He listed a post office
box address where he could be contacted. After much confusion and back and forth, with the Board
persisting on wanting to know where the applicant was residing, applicant provided his mother’s
address. The hearing was adjourned after some more questions.
The hearing resumed on August 25, 2005. Since the first hearing, applicant had undergone
a magnetic resonance imaging, or MRI. The first witness called in the second hearing was Dr.
Panuska. He testified as follows.
Dr. Panuska first described what the MRI conducted on applicant on May 17, 2005, revealed.
Namely, it indicated that there had been some surgical repair. Dr. Panuska testified that when
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applicant first came to see him immediately after the incident in December 2003, he never found any
evidence of a shoulder injury but, rather, diagnosed him with a thoracic strain. After that Panuska
referred him to another doctor and lost track of the case. Panuska testified that applicant seemed to
have full range of motion at the initial exam, but now, after surgery, the longer he goes without
rehabilitation the worse the injury will get. Panuska admitted that lifting a heavy patient could cause
the type of injury exhibited by applicant. He also admitted on cross-examination that the thoracic
area where he diagnosed applicant’s strain on December 2, 2003, also covered the scapula area,
which was the shoulder blade. Panuska admitted that it was not farfetched to believe that the
shoulder blade had been involved from the initial time when it covers the same area as the thoracic
area. Panuska concluded by testifying that while it was unlikely applicant’s shoulder injury could get
100% better, he could improve over time with more therapy, but at that moment, applicant could not
do his job.
Applicant was then called to the stand to continue testifying. Applicant admitted that he had
not been doing any physical therapy since the latest MRI. He had last undergone physical therapy
in December 2004 but had to stop due to the pain. He tried to do some home rehabilitation after the
surgery, but stopped because the pain was too great. Applicant described his injury as two distinct
periods: injury to surgery, and surgery to the present. Between his initial injury and the surgery, he
was not having the range of motion problems he was experiencing now. He was able to get his arm
above his head (albeit painfully). He always, however, had persistent pain under left shoulder and
limited lifting capacity. Rehabilitation efforts made it worse. After the surgery, he had severe range
of motion problems with his left arm and shoulder.
The Board then cross-examined applicant over the photo of him snorkeling on vacation in
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2004 prior to the surgery. The Board produced a photo of applicant on vacation, head out of water,
appearing to raise his right hand. Applicant argued that it was his right hand that was above the water
in the photo, not the left. The issue was left somewhat unresolved and the photo was entered into
evidence.
The Board next confronted applicant over his surgery cancellations in 2004. The Board
contended that a nurse at the hospital where the surgery was to be performed had written down that
workers’ compensation had approved the surgery in June but that applicant did not return the nurse’s
call because he was out of town and cancelled surgery due to his inability to find a ride. Applicant
disputed the nurse’s version, saying that his lawyer and workers’ compensation nurse were saying the
surgery was not approved. Applicant noted that, up to the present day, the surgery bill has not been
paid by workers’ compensation.
The Board also cross-examined applicant on his income and net worth. After much back and
forth, applicant admitted he made, on average, depending on how much his part-time job required
him to work, $1,000 a month. He has $10,000 in the bank from the sale of his house.
At the hearings, various exhibits provided by the Board and applicant were admitted into
evidence. Among the Board’s exhibits were applicant’s functional capacity evaluation of March 1,
2004, conducted at Riverside HealthCare Clinic, which indicated that he was a potentially excellent
candidate for rehabilitation, but that he did not magnify his symptoms and gave full physical effort
during the exam. Also entered by the Board was a letter from Dr. Goldberg on April 9, 2004, noting
that an MRI revealed either a full-thickness or near-full-thickness rotator cuff tear, and that the
applicant had two decisions: either to live with the injury (in which case he is at maximum medical
improvement and will likely not get better) or have surgery to repair the injury (in which case he
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would need extensive therapy, but after six months or so could possibly resume being a fireman).
Goldberg also commented that he believed applicant’s current injuries were related to the accident
on December 2, 2003.
Also included were reports from three doctors selected by the Board to review applicant’s
case. The first, by Dr. Terrence Moisan, dated December 15, 2004, stated that applicant should be
able to recover after the surgery. Moisan was also “perplexed as to the relationship of his shoulder
to the work injury” because the symptoms of left infrascapular pain did not seem to be related to the
shoulder. Nevertheless, whatever the cause of the injury, applicant was at the time incapable of
performing his duties as a firefighter. The second, by Dr. Joseph G. Thometz, dated December 16,
2004, found the applicant had left shoulder and scapular pain and was not capable of returning to his
job as a firefighter. Further, the current medical condition was a result of his work-related injury from
December 2, 2003, and that his current cause of disability was limited range of motion and strength
for the left shoulder. The third report, from Dr. William C. Malik, dated February 4, 2005, found that
applicant’s current medical condition was a result of the injury suffered on December 2, 2003, and
that he was disabled from full duty as a firefighter due to the failed rotator cuff surgery.
The Board issued its decision on December 14, 2005. The following “Findings of Fact” were
made by the Board:
“According to Dr. Panuska, there was no initial evidence of a shoulder injury;
his diagnosis was a strain of the upper back. It was also Dr. Panuska’s opinion that
at the time of the hearing, full recovery of Mr. Roszak is difficult to predict for three
reasons:
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(1) lack of aggressive post-surgery rehabilitation;
(2) the length of time from the surgery;
(3) presence of atrophy of the muscles.
According to Dr. Panuska, after his initial examination of the applicant, he
recommended aggressive rehabilitative treatment, which did not occur. Dr. Panuska
also testified that when he first examined the applicant, he had full range of motion in
the left shoulder. On cross-examination, Dr Panuska indicated that Mr. Roszak did
not avail himself to rehabilitative treatment and therapy in order to obtain maximum
rehabilitation to effect recovery.
After Dr. Panuska testified, the applicant admitted that he only tried physical
therapy on three occasions, but could not complete the physical therapy sessions. The
applicant further testified that his last physical therapy session was December 9, 2004,
about two months after he filed his application for a disability pension. The applicant
also indicated that he did not begin any rehabilitation with a physical therapist at until
twelve to eighteen weeks after his shoulder surgery.
Mr. Roszak stated that he cannot lift his arm above his shoulder and is always
in great pain. However, his physical therapy report showed that he tolerated therapy
and pain rather well. The evidence introduced at the hearing also indicated that
according to Mr. Roszak’s own website, [h]e was able to go snorkeling in Cancun,
without a problem. Board Exhibit M shows Mr. Roszak waving to the camera while
snorkeling. However, according to the applicant, he cannot identify himself in the
picture.
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The Pension Board selected Dr. Terrence C. Moisan to conduct an
independent medical examination (IME) in this case. In his report, Dr. Moisan states
that he is perplexed as to the relationship of Roszak’s shoulder injury to the work
injury. Dr. Moisan also indicated that the applicant will improve substantially if he
would continue therapy with his treating physician, Dr. Goldberg. Dr. Moisan
indicated after reviewing the MRI that there was surgical success in treating the
injury. Dr. Moisan also stressed in his latest report as to the importance of the
applicant undergoing further physical therapy and work hardening. According to this
report, the latest MRI would not be inconsistent with Roszak’s ability to return to
work.
***
In a subsequent report, Dr. Thometz states that the applicant’s latest MRI
report did not show evidence of a recurrent or residual rotator cuff tear. Despite the
lack of objective findings above, Dr. Thometz indicates that the cause of disability is
limited range of motion and strength in the left shoulder. This subjective
determination is based upon what the applicant told this physician.
The third physician conducting an MRI for the Pension Board was Dr. William
Malik. Dr. Malik describes the applicant’s condition as a failed rotator cuff surgery.
In a supplemental report, Dr. Malik concludes that Roszak suffers from ‘tendinopathy
of the supraspinatus tendon without a discrete tear identified, surgical repair noted.’
Dr. Malik concludes that Roszak is permanently disabled.
The medical documentation admitted into evidence in this case is in dispute
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as to what Mr. Roszak’s physical condition is and what caused the condition.
The applicant testified at the first hearing that he was not being allowed to see
his treating physician because his bills were not being paid and he has not been able
to see his treating physician since January of 2005. He also claimed at the initial
hearing that his surgery was denied for nine months and he does not know why.
However, according to applicant’s Exhibit 2, the surgery was cancelled because Mr.
Roszak was out of town on vacation and he did not return the doctor’s phone calls.
During the hearing, the applicant was evasive and at times refused to answer
questions proffered by the Board. For example, he initially refused to give a residence
address, he refused to state what he is currently earning, and refused to answer
questions as to his net worth.
Mr. Roszak testified that he is in constant pain, but cannot and has not seen
any treating physician for months.
Based upon the applicant’s evasive testimony and lack of candor, the Board
concludes that the applicant was not a credible witness.”
The Board then conducted its analysis of whether the applicant was disabled. The Board
found that the applicant was not disabled. The Board concluded that applicant’s lack of credibility
adversely impacted his claim that he was disabled for a number of reasons. The Board found he was
evasive in answering questions about where he lived and worked and what he earned. The Board also
believed that applicant magnified his symptoms. As evidence of this, it pointed to his snorkeling
vacation, surgery postponements, and failure to see a doctor in months. It also believed that he
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exacerbated his injuries by not, as Dr. Panuska suggested, seeing a doctor for months after the
surgeries. Although applicant blamed this on workers’ compensation and affordability issues, the
Board did not find applicant credible and pointed to his assets in the bank. The Board also pointed
to Dr. Panuska’s testimony regarding applicant’s full range of motion in the January 2004
examination and the conclusion by Dr. Goldberg that the surgery was successful. The Board
concluded that if the injury was as serious as applicant contended, he would have taken reasonable
medical steps to promote recovery. Finally, the Board cited medical evidence to support its position,
such as Dr. Panuska’s January 2004 findings that the applicant had full range of motion in his arm,
Goldberg’s proclamation of successful surgery, and the reports of the Board-appointed examining
physicians who concluded that the surgery had repaired the injury. The Board also discounted those
same appointed physicians who determined that applicant was still disabled because that was based
on their subjective determinations of what the applicant, whom the Board declared not credible, had
told them.
In the alternative, even if it were to conclude that applicant was disabled, the Board
determined that applicant would still not be entitled to disability because he had not taken the
reasonable steps to rehabilitate his shoulder after surgery.
Following the Board’s decision, applicant appealed to the circuit court of Kankakee County.
The circuit court affirmed the Board’s decision, and applicant now appeals to this court.
ANALYSIS
On appeal, applicant contends that the decision of the Board denying him disability benefits
was against the manifest weight of the evidence. In support of this contention, applicant argues that
all of the medical opinion of record indicated he was disabled from his duties as a firefighter due to
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an injury suffered on the job and thus the Board’s decision was wrong. The Board argues that there
was medical evidence showing that applicant was not disabled. Further, the Board argues that even
if applicant were determined to be disabled, he was not entitled to disability pay because he failed to
take reasonable steps to remedy his condition as required by the Workers’ Compensation Act (820
ILCS 305/1 et seq. (West 2006)).
When deciding an appeal from a judgment in an administrative review proceeding, the
appellate court reviews the administrative agency’s decision, not the trial court’s decision. Harroun
v. Addison Police Pension Board, 372 Ill.App.3d 260, 261-62, 865 N.E.2d 273, 275 (2007).
“Rulings of law are reviewed de novo, but the agency’s findings of fact will be upheld unless [they
are] against the manifest weight of the evidence.” Harroun, 372 Ill.App.3d at 262, 865 N.E.2d at
275. An administrative agency’s decision on a mixed question of law and fact will only be reversed
if the decision was clearly erroneous. Harroun, 372 Ill.App.3d at 262, 865 N.E.2d at 275.
The Board’s decision will be reversed only if it was against the manifest weight of the
evidence. The applicant has the burden of proving that he was entitled to the disability pension. Evert
v. Board of Trustees of the Firefighters’ Pension Fund of the City of Lake Forest, 180 Ill.App.3d 656,
661, 536 N.E.2d 143, 146 (1989). “‘[A]n administrative agency[’s] decision is against the manifest
weight of the evidence only if the opposite conclusion is clearly evident.’” Thigpen v. Retirement
Board of Fireman’s Annuity and Benefit Fund of Chicago, 317 Ill.App.3d 1010, 1017, 741 N.E.2d
276, 281 (2000). The reviewing court must not substitute its own judgment for that of the
administrative agency and should affirm the agency’s decision if the record contains evidence to
support the agency’s findings. Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281. “It is not
sufficient that there are mere conflicts in the testimony or that an opposite conclusion might be
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reasonable; since the weight of the evidence and the credibility of the witnesses are within the
province of the agency, there need be only some competent evidence in the record to support its
findings. Evert, 180 Ill.App.3d at 660, 536 N.E.2d at 146.
The provisions governing firefighters’ pensions must be liberally construed in favor of the
applicant. Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281. In order for an active fireman to be
entitled to duty disability benefits, he must establish: (1) that he is disabled; and (2) that his disability
was caused by an injury incurred in or resulting from an act of duty. 40 ILCS 5/6-151 (West 2006);
Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281-82.
Disability is defined as:
“A condition of physical or mental incapacity to perform any assigned duty or
duties in the fire service.” 40 ILCS 5/6-112 (West 2006).
An act of duty is defined as:
“Any act imposed on an active fireman by the ordinances of a city, or by rules
or regulations of its fire department, or any act performed by an active fireman while
on duty, having for its direct purpose the saving of the life or property of another
person.” 40 ILCS 5/6-110 (West 2006).
Further, when a firefighter applies for benefits, the Pension Code provides: “Proof of duty,
occupational disease, or ordinary disability shall be furnished to the Board by at least one licensed and
practicing physician appointed by the Board.” 40 ILCS 5/6-153 (West 2006).
Before granting a disability benefit, the Board must receive proof that the applicant is disabled
from at least one physician appointed by the Board. Thigpen, 317 Ill.App.3d at 1018, 741 N.E.2d
at 282.
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In the instant case, there is no dispute that the injury in question arose during the course of
applicant’s active duty as a fireman. He was helping a 300- to 400-pound woman onto a stretcher
after an emergency call when he felt a pain in his shoulder and back. What is at issue, however, is
whether that accident caused him to become disabled so as to be eligible for disability benefits under
the pension statute.
The Board’s analysis in that regard is problematic. Several of the Board’s crucial findings
used to deny applicant’s disability were against the manifest weight of the evidence. We will address
each finding in turn. First, the Board cites what it believes to be applicant’s credibility problems. In
support of this contention, the Board lists four instances where it believes applicant was being less
than truthful and thus destroyed his credibility with the Board.
The first instance cited by the Board is the applicant’s “evasiveness” in responding to
questions about where he lived, where he worked, what he earned, and his current net worth. We find
that the applicant’s answers to those questions, while at times seemingly evasive, do not impact on
the applicant’s veracity concerning his injury. We first note that these issues were tangential at best
to the issue before the Board, namely, whether applicant was disabled from the injury. With regard
to his current address, the following exchange was had between applicant and the Board:
“MR. PUCHALSKI: Just one other question. What is your current resident
address?
THE WITNESS: As I said, I don’t have a permanent resident address at this
time.
MR. PUCHALSKI: Well, you have to be living somewhere.
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THE WITNESS: Well, I’ve been staying with my mom and family members
and my sister. P.O. Box 1881, Kankakee, Illinois.
MR. PUCHALSKI: Okay. You don’t live in a P.O. Box. What I’m asking
you is, what is your resident address? Where are you residing as we sit here today?
THE WITNESS: I don’t have a permanent address.
MR. HARMON: Where do you sleep at?
THE WITNESS: I can sleep with my mom or my sister or my friends or my nephews.
MR. PUCHALSKI: Okay, my question is, as we sit here today, where are you
staying? Where are you living? Where are you residing?
THE WITNESS: And I just told you, I’m residing with friends and family
members.
MR. PUCHALSKI: Well, give me the address is all I’m asking. I don’t know
why this is such a big deal.
THE WITNESS: I don’t know why it is either. My address is P.O. Box 1881,
Kankakee, Illinois. If you need to write me a letter, that’s where I can get it.
MR. PUCHALSKI: Is there a reason why you don’t want to tell us where
you’re residing?
THE WITNESS: No. I don’t have any money coming in right now. I don’t
have money to buy an apartment or anything like that. Would you like my mom’s
address? Is that what you’re asking?
MR. PUCHALSKI: I’m asking you where you are living today as we speak.
Where did you get up and get dressed?
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THE WITNESS: 501 Stoney Ridge Court.
MR. PUCHALSKI: 501 Stoney Ridge Court.
THE WITNESS: Valparaiso, Indiana, 46385.
MR. PUCHALSKI: And that was your abode as of today?
THE WITNESS: That’s my mother’s address.
MR. PUCHALSKI: Okay. But that’s not what I’m asking you. And the only
reason – you know, I think – and Counsel, correct me if I’m wrong. Anytime I’ve
ever tried one of these cases in court and you ask somebody where they live, they give
you their address. And all I’m asking is, if you are not living with your mother, where
are you living? Did you wake up there today?
THE WITNESS: Yes, I did.
MR. PUCHALSKI: Okay. So you were at your mother’s house in Valparaiso,
Indiana. You slept there last night and that’s where you left to come here?
THE WITNESS: Yes.
MR. PUCHALSKI: Okay. All right. I have nothing further.”
What the exchange between the Board and the applicant demonstrated is that the applicant
was “between residences.” He had sold his house and was bouncing around between friends and
family. He readily provided the Board with a post office box address to get in touch with him. When
the Board finally narrowed down the question, he readily provided them with his mother’s address.
He had no “permanent residence” in the traditional sense of the phrase. Still, this exchange does not
appear to exhibit willful obstructionism or evasiveness on the applicant’s part. Rather, it points more
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to confusion between the parties as to what was being asked. Applicant provided a post office box,
and when the Board specified what it wanted, he readily provided his mother’s address.
Next, the Board argues that the applicant’s evasiveness in answering where he worked, what
he earned, and what his net worth was damaged his credibility. Again, this interpretation does not
hold up under a close examination of the record. In all of these instances, the applicant eventually
provided the Board with the answers it desired. As to where applicant currently worked, the Board
does not cite specifically how applicant was evasive on this subject. He answered all the Board’s
questions, revealing where and for whom he worked. With regard to his income, the applicant at first
did not understand why the Board wanted to know how much money he made. After much back and
forth between applicant’s attorney and the Board, applicant stated he did not know how much money
he made as he was a part-time employee with no set or guaranteed hours per month. Eventually,
applicant stated he made around $1,000, but again, it was an estimate on his part as he had no full-
time regular job. The Board then inquired about applicant’s net worth, and after some initial
confusion and back and forth between applicant, his attorney, and the Board, applicant stated his net
worth was around $15,000. Applicant’s attorney at times questioned the Board’s need to know
applicant’s net worth, which may have contributed to applicant’s seeming reluctance to provide
definitive answers to the Board’s questions. What all of these examples cited by the Board as
adversely affecting applicant’s credibility have in common are that they do not directly relate to
applicant’s disability stemming from the December 2, 2003, injury. Further, the Board was not
always clear or direct in conveying to applicant just what it was the Board wanted to know. Finally,
in every circumstance, the applicant eventually did provide the Board with an answer. We cannot say
that these examples cited by the Board resulted in damage to applicant’s credibility as to his disability.
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Second, with regard to applicant’s credibility, the Board cited what it termed the applicant’s
“symptom magnification.” As an example, the Board cites applicant’s testimony that he was in
constant pain and needed surgery, yet postponed surgery to go on a snorkeling vacation. This is
simply not supported by any document or testimony in the record. What the record does show is that
applicant postponed surgery in May and June 2004 due to uncertainty over whether workers’
compensation would pay for the surgery. It appeared applicant was being told by a nurse working
with Dr. Goldberg that the surgery had been approved, while his attorney and workers’ compensation
nurse were telling him it was not approved. During applicant’s testimony, the Board itself identifies
the snorkeling vacation as having taken place in February 2004. According to the medical records,
Dr. Goldberg’s first meeting with applicant was not until April 9, 2004, a full two months after the
snorkeling trip. There is no evidence for the Board’s assertion that applicant canceled surgery dates
to go snorkeling. It appears that the Board has conflated the surgery cancellations with the
snorkeling trip.
The third and fourth factors cited by the Board in assessing applicant’s credibility were his
failure to see a doctor for months while being in constant pain and his delay in seeking rehabilitation
after surgery. The Board contends that if the injury were as serious as applicant maintains, he would
have taken reasonable medical steps to promote recovery. Applicant’s testimony has refuted the
Board’s assertions. First, applicant testified that he did continue therapy at home, doing various
exercises. Second, he was reluctant to continue with the physical therapy when, in applicant’s mind,
it was not working and his condition was not improving. Third, and most important, applicant stated
that workers’ compensation would not pay for the rehabilitation. The Board contends that applicant
could pay for the rehabilitation out of his own funds. Applicant already established, however, that
17
his own net worth was limited. Workers’ compensation, from his testimony, should have been paying
for the rehabilitation. At the time of the hearing, he was engaged in litigation with his workers’
compensation claim over paying his medical bills. We find that these responses to the Board’s
questioning do not detrimentally affect applicant’s credibility, as his rehabilitation was causing him
intense pain, and once workers’ compensation stopped paying the bills, he did not spend his finite
resources on further rehabilitation while litigating his workers’ compensation claim.
Once the Board had determined that applicant lacked credibility, it used its determination to
discount the medical opinions of Doctors Thometz, Moisan, and Malik. Dr. Moisan, in his December
15, 2004, report after examining applicant, was perplexed by the relationship between the shoulder
injury and the work injury, but noted that a small tear could have occurred and masked the pain. He
then wrote, “[w]hatever the cause of the left shoulder injury, he is currently impaired for firefighter
activities due to pain limited elevation and external rotation of the shoulder.” In his December 16,
2004, report, Dr. Thometz concluded that applicant was “not capable of returning to his job as a fire
fighter for the Kankakee Fire Department” and that applicant’s “current medical condition is a result
of his work related injury from 12/2/03 while he was lifting a patient in his duties as a fire fighter.”
Dr. Malik on February 4, 2005, wrote, “I do believe that Andrew Roszak is disabled from full duty
as a firefighter for the Kankakee Fire Department” and that “the current medical condition is the
result of the described injury that occurred in December of 2003.” The Board, however, has
discounted these medical opinions, because “[t]he physicians who determined that Mr. Roszak is still
disabled, based their findings on what the applicant told them and on subjective determinations. If
the applicant was not truthful with this Board, we can assume that he was not truthful with the
Board’s examining physicians.”
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With regard to medical diagnosis and/or treatment, doctors have relied in part on the
subjective complaints of their patients and have been allowed to testify concerning those statements.
When it comes to treating physicians, statements describing medical history, past or present
symptoms, pain, or sensations are admissible as an exception to the hearsay rule if made to the
physician for purposes of medical diagnosis or treatment. See Melecosky v. McCarthy Brothers Co.,
115 Ill.2d 209, 214, 503 N.E.2d 355, 357 (1986); see also Greinke v. Chicago City Ry. Co., 234 Ill.
564, 570, 85 N.E. 327, 330 (1908). The reasoning behind this exception is based on the assumption
that patients tell their doctor their true condition of well-being and have no motive to falsify.
Greinke, 234 Ill. at 572, 85 N.E. at 330. When it comes to examining physicians, however, evidence
of such statements are not admissible under the hearsay exception if made to the physician for the
purpose of testifying. Melecosky, 115 Ill.2d at 214, 503 N.E.2d at 537; Greinke, 234 Ill. at 571, 85
N.E. at 330. Here, applicant’s statements to the various physicians were done for purposes of
medical diagnosis or treatment.
In the instant case, the Board’s doctors’ medical opinions and diagnoses have been supported
by the other medical testing, e.g. their physical examinations of applicant and the results of the MRI.
The MRI revealed the postsurgical state of applicant’s shoulder, and all the doctors noted in letters
from June 2005 that applicant would need further rehabilitation. Dr. Malik even concluded that
applicant was permanently disabled. We have already determined that the Board’s assessment of
applicant’s credibility was against the manifest weight of the evidence. Therefore, the Board’s
discounting of the doctors’ reports based on applicant’s suspect credibility was in error. The Board’s
decision to dismiss the objective findings of its appointed doctors was against the manifest weight of
the evidence.
19
Next, the Board turns to Dr. Goldberg’s claim that the surgery was a success as proof that
applicant was no longer disabled. We find this characterization by the Board to be in error. At no
place in the documentation after the August 31, 2004, surgery does Dr. Goldberg explicitly refer to
the surgery as a “success.” Further, Dr. Goldberg’s November 2004 report of his postoperation
examination of applicant revealed that applicant still had a long way to go before he could be fully
recovered. The Board has mischaracterized the use of the term “success” as meaning no disability
or that Dr. Goldberg believed the patient to be fully healed. The evidence in the record does not
support that interpretation.
Finally, the Board cites as medical evidence Dr. Panuska’s statement from January 29, 2004,
that applicant had full range of motion in his arm as evidence of no disability. This is problematic on
a couple of levels. First, at no place in the record is there any documentation showing that Dr.
Panuska examined applicant on January 29, 2004. In fact, Dr. Panuska had by that time referred
applicant to Dr. Charuk. The “Functional Capacity Evaluation Summary Report” dated March 1,
2004, indicates that applicant was being seen by Dr. George Charuk from January 21, 2004, to
February 10, 2004, after being referred by Dr. Panuska. Further, there is a “Work Status Report”
exam of applicant signed by Dr. Charuk dated January 28, 2004, along with rehabilitation services
reports dated January 27, 2004, and January 30, 2004, from the Riverside Medical Center, with Dr.
Charuk listed as the attending physician. There is no evidence in the record that applicant saw Dr.
Panuska between those dates.
There is a record of a December 29, 2003, examination by Dr. Panuska that found that
applicant had full range of motion but pain in his extremities. Dr. Panuska’s records from that time,
however, do not show that applicant was not disabled. It should be remembered that Dr. Panuska
20
saw applicant in the days immediately after the accident. He also admitted on cross-examination that
the thoracic area where he diagnosed applicant’s strain on December 3, 2003, also covered the
scapula area, which was the shoulder blade. Panuska admitted that it was not farfetched to believe
that the shoulder blade had been involved from the initial time when it covers the same area as the
thoracic area. After referring the patient to Dr. Charuk, Dr. Panuska lost track of the case. Further,
the medical report from January 5, 2004, indicated that applicant did at that time have full range of
motion, but that as the days went on, applicant began experiencing more pain.
After examining the record, and comparing the record with the findings of fact issued by the
Board, we come to the conclusion that those findings relied upon by the Board in denying disability
to applicant were against the manifest weight of the evidence. We find that, based on the testimony
and documentation in the record, applicant has carried his burden and shown that he was disabled at
the time of the hearing as a result of the December 2, 2003, injury incurred in the course of his duty
as a Kankakee firefighter.
As we have determined that applicant properly established his disability, we must turn to the
Board’s argument that applicant is still not entitled to disability pay because he failed to take
reasonable steps to remedy his condition. In support of this contention, the Board argues that under
the Workers’ Compensation Act, failure to undergo required rehabilitation can become a superseding
cause of disability and, thus, it was applicant’s failure to pursue rehabilitation aggressively enough,
not the original injury, that caused his disability. Applicant counters that the Workers’ Compensation
Act does not apply in Pension Code cases. In the alternative, applicant argues that even if the Pension
Code allowed for loss of benefits for refusal of medical treatment that would resolve the disability,
that penalty would not be applicable given the instant facts.
21
The two statutes at issue are the Workers’ Compensation Act (hereinafter the Act) and the
Illinois Pension Code (hereinafter the Code). The relevant portion of the Act states:
“If any employee shall persist in insanitary or injurious practices which tend
to either imperil or retard his recovery or shall refuse to submit to such medical,
surgical, or hospital treatment as is reasonably essential to promote his recovery, the
Commission may, in its discretion, reduce or suspend the compensation of any such
employee.” 820 ILCS 305/19(d) (West 2006).
There is no comparable provision in the Code.
Illinois courts have dealt with issues of rehabilitation and claims filed under the Act and the
Code. Two early cases were from the Illinois Supreme Court, Joliet Motor Co. v. Industrial Board
of Illinois, 280 Ill. 148, 117 N.E. 423 (1917), and Mt. Olive Coal Co. v. Industrial Comm’n, 295 Ill.
429, 129 N.E. 103 (1920). In Joliet, a worker who injured his eye in the course of his work sought
workers’ compensation. Although doctors recommended operation with a 75% chance of full
recovery, the employee refused surgery. Joliet, 280 Ill. at 149-50, 117 N.E. at 424. Our supreme
court held the refusal of medical treatment constituted the sole operative cause of the claimant’s
condition, so claimant was not entitled to compensation. Joliet, 280 Ill. at 151, 117 N.E. at 424. In
Mt. Olive, an employee who broke his arm during work refused to undergo a safe and simple
procedure that would have corrected the problem. Mt. Olive, 295 Ill. at 430-31, 129 N.E. at 104.
The supreme court held that the accident entitled the employee to an award of temporary total
disability under the Act, but that the permanent disability award to the employee was in error, because
the permanent disability resulted from his refusal to submit to the operation as opposed to the original
accident. Mt. Olive, 295 Ill. at 433, 129 N.E. at 105.
22
The interpretation of the Act from the Mt. Olive and Joliet cases was applied by an appellate
court to the Code in Mulack v. Hickory Hills Police Pension Board, 252 Ill.App.3d 1063, 625 N.E.2d
259 (1993). In Mulack, a police officer injured his knee chasing a suspect, and with one doctor
recommending operating on the knee and another doctor recommending physical therapy, the pension
board awarded the officer temporary disability but required him to undergo surgery before it would
award permanent disability. Mulack, 252 Ill.App.3d at 1067, 625 N.E.2d at 262. The officer refused
surgery and stayed in physical therapy, prompting the board to terminate his disability payments after
it found that the refusal of surgery caused the disability to continue. The Mulack court began by
noting that although the Code lacked any provision comparable to section 19(d) of the Act, it found
the Joliet and Mt. Olive cases applicable to a determination of whether a duty injury resulted in a
claimant’s disability under the Code. Still, the court held that the record did not support the board’s
finding that the officer refused surgery unreasonably and in light of the conflicting medical opinions,
ordered the payment of the disability benefits. Mulack, 252 Ill.App.3d at 1071, 625 N.E.2d at 265.
More on point with the facts before this court in the instant case is Luchesi v. Retirement
Board of the Firemen’s Annuity & Benefit Fund of Chicago, 333 Ill.App.3d 543, 776 N.E.2d 703(2002). In that case, a firefighter was denied a disability pension following an on-the-job accident
because the firefighter refused to undergo physical therapy following shoulder surgery. The pension
board claimed that the firefighter’s failure to perform physical therapy constituted an intervening
cause, breaking the causal connection between the initial shoulder injury and the disability. Luchesi,
333 Ill.App.3d at 544-45, 776 N.E.2d at 705.
The Luchesi court agreed with Mulack that Joliet and Mt. Olive guide the interpretation of
23
whether a claimant’s disability resulted from an act of duty within the meaning of the Code. Luchesi,
333 Ill.App.3d at 553, 776 N.E.2d at 712. However, in those cases the evidence supported the
conclusion that if the claimant had undergone the recommended surgery, he would have regained use
of his injured part so that he could fully return to work. Luchesi, 333 Ill.App.3d at 553, 776 N.E.2d
at 712. In Luchesi, on the other hand, the doctor testified that he could not determine the likely result
if the firefighter had kept going to therapy. The court noted that if the firefighter had sought
compensation under the Act, rather than benefits under the Code, his failure to follow through with
physical therapy would have qualified under section 19(d) for the reduction or suspension of
compensation. Luchesi, 333 Ill.App.3d at 554, 776 N.E.2d at 713. But, the court went on, failure
to follow through with the therapy does not warrant the denial of individual compensation altogether,
because the evidence did not show that the refusal of treatment counted as the sole cause of his
condition. Luchesi, 333 Ill.App.3d at 554, 776 N.E.2d at 713.
The Luchesi court stated that the Code “differs markedly” from the Act by the absence of any
provision similar to section 19(d). Luchesi, 333 Ill.App.3d at 554, 776 N.E.2d at 713. From the use
of different provisions, the court presumed that the legislature intended different results to follow
because the legislature sought to provide greater protections to firefighters and police officers than
those provided in the Act for other kinds of employees. Luchesi, 333 Ill.App.3d at 554, 776 N.E.2d
at 713. The court noted that the Code left injured firefighters and officers with full disability benefits,
even if they refused medical treatment. Luchesi, 333 Ill.App.3d at 555, 776 N.E.2d at 713. Mulack
identified a qualification of the general rule: if the refusal of treatment rises to the level of a
superseding cause of continuing disability, then the Code permits denial of benefits. But where, as
in Luchesi, the record lacked evidence that the claimant would have recovered the ability to work as
24
a firefighter or police officer if he had all recommended treatment, the refusal constitutes only one
of several causes of continuing disability. The court concluded by holding, in accord with the
legislative intent to provide greater protection for police and firefighters, absent proof that the
firefighter would have fully recovered if he had all recommended treatment, his refusal of treatment
does not justify any reduction in benefits under the Code. Luchesi, 333 Ill.App.3d at 555, 776 N.E.2d
at 713.
We find the reasoning and analysis employed by the court in Luchesi sound and adopt it to
guide our own analysis in the present case. There is evidence in the record, such as the June 2005
reports of Drs. Thometz and Moisan that further improvement of applicant’s shoulder would require
further physical rehabilitation. That is also the opinion of Dr. Panuska. However, another doctor,
Dr. Malik, stated in his June 27, 2005, letter, that applicant was permanently disabled. Further,
applicant did state that he had undergone some physical therapy, such as home exercises, after the
surgery, but had to discontinue the therapy due to increased pain and, most importantly, the failure
of workers’ compensation to pay the medical bills. Also, there is no definitive statement from any
of the doctors that examined applicant postsurgery that applicant’s failure to continue with the
therapy had become a superseding cause of the disability, but rather, as the doctors’ indicated, it may
have been just one cause of several, such as the original accident, that contributed to applicant’s
continuing disability. See Luchesi, 333 Ill.App.3d at 555, 625 N.E.2d at 713. Dr. Panuska himself,
on whom the Board placed much of the basis for its decision, admitted during questioning that it was
unlikely applicant would improve 100%, even with rehabilitation. Therefore, we find the Board was
in error when it denied applicant disability benefits because he had not pursued physical therapy
aggressively enough. The evidence in this case indicates that the failure to aggressively pursue
25
rehabilitation was not a superseding cause of his continuing disability.
The decision of the Board denying disability benefits to applicant, who was injured in the line
of duty, was against the manifest weight of the evidence. Also, the Board erred when it denied him
benefits when it decided he had not pursued physical therapy aggressively enough. The decision of
the Board that the applicant failed to take reasonable steps to remedy his condition is against the
manifest weight of the evidence. Applicant met his burden to prove he is disabled from his duties as
a firefighter due to a job-related injury and thus entitled to disability benefits. The decisions of the
circuit court and Board are reversed and the case is remanded to the Kankakee Firefighters’ Pension
Board with direction to enter an order granting the application for line of duty benefits and any other
relief to which the applicant is entitled.
Reversed and remanded.
LYTTON, P. J. and MCDADE, J. concurring.
26