Hoffman v. Orland Firefighters' Pension Board - Corrected

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hoffman v. Orland Firefighters’ Pension Board, 2012 IL App (1st) 112120Appellate Court ERIC HOFFMAN, Plaintiff-Appellee, v. ORLAND FIREFIGHTERS’
Caption PENSION BOARD; ORLAND FIREFIGHTERS’ PENSION FUND;
MEMBERS OF THE ORLAND FIREFIGHTERS’ PENSION BOARD
(George Shick, President; Nicholas Anastos, Secretary; Salvatore
Cacciato, Trustee; Glenn Michalek, Trustee; Robert Mitchell, Trustee;
Bryant Krizik, Fire Chief); and ORLAND FIRE PROTECTION
DISTRICT, Defendants-Appellants.
District & No. First District, Sixth Division
Docket No. 1-11-2120
Filed November 21, 2012
Held The termination of the work-related pension awarded to plaintiff
(Note: This syllabus firefighter in 2002 following a hearing held by defendant Pension Board
constitutes no part of in 2010 to determine whether plaintiff should continue to receive the
the opinion of the court pension was against the manifest weight of the evidence, regardless of the
but has been prepared testimony of the Board’s physician that plaintiff was never disabled, since
by the Reporter of evidence that plaintiff did not suffer a disabling injury did not amount to
Decisions for the proof of recovery as mandated by the Pension Code and plaintiff’s
convenience of the treating physician testified that plaintiff could not perform the duties of
reader.)
a firefighter.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-28719; the
Review Hon. Sophia Hall, Judge, presiding.
Judgment Affirmed.
Counsel on Cary J. Collins, of Collins & Radja, of Hoffman Estates, for appellants.
Appeal
Thomas W. Duda, of Law Offices of Thomas W. Duda, of Arlington
Heights, for appellee.
Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justice Hall concurred in the judgment and opinion.
Justice Gordon dissented in part, with opinion.
OPINION
¶1 The Orland Firefighter’s Pension Board (the Board) terminated the work-related
disability pension of plaintiff Eric Hoffman, a decision the circuit court reversed. The
plaintiff was awarded a disability pension by the Board in 2002 by a three to two vote,
following a 2001 injury he sustained while performing his firefighter duties. In 2010, the
Board held a hearing to examine whether the plaintiff should continue to receive his
disability pension. The plaintiff’s personal physician testified that the plaintiff remained
physically incapable of performing the full duties of a firefighter. The Board’s doctor, based
on his examination of the plaintiff and his review of the available medical records dating
back to the plaintiff’s original injury in 2001, testified that the plaintiff had no objective
manifestations of a physical disability and that his only ailment was a subjective claim of
pain. The Board’s doctor opined that the plaintiff was never rendered disabled by his 2001
injury. The Board terminated the plaintiff’s pension. The circuit court reversed, ruling that
the only evidence supporting the termination was that the plaintiff never sustained a
disability, which rendered the Board’s decision against the manifest weight of the evidence
because no proof was presented that the plaintiff had recovered from his disability. We agree
with the circuit court and affirm.
¶2 BACKGROUND
¶3 The plaintiff became a member of the Orland Fire Protection District, and the Orland
Firefighters’ Pension Fund, on March 30, 1992. On March 6, 2001, he injured his back
loading a 360-pound patient on a stretcher into an ambulance. Dr. Terrence Moisan, the
retained physician of the fire protection district, examined the plaintiff. On March 7, 2001,
Dr. Moisan ordered an X-ray and MRI of the plaintiff’s back. The results of the MRI were
“normal” and “negative for any disc herniation or degenerative disc change.” Dr. Moisan
prescribed physical therapy and referred the plaintiff to Dr. Richard Beaty, an orthopedic
surgeon. Dr. Beaty also prescribed physical therapy and referred the plaintiff to a pain
specialist, Dr. Scott Glaser, who administered epidural injections. The plaintiff continued
under Dr. Beaty’s care on a semiregular basis, with continued physical therapy. In May 2002,
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Dr. Beaty determined the plaintiff’s progress had “plateaued.”
¶4 On January 8, 2002, the plaintiff applied for duty-related disability benefits from the
pension fund. On January 9, 2002, the plaintiff underwent a functional capacity examination.
The examination revealed that he could not perform the duties of a firefighter; a four-week
conditioning program was recommended. After the plaintiff completed the conditioning
program, Dr. Beaty advised the plaintiff to undergo a second functional capacity
examination. He did so on June 12, 2002. The result of the second examination was that the
plaintiff could meet the demands of his job. Dr. Beaty, however, recommended that the
plaintiff return to work only under restrictions against bending or twisting.
¶5 A duty-related pension hearing was held over several days in May and July 2002. As
provided by statute, the plaintiff was examined prior to the hearing by three physicians
selected by the Board: Dr. Rajeev Khanna, Dr. Brian Svazas, and Dr. William Earman.
¶6 Dr. Khanna’s report stated that he did not “anticipate any permanent disability” and
estimated that the plaintiff could return to work in four to six weeks. He opined that the
plaintiff’s weight gain contributed to his back pain. The ordered X-ray disclosed “no
evidence of osteoarthritis or degenerative disc disease.”
¶7 In his report, Dr. Svazas noted that the MRI showed no sign of disc bulge or herniation.
He reported that the plaintiff did not comply with the home exercise program his physical
therapist prescribed. Dr. Svazas opined that the plaintiff suffered from a muscoloskeletal
issue, caused mostly by his weight gain. He did not believe the plaintiff was “permanently
disabled from fire service”; he felt the plaintiff was “capable of returning to fire fighting
duties.” He recommended a course of physical therapy.
¶8 Dr. Earman testified before the Board that the plaintiff was “suffering from a chronic low
back pain condition” based on his review of the MRI records, which revealed no
abnormality. Dr. Earman did not identify a physical cause of the pain because the plaintiff’s
records did not “indicate an etiological cause for his back discomfort.” His ultimate opinion,
however, was that the plaintiff was not able to perform the duties of a firefighter based on
the January 9, 2002 functional capacity evaluation and therefore was permanently disabled.
¶9 On July 31, 2002, the majority of the five-member Board voted to award the plaintiff a
duty-related disability pension.
¶ 10 Thereafter, pursuant to statute, the Board periodically requested the plaintiff undergo an
independent medical examination to determine whether he should continue to receive
pension benefits. On July 29, 2005, Dr. John Stamelos performed an examination of the
plaintiff, which revealed no objective findings to corroborate the plaintiff’s complaints of
back pain. Dr. Stamelos prescribed a functional capacity examination for the plaintiff. The
plaintiff’s personal physician, Dr. Beaty, advised the plaintiff that he could undergo the
functional capacity exam, but he should do so without exerting himself beyond the limits of
his pain. Dr. Stamelos opined that such a limitation would render the examination useless;
no functional capacity exam was performed. Ultimately, Dr. Stamelos concluded that the
plaintiff was unable to perform his duties as a firefighter “because of the restrictions placed
on him by his treating physician.” He stated, “At this time, it is my opinion that Mr. Hoffman
is permanently disabled from firefighter service because of continued pain and discomfort
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regarding his lower back, SI joint, as well as his issues regarding his shoulder.” The plaintiff
retained his disability pension.
¶ 11 In 2009, the Board requested the plaintiff undergo a medical examination by Dr. Martin
Lanoff, as the Board-selected physician. Upon examination of the plaintiff and review of his
medical records dating back to the injury to his back in 2001, Dr. Lanoff found no objective
basis for the plaintiff’s complaints of back pain. He could identify no “medical pathology”
to corroborate the pain. He wrote, “[The] physical examination findings have always been
negative from an objective standpoint and all imaging tests have been negative (and they
have been quite extensive) since the very beginning.” He characterized the diagnosis
assigned to the plaintiff as one of pain, “which is not a diagnosis, it is a complaint.”
¶ 12 Dr. Lanoff completed the Board’s “Physician’s Certification of Continuance of
Disability” form. To the question of whether the patient continued to be disabled to the point
he was unable to perform his duties, Dr. Lanoff checked “No.” The form requested an
explanation of “the nature of the member’s current injury/illness that prohibits him or her
from performing his or hr [sic] duties as a firefighter and/or officer.” Dr. Lanoff wrote, “No
disability.”
¶ 13 On January 27, 2010, the Board began a hearing on the plaintiff’s possible restoration to
service. Counsel for the plaintiff objected to the introduction of Dr. Lanoff’s report as
hearsay, in Dr. Lanoff’s absence. Dr. Lanoff was unavailable to testify by phone.
¶ 14 At the continued hearing on February 15, 2010, Dr. Beaty testified that he was the
plaintiff’s long-term treating doctor and was very familiar with the plaintiff’s condition. He
opined that returning the plaintiff to work under his current physical condition would put him
in danger as well as his coworkers.
¶ 15 On February 22, 2010, Dr. Lanoff’s testimony was taken by phone. The plaintiff also
testified. Dr. Lanoff testified to the contents of his written evaluation. He restated his opinion
that the plaintiff was not disabled. The following question and answer took place during Dr.
Lanoff’s cross-examination.
“Q. *** [J]ust to summarize the general thrust of your report–it’s your contention that
Mr. Hoffman was never disabled[?]
A. Correct. I don’t see any physical pathology. I see multiple and consistent, yet
persistent, subjective complaints. Yet everybody’s workups are negative. Nobody even
gives him much of a diagnosis.”
¶ 16 On June 9, 2010, the Board issued its decision and order terminating the plaintiff’s duty-
related disability pension, because “Eric Hoffman had recovered from the back injury from
which he was granted a disability.” The Board explained its decision: “The reports and
testimony from Dr. Lanoff as well as medical reports from the original hearing granting the
disability all note that the subjective complaints of Eric Hoffman are out of proportion to the
objective findings.” The plaintiff challenged the Board’s decision in the circuit court. After
reviewing the parties’ briefs and hearing oral arguments, the circuit court reversed the
Board’s decision as against the manifest weight of the evidence. The Board timely appeals.
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¶ 17 ANALYSIS
¶ 18 We review the decision of an administrative agency, not that of the circuit court. Bertucci
v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 351 Ill. App. 3d 368, 370
(2004). An appellate court should not “ ‘reweigh evidence or *** make an independent
determination of the facts.’ ” Provena Covenant Medical Center v. Department of Revenue,
236 Ill. 2d 368, 386 (2010) (quoting Kouzoukas v. Retirement Board of the Policemen’s
Annuity & Benefit Fund, 234 Ill. 2d 446, 463 (2009)). Under the applicable manifest weight
of the evidence standard, we reverse an agency’s factual determinations only if the opposite
conclusion is clearly evident. Abrahamson v. Illinois Department of Professional Regulation,
153 Ill. 2d 76, 88 (1992). “However, an administrative agency’s conclusions of law *** are
reviewed de novo.” Bertucci, 351 Ill. App. 3d at 370. Questions concerning statutory
construction are issues of law. Wade v. City of North Chicago Police Pension Board, 226 Ill.
2d 485, 510 (2007).
¶ 19 The Board argues that satisfactory evidence was before it to justify terminating the
plaintiff’s pension as provided by the Illinois Pension Code (the Code) (40 ILCS 5/1-101 et
seq. (West 2008)). The plaintiff asserts the Code is clear that a disability pension may only
be terminated “[u]pon satisfactory proof to the board that a firefighter on the disability
pension has recovered from disability.” (Emphasis added.) 40 ILCS 5/4-112 (West 2008).
According to the plaintiff, the Board’s evidence, at best, showed that he was never disabled,
as Dr. Lanoff concluded, which rendered the Board’s decision of June 9, 2010, a reversal of
its original 2002 decision that the plaintiff was disabled when he was awarded a duty-
disability pension. The plaintiff argues, consistent with the circuit court’s ruling, that the
termination of pension benefits is against the manifest weight of the evidence as no evidence
was presented to the Board during the February 2010 hearings that the plaintiff recovered
from the disability the Board found in 2002.
¶ 20 The Board’s contention in this case lends itself to analysis as a question of law and as a
question of fact. The legal question is whether the Code grants authority to the Board to
terminate pension benefits on a finding that the defendant was not disabled when he was
awarded pension benefits. The factual question is whether the Board’s termination decision,
grounded on Dr. Lanoff’s conclusion that the plaintiff was never disabled, is against the
manifest weight of the evidence. Because the Board claims it properly terminated the
plaintiff’s disability pension premised on Dr. Lanoff’s testimony that the plaintiff was never
disabled, we begin with whether the Code empowers the Board to terminate pension benefits
in the context of a “continuance of disability” hearing based on a medical finding that the
firefighter was never disabled. See 40 ILCS 5/4-112 (West 2008).
¶ 21 Question of Law
¶ 22 The Code provides that any firefighter injured in the line of duty, which renders the
firefighter “physically or mentally permanently disabled for service in the fire department,”
entitles the firefighter to a disability pension. 40 ILCS 5/4-110 (West 2008). The disability
that triggers a pension award must be “established by the board by examinations of the
firefighter *** by 3 physicians selected by the board and such other evidence as the board
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deems necessary.” 40 ILCS 5/4-112 (West 2008). Once a disability pension is awarded, an
annual medical examination is performed “prior to attainment of age 50 *** to verify
continuance of disability.” Id. “Upon satisfactory proof to the board that a firefighter on the
disability pension has recovered from disability, the board shall terminate the disability
pension.” Id. The Board may not terminate a disability pension “except in compliance with
the statutory requirements.” O’Brien v. Board of Trustees of the Firemen’s Fund, 64 Ill. App.
3d 592, 595 (1978).
¶ 23 Both parties cite the O’Brien decision. Without substantive discussion, the Board does
so in the negative: “O’Brien does not apply to this case.” The plaintiff quotes extensively
from O’Brien to support his contention that “the Pension Fund erred in terminating [his]
disability benefits.” We find O’Brien guides our decision here.
¶ 24 In O’Brien, a firefighter was awarded a line-of-duty disability pension by the Board of
Trustees of the Firemen’s Pension Fund of the City of East St. Louis (the City Board), when
he presented with “ ‘ulnar neuropathy,’ ” a condition manifested by a loss of sensation in the
hands. Id. at 593. According to one examining physician, the condition would permit the
firefighter “to perform light duties.” Id. The City Board passed a motion reinstating the
firefighter to active duty “with the provision that the job made available to him be one he
could perform.” Id. The firefighter did not accept the reinstatement, which prompted the City
Board to hold a full hearing on whether the firefighter should continue to receive a disability
pension. Id. Following the hearing, “the [City] Board found that he could perform light duties
and entered an order *** removing O’Brien from the pension rolls.” Id. at 593-94. O’Brien
appealed.
¶ 25 The Fifth District, in a majority opinion, concluded the issue before it was “whether the
[City] Board, having once granted a disability pension, can properly terminate that pension
if it subsequently decides that the fireman can perform an available job with the department
involving lighter duties than fighting fires, although the fireman’s original disability had not
changed in any way.” Id. at 595. The City Board had “stipulated that O’Brien had not
recuperated and that his neurological disability had not changed in any way.” Id. at 594.
Relying on express language in the Code, the court noted the City Board could terminate a
pension only “ ‘[u]pon satisfactory proof *** that a fireman *** has recovered from his
disability.’ ” (Emphasis in original.) Id. at 595 (quoting Ill. Rev. Stat. 1973, ch. 108½, ¶ 4-
112 (now 40 ILCS 5/4-112 (West 2008))). The court ruled, “[T]here must be some evidence
of recovery from the disability to justify the pension’s termination.” Id. at 596. The majority
grounded its ruling on the Code’s express language: “The statutory language unequivocally
sets forth the requirement that a fireman recover from his disabling illness *** before the
[City] Board can terminate the pension and reinstate the fireman into active service.” Id. at
595. Ultimately, the court reversed the City Board, concluding there was “no evidence [the
firefighter recovered from his disability] to support the revocation of O’Brien’s disability
pension pursuant to section 4-112 of the Illinois Pension Code.” Id. at 596.
¶ 26 As O’Brien made clear, the Code expressly provides a process to determine whether a
firefighter is fit to be restored to service. “Medical examination of a firefighter receiving a
disability pension shall be made at least once each year *** in order to verify continuance
of disability.” 40 ILCS 5/4-112 (West 2008). The Code bars examinations to verify
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continuance of disability “after age 50.” Id. Before a pension may be terminated, the Board
must have before it “satisfactory proof” that a pensioner “has recovered from disability.” Id.
¶ 27 A medical examination of the plaintiff by Dr. Lanoff was ordered by the Board in 2009
to address whether the plaintiff remained disabled. The Board scheduled a “continuance of
disability” hearing in February 2010 at which Dr. Lanoff’s testimony and report were
presented. However, Dr. Lanoff’s report never addressed whether the plaintiff had “recovered
from disability” as mandated by the Code. Id. The closest the report came to discussing the
plaintiff’s improvement from his disability was Dr. Lanoff’s answer to one of the questions
the Board’s attorney asked the report to address: “ ‘4. Whether this individual’s medical
condition will improve.’ ” Dr. Lanoff answered, “There is no condition to improve.” Nor did
Dr. Lanoff, in either direct or cross-examination, provide testimony that the plaintiff “has
recovered from disability.” In fact, when Dr. Lanoff was asked whether the “thrust of [his]
report *** [was] that Mr. Hoffman was never disabled,” Dr. Lanoff answered, “Correct.”
¶ 28 While the Board makes no explicit claim that the Code permits it to terminate the
plaintiff’s disability pension based on a medical report that concludes the plaintiff was never
disabled, its decision and order permit no other conclusion. According to the Board’s
decision, “the medical reports from the original hearing [in 2002] granting the disability all
note the subjective complaints of Eric Hoffman are out of proportion to the objective
findings.” The Board reasoned: “[There was no] objective medical reason for his disability;
therefore Plaintiff has ‘recovered’ from his disability.” The Board restated its reasoning in
relation to Dr. Lanoff’s report: “[The] report[ ] demonstrates that the Plaintiff has recovered
from any previous disability by [Dr. Lanoff’s] indication in his report that the Plaintiff had
‘no disability.’ ” The Board’s choice of language also bears contrasting with the language of
the Code. The Board claims in its decision that “Hoffman had recovered from the back injury
from which he was granted a disability.” (Emphasis added.) The Code speaks in terms of
“has recovered from disability.” (Emphasis added.) 40 ILCS 5/4-112 (West 2008). Use of
the past tense “had” by the Board leaves it uncertain when recovery occurred; use of the
present tense “has” in the Code denotes that a firefighter’s disability improved since the
firefighter was first awarded a pension or since the pensioner’s last “continuance of
disability” hearing. O’Brien, 64 Ill. App. 3d at 595 (the Code requires “a fireman recover
from his disabling illness *** before the Board can terminate the pension”).
¶ 29 The Code authorizes a pension board to request a pensioner undergo a medical
examination to determine whether the firefighter is physically capable of returning to active
service. The purpose of the medical examination, which is permitted annually, is to either
“verify continuance of disability” or provide “satisfactory proof” that the pensioner has
“recovered from disability.” 40 ILCS 5/4-112 (West 2008). No provision of the Code permits
a pension board to revisit and reverse its original decision, made years earlier but never
appealed, that a firefighter was rendered disabled by a line-of-duty injury. Cf. Godare v.
Sterling Steel Casting Co., 103 Ill. App. 3d 46, 51 (1981) (res judicata can apply to
administrative determinations in a proper case).
¶ 30 Nor does the Code authorize a board to conclude that a pensioner has recovered from the
disabling injury based solely on medical evidence that the firefighter was never actually
disabled. The Board’s position in this case would render pointless the Code’s requirement
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of “satisfactory proof” and render meaningless the phrase “recovered from disability,” if the
Board may terminate pension benefits based on an assessment that the pensioner was “never
disabled,” as Dr. Lanoff testified. The Board improperly equates Dr. Lanoff’s report and
testimony regarding the absence of medical reasons for the plaintiff’s disability with
“satisfactory proof *** that [the plaintiff] *** has recovered from his disability,” as the Code
mandates. 40 ILCS 5/4-112 (West 2008). We are presented with no authority under the Code
that the nonexistence of medical evidence showing a disability, based on the testimony and
report of the Board’s expert, is tantamount to satisfactory proof of recovery. Ultimately, the
Board feigns adherence to the Code while giving no substance to the Code’s requirement that
evidence be presented that the plaintiff “has recovered from disability” to terminate the
pension the Board awarded in 2002.
¶ 31 As a matter of law, the Code does not authorize the Board’s implicit contention that it
may revisit its initial decision to award the plaintiff a disability pension based on medical
evidence at a continuance of disability hearing, held years later, that the plaintiff was never
disabled. The Code does not authorize a board to terminate a pension, once given, based on
evidence that the firefighter was never disabled. The Code requires that proof of recovery be
shown. O’Brien, 64 Ill. App. 3d at 595.
¶ 32 Question of Fact
¶ 33 Our review of the Board’s contention as a question of fact compels the same
conclusion–no evidence of recovery renders the Board’s decision to terminate the pension
the plaintiff had been receiving for nearly a decade against the manifest weight of the
evidence. 40 ILCS 5/4-112 (West 2008) (satisfactory proof of recovery must be presented
to the pension board to terminate a pension); O’Brien, 64 Ill. App. 3d at 596 (“there must be
some evidence of recovery from the disability to justify the pension’s termination”).
¶ 34 The Board highlights in its brief its close decision in 2002 to award the plaintiff a
disability pension: “Three trustees voted to award the disability and two voted to deny the
disability.” The Board then discusses the medical evidence presented in 2002 and the
conclusions of the medical examination by Dr. Stamelos in 2005. Ultimately, the Board
argues that satisfactory proof that the plaintiff has recovered from his disability may be
gleaned from Dr. Lanoff’s examination of the plaintiff in 2009 and his conclusion that no
“objective basis for plaintiff’s disability” exists in the medical records dating back to the
original disability hearing.
¶ 35 The Board, however, ignores that in 2005, it voted to verify the continuance of the
plaintiff’s disability, which the Board found in 2002. It necessarily follows from the decision
in 2002 to award a pension and the subsequent decision in 2005 to reaffirm the plaintiff’s
disability that the medical records of the plaintiff from the hearings in 2002 and 2005 provide
no proof that the plaintiff recovered from his disability as of the “continuance of disability”
hearing in February 2010. See Hahn v. Police Pension Fund, 138 Ill. App. 3d 206, 211
(1985) (issue of disability should be addressed as of the date the plaintiff’s condition is at
issue, rendering testimony of psychiatrists that examined the plaintiff many months after his
separation from service “irrelevant”).
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¶ 36 Fundamentally, we reject the Board’s contention that Dr. Lanoff’s medical testimony and
report constitute evidence that the plaintiff recovered from his disability when Dr. Lanoff
unequivocally insisted that the plaintiff was never disabled. The Board tortures the English
language to contend that one can recover from a disability one never had. As we concluded
in addressing the legal question above, the Code does not authorize the Board to reexamine
its original award of disability to the plaintiff in 2002, which it reaffirmed in 2005, in its
“continuance of disability” hearing in 2010 based solely on evidence that the firefighter was
never disabled.
¶ 37 In sum, Dr. Lanoff’s report and testimony presented no evidence, much less satisfactory
proof, that the plaintiff recovered from his disability at the time of the continuance of
disability hearings in February 2010. The only evidence presented on the plaintiff’s physical
state as of February 2010 was Dr. Beaty’s testimony that the plaintiff was still physically
incapable of meeting the duties of a firefighter. The evidence at the hearing renders the
conclusion opposite to that reached by Board clearly evident. Abrahamson, 153 Ill. 2d at 88.
¶ 38 Because the Board presented no proof that the plaintiff recovered from his disability, he
remains entitled to his pension benefits. Under the Code, the Board may, on remand, direct
that the plaintiff undergo another medical examination to either “verify continuance of
disability” or provide “satisfactory proof” that the pensioner has “recovered from disability.”
40 ILCS 5/4-112 (West 2008). To terminate pension benefits, satisfactory proof must be
presented to the Board that the plaintiff has recovered from the disability the Board found
in 2002, and reaffirmed in 2005, assuming the plaintiff is still younger than age 50 at the time
any new examination is ordered. Id.¶ 39 CONCLUSION
¶ 40 As a matter of law, the Illinois Pension Code does not permit the Board to revisit and
reverse its original decision in 2002 granting a pension based on evidence presented at the
continuance of disability hearing in 2010 that the pensioner was never disabled. Proof that
the pension recipient never suffered disabling injury does not constitute proof of recovery as
mandated by the Code. The examining physician’s report and testimony that asserted only
that the plaintiff was never disabled renders the Board’s decision to terminate the pension
against the manifest weight of the evidence, in light of the treating physician’s testimony that
the plaintiff remained physically unable to meet the full duties of a firefighter. The Board
committed clear error in terminating the plaintiff’s pension where no evidence of recovery
was before it. We affirm the circuit court’s reversal of the Board’s decision.
¶ 41 Affirmed.
¶ 42 JUSTICE GORDON, dissenting.
¶ 43 I must respectfully dissent.
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¶ 44 BACKGROUND
¶ 45 Plaintiff, a firefighter, claimed that, on March 6, 2001, he suffered an injury to his back
while loading a stretcher with a 360-pound patient into an ambulance. Initially, plaintiff
received X-rays and an MRI of his back, which were “normal” and negative for any disc
herniation or degenerative disc change. Plaintiff complained of pain and was treated with
physical therapy by an orthopedic surgeon, Dr. Richard Beaty. However, plaintiff still
complained of pain. He was then referred to a pain specialist, who performed epidural
injections. Plaintiff also continued to receive physical therapy and entered and completed a
work-hardening program. Plaintiff continued to complain of pain and claimed he could not
work. Dr. Beaty found plaintiff disabled because of his continued claim of pain.
¶ 46 On January 8, 2002, plaintiff applied for duty-related disability. He was examined by
three physicians selected by the Orland Firefighters Pension Board. Dr. Rajeev Khanna found
plaintiff’s complaints to be only subjective and he did not “anticipate any permanent
disability.” Dr. Khanna found that plaintiff’s weight gain contributed to his persistent lower
back pain. The second physician, Dr. Svazas, made basically the same findings, including
that plaintiff was not “permanently disabled from fire service.” The third physician, Dr.
William Earman, also found no objective injury. Although Dr. Earman was unable to come
up with an accurate diagnosis for plaintiff’s pain other than chronic lower back pain, he still
opined that plaintiff was permanently disabled. On June 12, 2002, a functional capacity
evaluation concluded that plaintiff met the current job demand levels of a firefighter.
Plaintiff’s treating physician, Dr. Beaty, however, opined that plaintiff continued to
experience lower back pain and could return to work activity only with restrictions against
repetitive bending or twisting.
¶ 47 At a hearing on July 31, 2002, the trustees of the Orland Firefighters Pension Fund
awarded plaintiff a duty-related disability by a vote of three ayes and two nays.
¶ 48 On December 4, 2003, an occupational health doctor, Dr. J. Williamson-Link, concluded
that plaintiff “remains unable to perform his full duty.” As required by section 4-112,
plaintiff underwent an independent medical examination. Orthopedic surgeon Dr. John
Stamelos concluded that plaintiff did “not demonstrate any objective findings that would
substantiate his complaint of continual pain in his lower back or groin,” and found “no
objective findings to substantiate his current disability.” However, Dr. Stamelos found
plaintiff permanently disabled based on plaintiff’s claim of lower back pain. On November
30, 2009, plaintiff was examined by Dr. Martin Lanoff, a physiatrist, for an annual
examination. In agreement with all the other doctors before him, Lanoff concluded that
plaintiff’s “subjective complaints were out of proportion to the objective findings. He is not
nonorganic or inconsistent, but there is no medical pathology.”
¶ 49 Dr. Lanoff indicated “No” on the physician’s certification of continuance of disability,
indicating his opinion that plaintiff no longer continued to be disabled to a point that he was
not able to perform the duties of a firefighter. With respect to the question “is the member’s
injury/illness that prohibits him from performing his duties as a firefighter and/or officer the
same injury/illness that caused him to qualify for disability benefits originally,” Dr. Lanoff
marked “n/a” and further stated “no disability.” Later, in testimony before the Board, Dr.
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Lanoff concluded that plaintiff was never disabled. The question asked of him and the
answer given were:
“Q. And I just would have one more question, which is–and just to summarize the
general thrust of your report–it’s your contention that Mr. Hoffman was never disabled[?]
A. Correct. I don’t see any physical pathology. I see multiple and consistent, yet
persistent, subjective complaints. Yet everybody’s workups are negative. Nobody even
gives him much of a diagnosis.”
It is because of this question and this answer that the circuit court of Cook County reversed
the Board’s decision to terminate plaintiff’s disability. Although Dr. Beaty also testified he still has
not found any objective evidence to support plaintiff’s pain, and concludes that by returning plaintiff
to work, it would place him and his coworkers in danger.
¶ 50 The Board conducted a hearing on the possible restoration to service of plaintiff, pursuant
to section 4-112 of the Pension Code. 40 ILCS 5/4-112 (West 2008). After reviewing all the
documents, testimony, medical reports, and exhibits, the Board issued a decision and order
dated June 9, 2012, concluding that plaintiff’s duty-related disability for a lower back injury
was terminated.
¶ 51 ANALYSIS
¶ 52 The majority affirms the trial court’s decision that the only evidence supporting the
termination of plaintiff’s permanent disability was Dr. Lanoff’s opinion. As noted, Dr.
Lanoff concluded that plaintiff never sustained a permanent disability in the first place. The
majority concluded that the Board’s decision was against the manifest weight of the evidence
because Dr. Lanoff’s opinion did not show that plaintiff has “recovered” from his previously
determined disability. 40 ILCS 5/4-112 (West 2008).
¶ 53 According to the statute, a disability pension can be terminated only “[u]pon satisfactory
proof to the board that a firefighter on the disability pension has recovered from disability.”
40 ILCS 5/4-112 (West 2008).
¶ 54 When the Board awarded plaintiff a permanent disability in 2002, the 3 to 2 majority did
so based on at best a soft-tissue injury with a subjective complaint of lower back pain.
Although Drs. Beaty and Stamelos opined that plaintiff was permanently disabled, their
opinions were based only on plaintiff’s subjective complaints of pain. Now, eight years have
passed and plaintiff still has no boney pathology or nerve-root damage, and physical therapy
and work hardening have not alleviated his unsubstantiated pain. The majority of this court
and the circuit court have interpreted the statute to mean that, unless there is evidence of a
recovery from the permanent disability, the permanent disability remains. I agree.
¶ 55 Where I differ concerns the proof that was presented to the Board. The Board reviewed
all of plaintiff’s prior medical records and opinions. These opinions included the opinion of
Dr. Beaty that plaintiff is still permanently disabled because he is a danger to himself and
others; and Dr. Lanoff’s opinion, based on a current physical examination and a review of
the records, that plaintiff was not permanently disabled. The records included findings that
there was no boney or neurological pathology. After eight years of medical care and
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treatment, only unsubstantiated subjective pain exists. In its decision-making process, the
Board can accept or reject each opinion that Dr. Lanoff provided. The Board is the trier of
fact, and it is not our job to substitute our judgment for the Board’s. Paxton-Buckley-Loda
Education Ass’n v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 350
(1999) (holding that an administrative agency’s findings and conclusion on questions of fact
are deemed prima facie true and correct, and reviewing courts will not reweigh evidence or
substitute their own judgment for that of an administrative agency). The Board had the right
to accept Dr. Lanoff’s opinion that plaintiff is not now permanently disabled, based on the
doctor’s finding that plaintiff has no injury at the time of his physical examination, and can
reject Dr. Lanoff’s testimony that plaintiff never had a permanent disability. Watra, Inc. v.
License Appeal Comm’n, 71 Ill. App. 3d 596, 602 (1979) (it is the role of the board to choose
which testimony to accept and which to reject after assessing witness credibility and
weighing the evidence). From Dr. Lanoff’s testimony that plaintiff is not now disabled, the
Board could reasonably infer that he had recovered from his permanent disability.
¶ 56 CONCLUSION
¶ 57 For the foregoing reasons, I would reverse the circuit court and affirm the Board. I cannot
find that the Board’s decision is against the manifest weight of the evidence.
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