Devaney v. Board of Trustees of the Calumet City Police Pension Fund

922 N.E.2d 565, 398 Ill. App. 3d 1
CourtAppellate Court of Illinois
DecidedJanuary 25, 2010
Docket1-09-0458
StatusPublished
Cited by7 cases

This text of 922 N.E.2d 565 (Devaney v. Board of Trustees of the Calumet City Police Pension Fund) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devaney v. Board of Trustees of the Calumet City Police Pension Fund, 922 N.E.2d 565, 398 Ill. App. 3d 1 (Ill. Ct. App. 2010).

Opinion

JUSTICE LAMPKIN

delivered the opinion of the court:

Plaintiff Gary Devaney filed a complaint for administrative review against the defendant Board of Trustees of the Calumet City Police Pension Fund (Board) and its individual members, who had determined that plaintiff was entitled to a nonduty, rather than a line-of-duty, disability pension based on findings that his disability did not result from or was not aggravated by a duty-related incident.

The circuit court reversed defendants’ decision and granted plaintiff his requested relief. Defendants appealed, arguing that their decision was not against the manifest weight of the evidence and the circuit court improperly reweighed the evidence. For the reasons that follow, we affirm the judgment of the circuit court.

I. BACKGROUND

Plaintiff had been employed as a police officer for the Calumet City police department since January 1989. Prior to his employment, he had back surgery in January 1985 for an injury that had caused left-sided back and leg pain. He was, however, medically cleared for police duty without any restrictions.

On March 11, 2001, plaintiff was off duty when he responded to an emergency call. Plaintiff engaged in a physical struggle with the suspect while trying to arrest him. During the struggle, plaintiff fell to the pavement on his back, and the suspect landed on top of plaintiff. That same day, plaintiff filed an employer’s first report of injury or illness, stating that he was injured on the right side of his head, right leg and left hand. Plaintiff did not mention any injury to his lower back in that report and did not seek treatment immediately after the incident.

On March 26, 2001, when plaintiff was treated for allergies and sinusitis by his family doctor, Matt Chelich, D.O., plaintiff did not mention any back or leg pain. Plaintiff, however, returned to Dr. Chelich on May 1, 2001, complaining of lower-back pain that radiated into his right leg. Plaintiff was prescribed painkillers and muscle relaxants and instructed to attend physical therapy. In August 2001, plaintiff was referred to Martin G. Luken, M.D., a neurosurgeon.

According to Dr. Luken’s August 17, 2001, chart note, plaintiff reported that his surgery in 1985 for left-sided sciatica completely relieved his pain and he remained well until the March 2001 arrest incident. Ever since that incident, he experienced left buttock and hip pain with intermittent burning paresthesia extending distally over the anterior aspect of his right foreleg. Dr. Luken reviewed hard copies and the report of plaintiffs July 30, 2001, MRI scan and concurred with the interpretation of a right lateral disk protrusion at L4-L5 and right paracentral protrusion disk at L5-S1 with mass effect upon the associated nerve root. Dr. Luken concluded that plaintiffs current symptoms, neurologic deficit, and demonstrated disk herniation were the result of the March 2001 work injury. Dr. Luken scheduled a lumbar epidural steroid injection as a final attempt to manage plaintiffs problem nonoperatively.

At plaintiffs next visit on July 12, 2002, Dr. Luken noted that administrative problems had prevented plaintiff from undergoing the recommended steroid injection. Nevertheless, plaintiff had enjoyed gradual resolution of his pain and was able to continue working. He was, however, always aware of his right foot slapping, particularly when he was fatigued. Plaintiff continued to do reasonably well until he experienced a marked flare-up of symptoms two or three months prior to the visit. He could not recall a “specific injury that precipitated the worsening, though he suspects activities attendant to his care of a new puppy at home may have played a role in his increased symptoms.” The pain and foot slapping markedly worsened and only slowly resolved during the intervening months, particularly for the two weeks when he was on vacation. Plaintiff described himself as very nearly pain free and the foot slapping was at its usual baseline. Dr. Luken reviewed plaintiffs June 14, 2002, MRI scan and noted Dr. Grace Lee’s comment suggesting that the demonstrated abnormality “ ‘does not look significantly worse than 7/31/01.’ ” Dr. Luken and plaintiff discussed the worrisome implications of plaintiffs foot weakness and the possibility of surgery. Dr. Luken scheduled the steroid injection.

Dr. Howard Robinson, who performed the steroid injection on July 30, 2002, noted that plaintiff, despite not getting the recommended injection in 2001, had reported improvement and was doing well until June 2002, when he sneezed and experienced a significant increase in his right lower-back pain into the right buttock. At an August 19, 2002, follow-up visit, Dr. Luken noted that plaintiff did not enjoy any significant symptomatic gains from the injection. Moreover, plaintiff stated that his level of activity had been significantly limited in recent months due to his lumbar symptoms. Dr. Luken recommended surgery, which was performed in January 2003.

Dr. Luken’s remaining chart notes from February 11 through October 17, 2003, concerned plaintiffs follow-up visits and progress in treatment after surgery. Dr. Luken noted that plaintiffs pattern over the several months was to be typically comfortable at rest except for some vague right lower-back soreness, but walking or other substantial exertions precipitated right-sided lower-back spasms and pain, with painful radiation extending into his right leg or the toes of his right foot. They discussed spinal stabilization surgery, but plaintiff was not inclined to undergo further surgery and thought he could live with the pain for the time being. Dr. Luken stated that plaintiff had reached his maximum medical improvement from the surgery and any employment he pursued must be strictly sedentary.

Although plaintiff had worked since the March 2001 incident and up to the date of his January 2003 surgery, he was restricted to office work. After the surgery, plaintiff was not able to return to full duty or serve in any other capacity as a police officer. Plaintiff applied for a line-of-duty disability pension based on injuries he claimed to have sustained to his lower back as a result of the March 2001 incident.

In a March 2004 report, Dr. Julie Wehner stated that she examined plaintiff, who no longer complained of severe aching in his leg, but still had constant right lower-back pain, and the dorsum of his ankle still hurt on an intermittent basis. The first two toes on his right foot were still asleep, and any prolonged walking made his right leg weak and start to slap. All of plaintiffs MRIs from 2001, 2002 and 2003 showed multilevel degeneration at L2-L3, L3-L4, L4-L5, and L5-S1. In addition, the preoperative MRIs were of somewhat poor quality, but did show disk protrusions at L4-L5 and L5-S1. Dr. Wehner concluded that plaintiff did suffer an injury on March 11, 2001. Although plaintiff had preexisting problems almost 20 years ago, he had had surgical treatment for it and did not seem to have any significant treatment during the ensuing 20-year period. Dr. Wehner believed that plaintiff s previous back problems did not have a specific effect on the date of injury of March 11, 2001. The 2001 incident possibly worsened his back injury and resulted in him developing the herniated disks.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Svec v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago
2025 IL App (1st) 240735-U (Appellate Court of Illinois, 2025)
Stafford v. Board of Trustees of the Crest Hill Police Pension Fund
2021 IL App (3d) 190779-U (Appellate Court of Illinois, 2021)
Village of Franklin Park v. Sardo
2020 IL App (1st) 191161 (Appellate Court of Illinois, 2020)
Olson v. Lombard Police Pension Fund
2020 IL App (2d) 190113 (Appellate Court of Illinois, 2020)
Miller v. Board of Trustees of the Oak Lawn Police Pension Fund
2019 IL App (1st) 153031 (Appellate Court of Illinois, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
922 N.E.2d 565, 398 Ill. App. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devaney-v-board-of-trustees-of-the-calumet-city-police-pension-fund-illappct-2010.