Olson v. Lombard Police Pension Fund ( 2020 )

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Appellate Court Date: 2020.06.03
20:17:41 -05'00'
Olson v. Lombard Police Pension Fund, 2020 IL App (2d) 190113
Appellate Court TERRY OLSON, Plaintiff-Appellant, v. THE LOMBARD POLICE
Caption PENSION FUND and THE VILLAGE OF LOMBARD, Defendants-
Appellees.
District & No. Second District
No. 2-19-0113
Rule 23 order filed December 5, 2019
Motion to
publish allowed January 23, 2020
Opinion filed January 23, 2020
Decision Under Appeal from the Circuit Court of Du Page County, No. 18-MR-731;
Review the Hon. Bonnie M. Wheaton, Judge, presiding.
Judgment Affirmed.
Counsel on Jerome F. Marconi, of Chicago, for appellant.
Appeal
Charles H. Atwell, of Atwell & Atwell Law Offices, of Aurora, for
appellee Lombard Police Pension Fund.
James V. Ferolo and Carmen P. Forte, of Klein, Thorpe & Jenkins,
Ltd., of Chicago, for other appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Birkett and Justice Schostok concurred in the
judgment and opinion.
OPINION
¶1 This administrative review action was brought by plaintiff, Terry Olson, from the denial of
his application for a line-of-duty disability pension, pursuant to section 3-114.1 of the Illinois
Pension Code (Code) (40 ILCS 5/3-114.1 (West 2018)) by defendant, the Lombard Police
Pension Fund, through an action of its Retirement Board (Board). The Board allowed the
Village of Lombard (Village) to intervene in the proceedings. The Board determined, by a
preponderance of the evidence, that plaintiff’s disability to his lower back was neither caused
by, nor aggravated by, his on-duty activities on September 18, 2013. The Board denied plaintiff
line-of-duty benefits. The trial court affirmed the Board’s decision. Plaintiff appeals the
Board’s finding denying his application for line-of-duty disability benefits. We affirm.
¶2 I. BACKGROUND
¶3 Plaintiff filed an application for a line-of-duty disability pension on July 29, 2015, based
on an incident that occurred at work on September 18, 2013 (the incident). Plaintiff alleged
that on that date he sustained injuries to his lower back and to his left leg while engaged in a
foot chase to apprehend a criminal suspect.
¶4 Plaintiff had been a Lombard police officer since July 6, 1987, working for approximately
29 years. While a police officer, plaintiff also owned and operated a construction company
involving excavation and demolition work. Plaintiff testified that his side business was
authorized by the Lombard Police Department (Department). He stated that after the incident,
he did not perform any heavy-duty work.
¶5 Prior to the incident, plaintiff had experienced back pain three times. In 1998, plaintiff
injured his back in a car accident. In February 2001, plaintiff experienced “sharp” lower back
pain while removing his gun from its holster. He had to seek treatment in the Good Samaritan
Hospital emergency room. In June 2013, approximately three months prior to the incident,
plaintiff sought treatment at Edward Hospital for severe lower back pain that he experienced
after walking in his kitchen and reaching for coffee from his microwave. At the hospital,
plaintiff mentioned that he had been dealing with back pain intermittently for 15 years.
¶6 On September 18, 2013, while on duty, plaintiff responded to the scene of a residential
burglary. When he arrived at the scene, plaintiff saw the suspect, who immediately fled.
Plaintiff chased the suspect over a sidewalk, an asphalt parking lot, an asphalt roadway, grass,
dirt, a concrete curb, and a parkway. With the help of two officers, plaintiff apprehended the
suspect but fell to the ground in the process. Plaintiff stated that, while chasing the suspect, he
felt a sharp pain in his left leg. Plaintiff stated that his leg pain worsened, and he started to feel
back pain. After he apprehended the offender, plaintiff could not stand due to the pain. A
supervisor called for paramedics. The ambulance report shows that plaintiff complained of
pain in his leg, but there is no evidence of any complaint about his back.
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¶7 Plaintiff was treated in the emergency room of Elmhurst Hospital. He testified at the
hearing before the Board that during his treatment, he alerted the medical staff of an injury to
his lower back. Plaintiff testified that the emergency physician attended to his leg, “flipped”
him over, and attended to his “backside [sic].”
¶8 The emergency room records, however, reveal no treatment or examination of plaintiff’s
lower back. The records reflect a diagnosis of only a “left hamstring strain.” During cross-
examination, plaintiff conceded that, while at the emergency room, he did not receive treatment
to his lower back or a diagnosis regarding his lower back.
¶9 On September 25, 2013, plaintiff completed and filed with his employer an “Illinois Form
45: Employer’s First Report of Injury.” Plaintiff reported that he sustained an injury to his left
leg. Counsel stated during oral argument that plaintiff also noted on the form that he sustained
an injury to his back. However, there is no evidence in the record to support counsel’s claim.
Also, according to the Board’s decision and order, plaintiff testified that he assisted in the
preparation of an “Employee Statement of Incident,” stating that, during the pursuit and
struggle, he suffered a left hamstring pull and back pain.
¶ 10 A. Dr. William Galassi
¶ 11 Plaintiff testified that on September 25, 2017, five days after the incident, he was treated
by Dr. William Galassi at Elmhurst Occupational Health. Galassi recommended that plaintiff
follow up with physical therapy. Plaintiff testified that during that visit, he complained about
his back. However, Galassi’s records do not reflect any diagnosis or treatment relating to a
back problem. On cross-examination, plaintiff admitted that Galassi provided treatment only
for his left hamstring. Galassi saw plaintiff again about eight weeks after the incident, and he
treated plaintiff for his left hamstring and knee pain.
¶ 12 B. Dr. Robert Hurst
¶ 13 Also, on September 23, 2013, plaintiff’s internist, Dr. Robert J. Hurst, treated plaintiff.
Although plaintiff testified that he complained about his back, Hurst’s records do not mention
any back pain experienced by plaintiff as a result of the incident.
¶ 14 C. Physical Therapy
¶ 15 Records from Athletico Physical Therapy (Athletico) reflect that plaintiff underwent
physical therapy approximately 37 times from October 3, 2013, through January 6, 2014. At
the hearing before the Board, plaintiff stated that he complained to Athletico during his initial
evaluation about the discomfort in his left leg, left calf, left side, and back. The Athletico intake
record confirms that plaintiff reported back pain. Plaintiff testified that, during his physical
therapy, his left leg pain improved; however, his back pain became worse. Although the
Athletico records do not reveal that plaintiff received any therapy or treatment to his lower
back during his visits, they show a few instances where he complained of back pain during his
treatment. For example, plaintiff complained of back pain on December 23, 2013, January 6,
2014, and March 5, 2014, when the therapist noted that plaintiff was discharged from physical
therapy and directed to another provider for continued treatment of lower back symptoms.
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¶ 16 D. Dr. Bonnie McManus
¶ 17 On October 19, 2013, plaintiff was treated by Dr. Bonnie McManus at Elmhurst
Occupational Health. Plaintiff testified that he complained about his back, but the records show
no complaints about his back. McManus initially treated plaintiff for knee pain, which was the
result of a kneecap twist during therapy.
¶ 18 E. Dr. Christos Giannoulias
¶ 19 On November 26 and December 10, 2013, Dr. Christos Giannoulias of G&T Orthopedics
and Sports Medicine treated plaintiff for knee and leg pain. Those records do not reflect any
complaints relating to plaintiff’s back.
¶ 20 F. Dr. Jerome L. Kolavo
¶ 21 On January 31, 2014, the Village, per plaintiff’s workers’ compensation claim, referred
plaintiff to Dr. Jerome L. Kolavo, a pain specialist. Plaintiff testified that he told Kolavo that
he had severe back pain on the date of the incident when he left the scene in the ambulance.
Kolavo treated plaintiff with injections for his back. Kolavo’s records of January 31, 2014,
show that plaintiff denied that he had any “significant” history of lower back pain prior to the
incident. Kolavo recommended physical therapy for leg and back pain, and plaintiff underwent
treatment by Momentum Physical Therapy, from approximately February 6 to May 6, 2014.
¶ 22 G. Dr. Dalip Pelinkovic
¶ 23 Plaintiff testified that the therapists and the doctors had concluded from their notes that his
back condition had plateaued. On September 23, 2014, about one year after the incident,
plaintiff underwent surgery to his lower spine: an L4-5 transforaminal lumbar interbody fusion
performed by Dr. Dalip Pelinkovic. Pelinkovic never opined that the incident made the back
surgery necessary.
¶ 24 H. Dr. Scott Player
¶ 25 The Village sent plaintiff to Dr. Scott Player for an independent medical examination.
Player examined plaintiff on May 28, 2014, and reported that plaintiff denied “performing any
other work activities or recreational pursuits.” Plaintiff also denied having a history of lower
back problems before the incident. Player observed plaintiff, without plaintiff’s knowledge, as
he exited his office and walked about 150 feet toward the parking lot. Player stated that plaintiff
demonstrated a fluid and flowing gait, with no hesitation as he walked hand in hand with his
wife away from the office building, but when plaintiff became aware of Player watching him,
plaintiff demonstrated a hesitant gait that resolved when he was unaware of observation. When
asked on cross-examination if he feigned a limp, plaintiff eventually replied “No.” Player
found that plaintiff’s symptoms were no longer related to the incident. He did not recommend
further treatment, including surgery, in connection with the incident. Player believed that
plaintiff’s complaints stemming from the incident involved soft tissue and should have been
resolved within a few months.
¶ 26 Player saw plaintiff a second time and issued another report on September 14, 2015, after
plaintiff had undergone back surgery. Player noted that plaintiff’s “current subjective
complaints include lower back and primarily left leg symptoms, ‘[w]hich are the same, if not
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a hair worse’ than preoperatively.” In Player’s opinion, based upon a reasonable degree of
medical certainty, the surgery performed on September 27, 2014, by Pelinkovic was necessary
and the result of the work incident. He opined that plaintiff’s current pain in his lower back
and left leg was related to the work incident, and there was no other cause of plaintiff’s current
pain and his previous need for surgery.
¶ 27 I. Dr. Edward Goldberg
¶ 28 The Village requested that plaintiff be independently examined by Dr. Edward Goldberg
of Midwest Orthopedics at Rush. He examined plaintiff on August 31, 2016, and on April 15,
2017, after reviewing his X-rays and diagnostic films, Goldberg reported that plaintiff denied
any previous lumbar problems. Goldberg concluded that plaintiff’s condition was not due to
the work incident but due to his failed spinal fusion at L4-5. He disagreed with Pelinkovic that
plaintiff’s surgery was required to treat spondylolisthesis, finding no evidence of it where the
surgery took place.
¶ 29 J. Independent Medical Evaluations
¶ 30 Pursuant to section 3-115 of the Code (40 ILCS 5/3-115 (West 2018)), the Board selected
Drs. Daniel G. Samo, Krzysztof Siemionow, and Tom D. Stanley to examine plaintiff. The
physicians reviewed plaintiff’s complete medical records, application for disability benefits,
and injury reports.
¶ 31 1. Dr. Daniel G. Samo’s Report
¶ 32 Samo’s report, dated July 24, 2017, stated that it was certainly possible that plaintiff’s
disability was based on his subjective complaints of pain during various activities. Samo
further stated that it was certainly possible that plaintiff would have pain following his fusion
surgery. However, Samo believed that the various inconsistencies in plaintiff’s history and
physical findings made plaintiff’s subjective complaints unreliable. Samo opined that if
plaintiff was disabled by his pain, his unsuccessful back surgery was likely the cause. Samo
did not know why plaintiff needed surgery at all and agreed with Goldberg’s assessment. He
noted that the initial injury was a hamstring strain that would not have been related to any of
plaintiff’s back problems, that plaintiff related that he started experiencing back pain at least
two months after the incident, and that this started sometime in the winter of 2013. On cross-
examination, plaintiff appeared to struggle with an answer as to why he told Samo that his back
pain started two months after the incident, when he had told multiple other physicians that he
experienced back pain immediately after the incident.
¶ 33 2. Dr. Krzysztof Siemionow’s Report
¶ 34 Siemionow examined plaintiff on July 27, 2017. Plaintiff told Siemionow that he “felt
severe pain in his back and in his left lower extremity as a result of this [incident] and
eventually ended up being transferred to Elmhurst Hospital.” Siemionow did not feel that
plaintiff could perform full-duty police work and that “[t]hese restrictions would more likely
than not be permanent.” Siemionow did not offer any other opinions.
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¶ 35 3. Dr. Tom D. Stanley’s Report
¶ 36 Stanley’s July 20, 2017, report shows plaintiff stated that he “didn’t have any back
problems immediately prior to the work incident.” Stanley asked him “about going to the
emergency room for his lower back a few months before his work incident, and he had no
recollection of it. In fact, he asked to see the records since he didn’t believe that it happened.”
Stanley noted that plaintiff eventually underwent lower back surgery, which made the pain
worse, and that plaintiff was offered additional surgery, but he did not want it. Stanley stated
that plaintiff had chronic lower back pain, that plaintiff could not return to his job as a police
officer, and that his disability was permanent. As to causation, Stanley noted the following in
his report:
“Dr Kolavo felt that [plaintiff’s] symptoms could not be explained by his imaging
findings. Dr. Pelinkovic determined that [plaintiff] had radiculopathy secondary to an
L4-5 spondylolisthesis. I cannot rectify the discrepancy from the records that were
available to me and therefore I cannot provide a definitive causation determination.
Dr. Kolavo’s records suggest that the injury diagnosis is a lumbar strain. If
[plaintiff] sustained a lumbar strain, the fusion surgery would be for low back arthritis
unrelated to the work event. Therefore[,] his current disability would also be unrelated
to the work event.
Dr. Pelinkovic’s diagnosis of lumbar radiculopathy secondary to spondylolisthesis
would represent an aggravation of preexisting low back arthritis necessitating surgery
and resulting in the current disability.”
¶ 37 Plaintiff testified that he continued to have pain in his back and that he did not believe that
he could return to full service for the Department. After the injury in question, he had not
performed any heavy-duty work, such as swinging a sledgehammer or lifting large, heavy
objects.
¶ 38 K. The Board’s Decision
¶ 39 The Board concluded that the evidence established plaintiff had a preexisting history of
lower back complaints and discomfort, but that these issues were neither caused nor
exacerbated by the incident or any “act of duty,” as necessary for establishing entitlement to
“line-of-duty” disability pension benefits under section 3-114.1. Accordingly, the Board
denied plaintiff line-of-duty disability pension benefits. The Board based its denial on its
findings that plaintiff failed to report his back pain following the incident, he lacked credibility,
and his back pain was due to current and preexisting issues unrelated to the incident. However,
the Board determined that plaintiff was physically disabled from performing full-unrestricted
duties of a police officer for the Department by reason of his lower back limitations and
restrictions, entitling him to “not on duty” disability pension benefits pursuant to section 3-
114.2 of the Code (40 ILCS 5/3-114.2 (West 2018)).
¶ 40 Plaintiff sought review of the Board’s decision in the trial court, arguing that the factual
findings were contrary to the manifest weight of the evidence. The trial court found that the
decision of the Board was not against the manifest weight of the evidence and affirmed the
decision of the Board. Plaintiff timely appeals.
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¶ 41 II. ANALYSIS
¶ 42 No one disputes that plaintiff is permanently disabled and that he suffered an injury on
September 18, 2013, during an act of duty. The issue on review is whether plaintiff’s lower
back condition, which is the basis of his permanent disability, was caused or aggravated by the
act of duty. This is a factual issue which the Board resolved against plaintiff. Plaintiff appeals
this finding.
¶ 43 Under section 3-110 of the Administrative Review Law (735 ILCS 5/3-110 (West 2018)),
the findings and conclusions of an administrative agency on questions of fact are held to be
prima facie true and correct and must be affirmed unless they are contrary to the manifest
weight of the evidence. Thurow v. Police Pension Board, 180 Ill. App. 3d 683, 686 (1989).
“Factual findings are against the manifest weight of the evidence only where ‘it is clearly
evident the [agency] erred and should have reached the opposite conclusion.’ ” Coyne v. Milan
Police Pension Board, 347 Ill. App. 3d 713, 721 (2004) (quoting Board of Education of Round
Lake Area Schools v. State Board of Education, 292 Ill. App. 3d 101, 109 (1997)). “The mere
fact that an opposite conclusion is reasonable or that the reviewing court might have ruled
differently will not justify reversal of the administrative findings.” Turcol v. Pension Board of
Trustees of Matteson Police Pension Fund, 359 Ill. App. 3d 795, 801 (2005). “If the record
contains evidence that supports the agency’s decision, it should be upheld.” Id.
¶ 44 To obtain a line-of-duty disability pension, a plaintiff must prove that the duty-related
injury “ ‘is a causative factor contributing to the claimant’s disability.’ ” Scepurek v. Board of
Trustees of the Northbrook Firefighters’ Pension Fund, 2014 IL App (1st) 131066, ¶ 27
(quoting Luchesi v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 333 Ill. App.
3d 543, 550 (2002)). A disability pension may be based upon the line-of-duty aggravation of a
preexisting physical condition. See Alm v. Lincolnshire Police Pension Board, 352 Ill. App.
3d 595, 598 (2004). The duty-related incident need not be the originating or primary cause of
the injury, but a sufficient nexus between the injury and the performance of the duty must exist.
Barber v. Board of Trustees of the Village of South Barrington Police Pension Fund, 256 Ill.
App. 3d 814, 818 (1993).
¶ 45 In rejecting plaintiff’s claim that there existed a causal nexus between his lower back
disability and the incident, the Board relied in part on plaintiff’s failure to complain of lower
back pain after the incident. The manifest weight of the evidence supports the Board’s findings.
The ambulance and emergency room reports did not identify any complaints by plaintiff about
his back; they referred to pain only in plaintiff’s leg and calf. There were no reports or records
of back pain from the physicians who treated plaintiff shortly after the incident. Plaintiff did
not receive physical therapy for his lower back during his 37 visits at Athletico. From
September 18, 2013, through January 2014, plaintiff’s treatment was solely for his leg injury.
¶ 46 The Occupational Health Services registration form, the Athletico intake, the “Employee
Statement of Incident,” and plaintiff’s testimonial reference to reports of back pain in the
“Illinois Form 45: Employer’s First Report of Injury” show plaintiff as having reported that he
injured his left leg, knee, foot, and back. However, his overall lack of reporting of his back
pain to the earliest treaters supports the Board’s finding that the on-duty incident was not a
causative factor contributing to plaintiff’s disability.
¶ 47 This case, like most disability pension cases, turns on the medical testimony. Here, there
is additional evidence supporting the Board’s finding that plaintiff’s back issues were
preexisting and that his disability was neither caused nor exacerbated by the incident or any
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“act of duty” necessary for establishing a “line of duty” disability. Goldberg opined that
(1) plaintiff’s back problems were due to a failed spine surgery, (2) plaintiff had degenerative
arthritis, (3) the surgery by Pelinkovic was unnecessary, and (4) any subsequent treatment
would be due to the failed surgery—not because of the incident. Samo agreed with Goldberg’s
opinion. He stated that the initial injury was to plaintiff’s hamstring and was not related to any
back problems, which began two months after the incident. Stanley concluded that he could
not definitively determine causation. He noted that Kolavo’s records suggested that the injury
diagnosis was a lumbar strain. However, if plaintiff sustained a lumbar strain, “the fusion
surgery would be for lower back arthritis unrelated to the work event. Therefore[,] his current
disability would also be unrelated to the work event.”
¶ 48 As stated, Player initially found that plaintiff’s symptoms were no longer related to the
incident and he did not recommend further treatment. But, in a later report, Player stated,
without explaining why, that plaintiff’s surgery was necessitated by the incident. These
conflicting reports justified the Board’s rejection of Player’s later opinion.
¶ 49 It was for the Board to determine which medical opinion was to be accepted. Faced with
conflicting evidence, the Board, as the finder of fact, assessed the credibility of the
documentary information and the witness testimony to determine the appropriate weight to
give that evidence. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540
(2006). In this case, there was competent medical evidence—in the form of the medical
opinions of Drs. Goldberg, Samo, and Stanley—supporting the Board’s conclusion that
plaintiff suffered from chronic lower back pain and disability and that his disability was not
aggravated by the incident.
¶ 50 The Board also found that plaintiff was not credible. The Board focused on plaintiff’s three
prior documented incidents relative to his lower back, the last of which occurred a mere three
months prior to the September 18, 2013, incident. During that treatment, plaintiff reported that
he had been having lower back issues for 15 years. However, plaintiff denied prior back
problems to Drs. Kolavo, Player, Stanley, Siemionow, and Goldberg. Furthermore, plaintiff
was untruthful to his treaters regarding his work history. Plaintiff also gave conflicting reports
to his treaters concerning his pain at the time of the incident. He reported to Drs. Goldberg and
Siemionow that his back pain began immediately. But plaintiff told Samo that his pain did not
start until two months later. We will not disturb the Board’s credibility findings against plaintiff
as they are based on the evidence. See Lambert v. Downers Grove Fire Department Pension
Board, 2013 IL App (2d) 110824, ¶ 49 (McLaren, J., dissenting).
¶ 51 Plaintiff argues that this case is “strikingly similar” to Devaney v. Board of Trustees of the
Calumet City Police Pension Fund, 398 Ill. App. 3d 1 (2010), a case in which the First District
Appellate Court reversed the pension board’s denial of a line-of-duty pension. We disagree.
¶ 52 In Devaney, the plaintiff had suffered from a preexisting degenerative disk disease prior to
becoming a police officer. Id. at 2. After joining the police force, the plaintiff engaged in a
physical altercation with a suspect. The plaintiff failed to initially report his back injury. Id. He
was placed on work restrictions, and after surgery, he could not to return to full duty or serve
in any other capacity as a police officer. Id. at 4. The plaintiff had an 18-year documented
history of back problems, but he had been released to full duty and had performed his job as a
police officer for two years before the incident. Id. at 10. Additionally, the three Board-selected
doctors opined that the plaintiff’s current back problems were due to the incident, and there
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was no contrary medical evidence. Id. There was abundant medical evidence that the incident
aggravated the plaintiff’s degenerative disk disease.
¶ 53 In contrast, here, plaintiff’s last documented occurrence of back pain was three months,
not two years, before the incident. Plaintiff’s debilitating back has never resolved. Also, two
doctors opined that plaintiff’s present condition was due to a failed surgery and not the incident.
The only doctor with a contrary opinion had issued conflicting reports, which the Board was
free to reject.
¶ 54 We find the holdings of Covello v. Village of Schaumburg Firefighters’ Pension Fund,
2018 IL App (1st) 172350, and Carrillo v. Park Ridge Firefighters’ Pension Fund, 2014 IL
App (1st) 130656, support an affirmance of the Board’s decision. In Covello, the plaintiff
claimed he could no longer work as a firefighter because he suffered from post-traumatic stress
disorder (PTSD), triggered by a specific duty-related incident. The Board found that the
plaintiff did not meet his burden of establishing a causal connection between his preexisting
conditions and a specific act of duty. Covello, 2018 IL App (1st) 172350, ¶ 48. Every doctor
who examined the plaintiff agreed that he was disabled; however, they disagreed as to whether
he suffered from PTSD due to an act of duty. Id. ¶ 45.
¶ 55 The Appellate Court, First District, affirmed, finding that the record amply supported the
Board’s factual finding that an act of duty was not a causative factor contributing to the
plaintiff’s permanent disability. Id. ¶ 10. The court noted that it “must affirm the Pension
Board’s decision when there is competent evidence in the record supporting the decision.” Id.
¶ 48. The court further reasoned that the opinions of the independent evaluating doctors and
the plaintiff’s actions following the incident, which demonstrated no impact on either his
physical or mental well-being, collectively supported the Board’s decision awarding a nonduty
disability pension. Furthermore, the court found that the Board was entitled to consider the
plaintiff’s misleading statements to certain evaluators; specifically, that he sought treatment
only after the incident. Id. Accordingly, the court determined that the Board’s finding—that
the plaintiff did not meet his burden of establishing a causal connection between his preexisting
conditions and a specific act of duty—was supported by the record and not against the manifest
weight of the evidence. Id.
¶ 56 In Carillo, the plaintiff, a firefighter/paramedic, sought disability benefits based on
degenerative arthritis of the left knee that rendered her unable to work. Prior to her
employment, she had undergone two arthroscopic surgeries to her left knee during high school
and college. Carillo, 2014 IL App (1st) 130656, ¶ 5. She began working in 2000 and claimed
she injured her left knee on the job in 2002, 2005, and 2006, but she returned to work with no
restrictions after each. Id. ¶¶ 7-9. She claimed disability in 2011. Id. ¶ 10.
¶ 57 The First District Appellate Court affirmed the Board’s decision denying line-of-duty
disability. In each of the three on-duty incidents cited by the plaintiff, the record showed that
the plaintiff recovered and returned to full, unrestricted duty as a firefighter/paramedic. After
the last of these incidents, she was able to perform her duties for nearly five years with no
apparent problem until she began to spontaneously experience difficulties with her left knee.
Id. ¶ 26. Moreover, the Carillo medical evidence was divided on the issue of causation, and
the Board chose to believe the opinions of two doctors rather than the opinions of the remaining
four doctors. Although the Board’s decision to deny benefits reflected the minority viewpoint
among the doctors who evaluated the plaintiff, the First District Appellate Court explicitly
approved of the Board’s reliance on the medical testimony from those two doctors. Id. ¶¶ 33-
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34. The court reasoned that the plaintiff had the burden of proving that an on-duty incident
either caused or aggravated her preexisting condition and that she failed to do so. Id. ¶ 27.
¶ 58 Here, plaintiff has similarly failed to meet his burden. There is no evidence in the record
that his preexisting degeneration was made worse by the work incident. Plaintiff’s medical
records show that his condition was symptomatic a mere three months prior to the incident.
Moreover, several of the independent medical examiners opined that plaintiff’s condition
appeared more consistent with symptomatic, chronic back pain. The Board was free to reject
plaintiff’s causal connection theory as lacking evidentiary support, given that (1) just three
months before the incident, plaintiff’s back was so painful that he went to the emergency room,
but after the incident he did not mention that he was experiencing any back pain until the end
of December 2013 at Athletico, (2) he did not seek treatment for back pain until February 2014,
and (3) his back surgery was not necessitated by reason of the work-related incident or any act
of duty.
¶ 59 Accordingly, we hold that the Board’s finding that plaintiff did not meet his burden of
establishing a causal connection between his preexisting condition and a specific act of duty
was supported by the record and not against the manifest weight of the evidence. We affirm
the Board’s decision because there is competent evidence in the record supporting the decision.
¶ 60 III. CONCLUSION
¶ 61 For the preceding reasons, we affirm the decision of the Board and the judgment of the
circuit court.
¶ 62 Affirmed.
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