NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220093-U
Order filed March 24, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
ARTHUR SZYMALA, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellant, ) Will County, Illinois, ) v. ) ) ROMEOVILLE FIREFIGHTERS’ PENSION ) FUND, THE BOARD OF TRUSTEES OF ) THE ROMEOVILLE FIREFIGTHERS’ ) PENSION FUND, the members of the Board ) Appeal No. 3-22-0093 of Trustees of the Romeoville Firefighters’ ) Circuit No. 21-MR-937 Fund, PRESIDENT MARTY HENRY, ) SECRETARY MICHAEL SPRADAU, ) TRUSTEE EDWARD PANZER, and ) TRUSTEE KIRK OPENCHOWSKI, ) ) Defendants ) ) Honorable (Romeoville Firefighters’ Pension Fund, ) John C. Anderson, Defendant-Appellee). ) Judge, Presiding. ___________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Albrecht and McDade concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The Board’s determination that the plaintiff was not disabled was not against the manifest weight of the evidence. ¶2 The plaintiff, Arthur Szymala, applied to the Board of Trustees of the Romeoville
Firefighters’ Pension Fund (Board) for a line-of-duty disability pension pursuant to section 4-110
of Illinois Pension Code (Code) (40 ILCS 5/4-110 (West 2018)). Alternatively, the plaintiff
requested a not-in-duty disability pension pursuant to section 4-111 of the Code (40 ILCS 5/4-111
(West 2018)). The plaintiff claimed that he was disabled due to his posttraumatic stress disorder
(PTSD) and major depressive disorder. The Board found that the plaintiff was not disabled and
denied both disability pension requests. The plaintiff sought review of the Board’s decision before
the circuit court, which affirmed the Board’s determinations.
¶3 I. BACKGROUND
¶4 The following factual recitation is taken from the Board’s findings and decision dated
February 18, 2021. In April 2005, the plaintiff was hired as a full-time firefighter and entered into
the pension fund. He passed physical fitness training and a medical examination. The plaintiff
performed various duties for the fire department, including responding to fires and emergency
medical service calls and participating in training exercises.
¶5 A. The Fall
¶6 In June 2007, the plaintiff and his crew were participating in a self-rescue window bailout
drill at the fire station. The plaintiff testified that he was positioned on the third floor of the training
tower and proceeded to descend from the third story to the ground using training ropes. As he
crawled out of the window, he recalled hearing a snapping sound, a rope ripped out of his hands,
and he fell to the ground. The plaintiff testified that he first landed on his buttocks on the pavement
then the rest of his body hit the ground. He looked up and saw his belt suspended above the ropes.
The plaintiff testified that he felt sleepy and did not recall anything until he awoke in the hospital.
¶7 Immediately following the fall, the plaintiff reported to the attending physician that his 2 harness broke and he “fell a distance of approximately 15 feet, and rolled down the side of the
wall, and to the floor, where he led with his left heel, and landed on his buttocks.” The physician
provided that the plaintiff experienced immediate pain and discomfort in his lower back and heels,
but suffered no head injury (noting that the plaintiff also reported that his helmet hit a metal pole
while going down). The records indicated that the plaintiff suffered no loss of consciousness
(contrary to his testimony), neck pain, numbness, or tingling. X-rays of his spine and heels showed
no abnormalities. The plaintiff was released from the hospital after about two hours and prescribed
medication for his pain and inflammation.
¶8 B. Events Following the Fall
¶9 About a week later, the plaintiff was released to return to work. He completed an employee
injury report where he stated that he fell approximately 15 feet; suffered an injury to his right sacral
area, left heel, and lower back; and recovered from the injury. On the same date, in a separate letter
providing a summation of the events from the fall, he provided that he fell approximately 15 feet,
landed on his behind, and his helmet struck a metal pole. The plaintiff provided that his injuries
were confined to his lower back, right hip, and his heels. At least twelve other members of the fire
department completed intradepartmental memoranda on what they witnessed, generally stating
that the plaintiff fell 15 to 20 feet, the belt snapped, and he tried to rappel down the ropes but his
grip slipped. The witnesses reported that he fell either on his buttocks or on the back of his heels
then his buttocks. None of the witnesses reported that he landed on his head or hit a pole.
¶ 10 The plaintiff testified that, he was told by the deputy chief years later, his helmet needed
to be replaced following the fall because it cracked after hitting a metal pole. He had no
independent recollection of striking a metal pole and never noticed a crack in his helmet. The
plaintiff was provided a new helmet when he returned to work. Since the fall, he routinely climbed
3 on ladders and roofs for training and calls. The plaintiff continued to perform capably.
¶ 11 In 2013, the plaintiff was promoted to lieutenant following a competitive promotional
testing process. However, he testified that management decided that his performance as lieutenant
was inadequate between 2015 and 2018. Around May 2017, the plaintiff was placed on a
“Performance Improvement Plan”, which included an evaluation of his work performance as
lieutenant from May 24, 2017, through February 28, 2018. He entered into a “Last Chance
Agreement” in April 2018, where he acknowledged deficiencies in his work performance and
agreed to improve these areas during a period of 60 work shifts or risk a demotion. The agreement
provided that he failed to meet various guidelines, such as working as a team, leading personnel,
communicating effectively, and working calmly in stressful situations.
¶ 12 C. The Demotion
¶ 13 On January 29, 2019, the plaintiff attended a meeting with Chief Kent Adams, other fire
department officials, and the Union Executive Board. During the meeting, Chief Adams informed
the plaintiff that he failed to satisfactorily complete the Performance Improvement Plan and terms
of the Last Chance Agreement and that his performance as lieutenant remained inadequate. The
plaintiff was also informed that he was being demoted from lieutenant to firefighter/paramedic
effectively immediately. The plaintiff testified that, while he was listening, “something just
snapped” and he “felt like the floor just caved in” on him. He also testified that he was a
perfectionist and news of his demotion was the “final push over the cliff of everything that was
compounding over the years.” The plaintiff credited the demotion as “the straw that broke the
camel’s back,” and he was unable to overcome or adapt to this event. Following the meeting, he
drove to an adjacent grocery store parking lot where he read the paperwork and wept. The plaintiff
testified that he expressed shock and concern with his family. He stated that it was at that moment
4 he recognized that he needed to talk to someone for professional help.
¶ 14 On February 1, 2019, the plaintiff contacted the human resources’ director to request leave
pursuant to the Family and Medical Leave Act (FMLA) “to get some professional help and sort
things out.” He was then placed on FMLA leave and never returned to work for the fire department.
¶ 15 D. Medical Evidence
¶ 16 The plaintiff’s medical history included orthopedic injuries, migraine headaches, obesity,
sleep apnea, bronchitis, hypothyroidism, urinary tract infections, kidney stones, type 2 diabetes,
and Non-Hodgkin’s lymphoma (in 2008 but he was in remission). The plaintiff suffered an injury
to his left knee during a team-building exercise in October 2014, which was fully resolved by June
2015 with surgery and physical therapy.
¶ 17 In February 2019, the plaintiff was first diagnosed as having suffered a moderate episode
of recurrent major depressive disorder by his primary care physician, Dr. Surbhi Shah, one week
following his demotion. This was the first mention of any depression symptoms within the
plaintiff’s medical records. He had undergone multiple depression assessments with Dr. Shah’s
office from 2012 through 2018 with no depression symptoms noted. His medical records from his
cancer treatment also indicated that he denied any signs of depression or anxiety during his medical
visits from June 2015 through June 2018.
¶ 18 The plaintiff then sought psychological treatment and continued therapy sessions through
the time of the hearing. He presented to advanced practice registered nurse, Kathleen McGreal,
who worked under the direction of a psychiatrist, with anxiety and depression symptoms. The
plaintiff noted supervisor changes with his employer caused him stress and anxiety. The plaintiff
was taking various medications to address his conditions that were continuously adjusted due to
side effects. In March 2019, after two sessions, McGreal completed an FMLA medical certification
5 where she provided that the plaintiff was unable to perform his job functions due to the severity of
his condition as he (1) had anxiety, low motivation, and low energy; (2) was unable to concentrate
and focus; and (3) was incompatible with self-reported job functions. She estimated the duration
of his condition to be “TBD~4 months.”
¶ 19 On April 11, 2019, the plaintiff filed an application for disability benefits with the Board,
where he described the nature of his disability as follows:
“Severe physical and mental conditions including depression, anxiety,
sadness, excess worry, poor sleep, anhedonia, inability to concentrate and focus,
low motivation, low energy, incompatibility with safe discharge of job functions.
Triggered by injuring my head when I fell from the 3rd story training tower during
window bailout training in 2006. I have ultimately battled anxiety, posttraumatic
stress syndrome, and mental health issues for years. Other aggravating factors for
my conditions have included, but are not limited to, the Non-Hodgkin's Lymphoma
treatments (2008-2018) and after effects including hypothyroidism and inability to
tolerate heat for prolonged periods of time, as well as, after effects of the orthopedic
injuries (2015 and 2018) that surface when climbing ladders and standing on
pitched roofs. I have tried to cope and bottle everything in, but ultimately, I have
recently reached a breaking point and begun seeking necessary medical treatment.”
¶ 20 The plaintiff continued treatment with McGreal where his medications were readjusted,
and he was diagnosed with insomnia and adjustment disorder with anxiety and depression. The
plaintiff reported having dreams at night about falling and continued to suffer from anxiety when
driving past the firehouse or viewing anything related to the fire department. McGreal diagnosed
the plaintiff with generalized anxiety disorder, moderate episode of a recurrent major depressive
6 disorder, adjustment disorder with anxiety and depression, and PTSD.
¶ 21 1. Neuropsychological Testing by Dr. Eschbach
¶ 22 The plaintiff’s neurologist referred him for neuropsychological testing with Dr. Alexander
Eschbach, a clinical neuropsychologist holding a Ph.D., to address his headaches. Dr. Eschbach
performed a neuropsychological examination of the plaintiff that commenced on August 31, 2019,
and ended on September 3, 2019. The examination consisted of at least 15 different tests designed
to measure memory, intelligence, visual perception, verbal learning, speech and language, motor,
personality, and emotional functioning.
¶ 23 Dr. Eschbach was most surprised with the plaintiff’s poor performance on the Test of
Variables of Attention (TOVA), which is a visual processing test. He concluded that the plaintiff’s
poor performance indicated a neurological deficiency. Dr. Eschbach also noted a decrement in the
plaintiff’s intelligence as well as deficiencies in visual perception, personality, and emotional
functioning. The objective testing showed that the plaintiff suffered from compulsiveness and he
was a perfectionist. Dr. Eschbach noted that he suffered from paranoid features and suspiciousness,
depression, anxiety, stress, low self-esteem, and worry. Dr. Eschbach reviewed three of the
plaintiff’s MRI reports and held the impression that the plaintiff suffered from gliosis, which is
present following an injury to neuronal tissue in the brain.
¶ 24 Dr. Eschbach’s report identified that the plaintiff suffered from a variety of diagnoses.
Following the plaintiff’s self-report of the fall, Dr. Eschbach concluded that he suffered cognitive
changes stemming from the fall and a mild traumatic brain injury (mTBI) with loss of
consciousness of unspecified duration. He opined that the fall caused a neural diffuse injury
throughout the brain. Dr. Eschbach further opined that persons with mTBI are able to function
normally and appear fine to others, but suffer from subtle personality changes that have a big
7 impact on one’s ability to work or function. Dr. Eschbach also noted that the plaintiff suffered
from obstructive sleep apnea, central sleep apnea, PTSD prolonged, and nicotine dependence. Dr.
Eschbach gave primacy to the PTSD diagnosis, stating it was an overriding concern leading to the
plaintiff’s anxiety and depression. He opined that the plaintiff was disabled due to his
neuropsychological status based on information provided by the plaintiff about the fall and his
history, which included (1) he fell 30 feet to the ground during a firefighting drill,1 (2) he hit the
back of his helmet after it struck a metal pole on the way down, (3) he could no longer tolerate
roller coasters or heights, and (4) he suffered from nightmares and had difficulty sleeping.
¶ 25 During his testimony, Dr. Eschbach was asked about whether the demotion would have
any impact on the plaintiff’s psychological health. He stated, “I don’t even know if he told me that
there was like a demotion.” However, he stated that such news could still be a psychosocial factor
adversely affecting his cognitive and neurological functions. Dr. Eschbach concluded that, due to
cognitive changes, the mTBI, and PTSD, the plaintiff was unable to return to work. As to
causation, Dr. Eschbach stated that the fall may have caused the plaintiff’s disability. However, he
equivocated on this point and made it clear that he did not wish to go on the record that there was
“definite causality” because he did not know what the plaintiff had been through, but he noted a
diminishment in the plaintiff’s functioning over the years.
¶ 26 2. Independent Medical Examinations
¶ 27 The plaintiff underwent three independent medical examinations (IMEs) by Dr. Daniel
Samo, Dr. Gaurava Agarwal, and Dr. Carl Wahlstrom, Jr. Each physician was provided the
plaintiff’s medical records from: the fall, his primary care physician, cancer treatment, Dr.
1 During his testimony, Dr. Eschbach was asked about whether the falling distance of 30 feet (the distance the plaintiff reported to him) versus 15 feet (the distance reported in other records) changed his opinion. In sum, he stated his opinion was unchanged as a fall of 15 feet could still result in an mTBI. 8 Eschbach’s testing, his left knee injury, and therapy sessions. They were also provided with the
plaintiff’s entry level physical and the job description for firefighter/paramedic. The Board
directed Dr. Samo to examine the plaintiff as to the physical health component of his claim and
Drs. Agarwal and Wahlstrom to examine the mental health component of his claim. Supra ¶ 19. 2
¶ 28 i. Dr. Samo
¶ 29 On October 23, 2019, Dr. Samo of Northwestern Medicine, examined the plaintiff. The
plaintiff noted the following during his interview with Dr. Samo: (1) he physically recovered from
the fall after about 2-3 days but noticed difficulty finding words since then; (2) he suffered from
nightmares since the fall, which decreased in frequency until the demotion when they became
frequent; (3) he fully recovered from his bout with Non-Hodgkin’s Lymphoma but has lasting
thyroid, altered taste, and heat intolerance problems from the chemotherapy and radiation; (4) he
no longer suffered from ongoing pain in his back, buttocks, left knee, or right ankle, and he was
not undergoing any treatment for previous injuries or his cancer; and (5) his disability was due to
his psychiatric issues and his physical injuries were not the cause of the application for benefits.
¶ 30 Dr. Samo performed a physical examination and noted that the plaintiff’s physical injuries
resolved and his Non-Hodgkin’s Lymphoma was in remission. He opined that the plaintiff was not
disabled due to his prior physical diagnoses and stated that he was only giving an opinion as to the
plaintiff’s physical condition as he did not evaluate him for a claim of mental disability.
¶ 31 ii. Dr. Agarwal
¶ 32 On October 28, 2019, the plaintiff was examined by Dr. Agarwal, a psychiatrist from
Northwestern University Feinberg School of Medicine. Dr. Agarwal compiled a detailed history
2 The Board’s decision provides that, at the time of the hearing, the plaintiff only proceeded on his disability claims on the basis that he suffered from PTSD and major depressive disorder. 9 of the plaintiff’s background and noted several statements by the plaintiff concerning his mental
and physical condition, which included: (1) following his demotion he “felt the floor caved in and
my brain was going crazy. I couldn’t make sense of it. I couldn’t sleep.”; (2) he suffered from
anxiety symptoms, including his heart racing, queasiness, and butterflies in his stomach, but at the
time of this examination, his anxiety was a 0/10 unless he heard or saw someone that reminded
him of the fire department; (3) he had headaches for as long as he could remember, which he
believed to be sinus headaches, but his neurologist diagnosed them as migraines, which are
controlled with ibuprofen; (4) his most troublesome symptoms were difficulty falling asleep and
nightmares (about falling or his demotion) as they had become more frequent and woke him in the
middle of the night; (6) he was isolative and did not want to do things or deal with people; and (7)
he never sought direct care from a psychiatrist but instead sought care from a psychologist and a
nurse practitioner who consulted a psychiatrist, which he felt was “the same thing.”
¶ 33 Regarding the plaintiff’s employment with the fire department, he reported the fall,
explaining that he landed on his buttocks and his helmet was cracked on a metal post. He reported
that he did not initially think that he lost consciousness but now thought that maybe he was in and
out of consciousness because he cannot remember much about the fall. The plaintiff provided that
he started having nightmares and difficulty recalling some words following the fall. He also
claimed that he suffered abuse from a new battalion chief, who he believed to be a devious person,
who “nitpicked” everything about his work performance. The plaintiff believed that this abuse led
him to work harder but also feel poorly about his performance. When he knew this particular
battalion chief would be working, he would not want to get out of bed and his whole body would
ache. Following a fire call in 2017, where a fire truck became stuck in mud and was burned, the
plaintiff felt that it was pinned on him, which led to his fire chief placing him on the Performance
10 Improvement Plan. Following his demotion, he decided he could not go to work because he could
not concentrate and was unable to manage medications for patients. The plaintiff stated that he felt
embarrassed, lacked trust in people, and he did not want to be around the decisionmakers who
demoted him. He also felt that he could not return to work as a regular firefighter following his
demotion because he was “almost twice as old as any of the guys on the platoon” and could not go
back to that. The plaintiff admitted that, even if his mental health symptoms were not present, he
would not go back to working for the fire department. He believed that the fire department unjustly
demoted him and “no matter what [he] did and how above and beyond [he] worked, they were
going to fire [him].”
¶ 34 Dr. Agarwal’s report provided 17 pages of excerpts from the plaintiff’s medical and
employment records and key findings from his evaluation. Dr. Agarwal opined that the plaintiff
had no mental health condition that caused symptoms that were the type or severity that would
cause him to be unable to perform his essential job duties as a firefighter and/or paramedic.
However, he stated that the plaintiff’s current medication regimen would need to be tapered prior
to returning to work due to potential side effects of those medications, which could lead to work
impairment. Dr. Agarwal opined that the plaintiff was not currently disabled due to his mental
health condition and stated that he did not have expertise “to comment on any additional reasons
for him being disabled, including neurological or cancer related issues.”
¶ 35 Dr. Agarwal stated, by the plaintiff’s own, repeated admission, the cause of his mental
health issues was related to mistreatment of a supervisor, workplace politics, and an unfair
demotion. He opined that the timing of the treatment history and removal from work correlated
more closely with the demotion, which supported a proximal cause of his current health issues
versus a physical injury that may have occurred due to the fall. Dr. Agarwal thought this was true
11 when considering the plaintiff’s excellent work performance years after the fall, which led to his
promotion to lieutenant. He also noted Dr. Eschbach’s neuropsychological testing notes where he
provided that the plaintiff reported more psychological or emotional symptoms than objectively
existed or may have exaggerated the severity of symptoms that existed. Dr. Agarwal opined that
the plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood.
¶ 36 iii. Dr. Wahlstrom
¶ 37 On November 14, 2019, Dr. Wahlstrom, a board certified psychiatrist, examined the
plaintiff. He noted that the plaintiff was able to direct his thoughts well to the matters at hand and
his concentration and attention were intact throughout the exam. Dr. Wahlstrom found that the
plaintiff’s short-term and long-term memory appeared unimpaired, and his intellect appeared
“grossly intact in all spheres.” The plaintiff scored a 30/30 on a cognitive screening exam. The
plaintiff reported that his mood was depressed and it had not improved as he searched for the right
medications. After performing various tests, Dr. Wahlstrom indicated that the plaintiff scored in
the “severe depression range” as self-reported. The plaintiff stated that he did not like to leave the
house and lacked the motivation or will to exercise. He further reported that “he had considered
returning to paramedic duties but was concerned that he tires too easily, becomes fatigued and
does not feel comfortable calculating medication for patients.”
¶ 38 Dr. Wahlstrom took a detailed history of the plaintiff’s background, health, and current
status. He reported several statements from the plaintiff, which included: (1) he got along well
with his co-workers, this feeling lasted until about four or five years following his promotion when
an influx of new, younger employees brought a different attitude that he did not prefer; (2)
following his promotion, he was subjected to a “loud and pushy” supervisor who started to pick
on him, made him uncomfortable, and caused him to suffer from self-doubt; (3) he had not returned
12 to the fire department since his demotion and stated “I caved in like a floor caved in. I became
depressed, anxious, had bad dreams, crying. I felt like I lost my identify. I had nightmares,” and
he believed the experience was traumatic and the stress of his evaluations were public, which
resulted in subordinates losing faith in his abilities; and (4) his treatment was going well but he
was still trying to find the right medication for his anxiety, depression, and PTSD.
¶ 39 Dr. Wahlstrom diagnosed the plaintiff as having a major depressive disorder, single
episode, severe. He opined that the diagnosis represented the development of a mental disorder
consisting of severe depressive symptoms of depressed mood, loss of usual interests, decreased
energy, weight gain, and problems making decisions and concentrating. Dr. Wahlstrom noted that
the plaintiff cooperated with his treatment but poorly responded to it. He noted the plaintiff found
his demotion to be emotionally traumatic, as seen in adjustment disorders with depression and
anxiety, which evolved into major depressive disorder. Dr. Wahlstrom found that there was no
indication that the plaintiff suffered from PTSD either by record review or examination. He noted
that it was unlikely that the plaintiff’s behavioral and emotional symptoms were attributable to a
pre-existing condition because none were found by record review or examination.
¶ 40 Dr. Wahlstrom opined that the plaintiff was “unable to reliably and safely perform his
duties as a firefighter/paramedic pursuant to the provided job description” due to the nature and
extent of his mental disorder, which had been poorly responsive over an extended period of time
despite psychotherapy and medication management. However, he opined that it was not medically
possible that the plaintiff’s condition was a result of the performance of an act of duty or from the
cumulative effects of acts of duty. Last, Dr. Wahlstrom opined that the plaintiff’s disability was
permanent if he were to continue his role of firefighter/paramedic.
¶ 41 E. The Plaintiff’s Condition at Time of Hearing
13 ¶ 42 The plaintiff testified that, following his demotion, he feared having any interaction with
members of the fire department because he “did not want to face anybody that had anything to do
with fire service at that point.” He felt shame about, and still did not fully understand, his demotion.
The plaintiff reported that his nightmares became worse following the demotion. He stated that he
never sought mental health services prior to the demotion because he “did not realize that any of
those problems that I experienced over the years were interconnected with each other, and I did
not realize that day might have impacted my performance at work and how I was at home or with
friends.” He did not realize the severity of his condition until he sought help.
¶ 43 The plaintiff stated that he never reported the nightmares or any psychological conditions
to the fire department or in his annual departmental physicals prior to the demotion because he
always kept those matters secret. When asked about whether he would still be working for the fire
department had he not been demoted, he provided that he “would have hoped to be able to carry
on and deal with my problems until—for as long as I could until I retired.” In sum, he credited his
disability to two separate incidents: the June 2007 fall, which caused him to slowly lose his skills,
and the January 2019 demotion, which intensified his dreams, anxiety, and depression. At the time
of the hearing, he continued therapy sessions and was prescribed daily medications to assist with
his depression, anxiety, sleep, and headaches. The plaintiff testified that he continued to suffer
from anxiety and depression and was triggered whenever he heard a fire siren or saw a fire vehicle.
¶ 44 The plaintiff testified that he remained forgetful. He continued to suffer from nightmares
and had a fear of heights. At the time of the hearing, the plaintiff stated that, for the past couple of
months, he had been employed as a delivery driver for DoorDash for a few hours per week. He
stated that he found it therapeutic, and it provided a source of income for his family, which suffered
financially since he left his job with the fire department. The plaintiff testified that he was told by
14 his treating physicians that he could not return to work at the fire department unless he was
completely off some of his medications, and he should not return to work as a firefighter/paramedic
on active duty. The plaintiff believed he could be a danger to fellow firefighters and the public. He
reported that his last day on the payroll with the fire department was May 26, 2019.
¶ 45 F. The Board’s Decision
¶ 46 The Board noted that the plaintiff’s application for pension benefits listed several paths to
disability, but at the time of hearing, he narrowed the claims to PTSD and major depressive
disorder. The Board concluded that the plaintiff did not prove a disability, noting: (1) the minor
injuries reported after the fall that he fully recovered from, (2) Dr. Eschbach’s opinion linking the
fall and his condition was based on incomplete and inaccurate information, (3) the plaintiff
succeeded in his career for many years following the fall and was promoted after a competitive
test, (4) the plaintiff reported a change in work conditions when the department brought in a new
battalion chief who frequently challenged the plaintiff’s work performance (evidencing a personal
dispute rather than a deficit in brain functioning from a fall seven to eight years prior), and (5) the
plaintiff only ever reported the claimed conditions immediately following his demotion.
¶ 47 The Board found that there was no credible evidence to support the finding that plaintiff
suffered from PTSD as none of the three IME providers found such. Although Dr. Eschbach
supported the PTSD claim, the Board reiterated that he received incomplete and inaccurate
information from the plaintiff. The Board noted that the claimed PTSD is related to interpersonal
aspects of the job, such as dealing with supervisors who criticized him and demoted him and being
faced with being placed on the same level as some of his former subordinates. The Board believed
that the plaintiff suffered from anxiety and depression, but did not find that these conditions were
tied to an act of duty with the fire department. The Board echoed Dr. Agarwal’s opinion of an
15 adjustment disorder and noted that all providers found the demotion to be the significant event.
The Board also believed that, by the plaintiff’s own admission, he would be embarrassed to return
to work, which was the cause of his failure to return. Further, it believed that, prior to the plaintiff’s
demotion, he mentally prepared to move on to another career, which was a willful decision instead
of an inability to return due to a disabling psychiatric condition. Thus, the Board concluded that
the plaintiff was not disabled and denied his pension claims.
¶ 48 G. The Circuit Court’s Decision
¶ 49 On review before the circuit court, the court concluded that the Board’s determination was
not contrary to the manifest weight of the evidence. The court stated that, had the court been a
member of the Board, it likely would have reached a different conclusion and weighed the
testimony differently. However, the court recognized that it could not reweigh the evidence and
there was sufficient evidence of record to support the Board’s decision. The plaintiff appeals.
¶ 50 II. ANALYSIS
¶ 51 In administrative review cases, this court is tasked with reviewing the decision of the
administrative agency and not the determination of the circuit court. Marconi v. Chicago Heights
Police Pension Board, 225 Ill. 2d 497, 531 (2006). The applicable standard of review in such cases
depends upon whether the question presented is one of fact, law, or a mixed question of law and
fact. Id. at 532. When the question presented is whether the evidence of record supports denial of
the plaintiff’s application for disability pension, it is a question of fact. Id. at 534. The findings and
conclusions of the Board as to questions of fact shall be held to be prima facie true and correct.
735 ILCS 5/3-110 (West 2018). Questions of fact are subject to the manifest weight of the evidence
standard of review. Claxton v. Board of Trustees of City of Alton Firefighters’ Pension Fund, 2023
IL App (5th) 220200, ¶ 17. A decision is against the manifest weight of the evidence where the
16 opposite conclusion is clearly evident or if the findings are unreasonable, arbitrary, and not based
on any of the evidence. Scepurek v. Board of Trustees of Northbrook Firefighters’ Pension Fund,
2014 IL App (1st) 131066, ¶ 17. However, it is the Board’s function to judge the credibility of
witnesses, assign weight to the evidence, and resolve conflicting medical evidence. Id. ¶ 31. Thus,
where there is competent evidence in the record supporting the Board’s decision, this court must
affirm that decision. Covello v. Village of Schaumburg Firefighters’ Pension Fund, 2018 IL App
(1st) 172350, ¶ 48.
¶ 52 The Code provides for a not-in-duty pension and a line-of-duty pension for permanently
disabled firefighters. The Code defines “disability” 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
2018). Here, the Board determined that the plaintiff was not disabled, and therefore, was not
entitled to a pension. On appeal, the plaintiff takes issue with the Board’s finding of not disabled
because it relied on the sole opinion of Dr. Agarwal (IME Psychiatrist, M.D.) instead of the
opinions of McGreal (Psychiatric-Mental Health, Advanced Practice Registered Nurse), Dr.
Eschbach (Clinical Neuropsychologist, Ph.D.), and Dr. Wahlstrom (IME Psychiatrist, M.D.). We
decline to reweigh the evidence, and instead, reiterate that our review is narrow in which we
determine whether there is sufficient evidence of record to support the Board’s determination.
¶ 53 Section 4-112 of the Code provides for the Board to select three physicians for such claims,
and these physicians need not agree as to the existence of any disability or the nature and extent
of such disability. 40 ILCS 5/4-112 (West 2018). The Board may also consider other evidence as
it deems necessary in reaching its determination. Id. Our supreme court has interpreted this section
to mean that the opinions of the examining physicians need not be unanimous, and the Board may
agree with the minority position. See Wade v. City of North Chicago Police Pension Board, 226
17 Ill. 2d 485, 513-14 (2007). Further, the Board may accept the position of a single examiner over
the other as long as there is a sound basis in the record. See id. at 507.
¶ 54 The Board noted that, by the time of the hearing, the plaintiff reduced his claims to PTSD
and major depressive disorder. It found that the record lacked any credible evidence that the
petitioner was suffering from PTSD, noting that no physicians found any evidence of such.
However, the Board did believe that the plaintiff suffered from anxiety and depression. It credited
the opinion of Dr. Agarwal, who opined that the plaintiff suffered from adjustment disorder with
anxiety and depression. The Board was more persuaded by Dr. Agarwal’s opinion of adjustment
disorder rather than Dr. Wahlstrom’s opinion of adjustment disorder that evolved into major
depressive order, noting the plaintiff admitted that his primary failure to return to work was due to
embarrassment of his lower rank and dealing with the consequences of the demotion. The Board
also called the plaintiff’s credibility into question when it pointed out that he only claimed these
conditions (to either his employer or medical providers) immediately following his demotion.
¶ 55 Although Dr. Eschbach (Clinical Neuropsychologist, Ph.D.) found that PTSD was the
primary cause of the plaintiff’s disability, the Board reasonably doubted his findings because many
of them were based on the plaintiff’s subjective complaints, and the plaintiff misreported
significant details, such as the distance from which he fell, the demotion itself, and the demotion’s
noteworthy timing in relation to his reported symptomology. Dr. Eschbach’s report also indicated
that the plaintiff reported more psychological or emotional symptoms than objectively existed or
he may have exaggerated the severity of symptoms that existed. Again, these facts reasonably led
the Board to question the plaintiff’s credibility and Dr. Eschbach’s conclusions.
¶ 56 Nonetheless, the plaintiff attempts to discredit Dr. Agarwal’s opinion because his report
indicated that he did not have expertise “to comment on any additional reasons for him being
18 disabled, including neurological or cancer related issues.” The plaintiff argues that this
“clarification is critical” because Dr. Agarwal did not assess his neurological disability status in
contrast to Dr. Eschbach who evaluated his neurological condition and concluded that he was
disabled. We disagree and find this distinction without a difference within the context of the facts
of this case. The plaintiff’s claimed disability was eventually narrowed down to PTSD and major
depressive disorder. Dr. Agarwal, a psychiatrist, was qualified to assess the claimed conditions.
¶ 57 As a final matter, the plaintiff also raises McGreal’s opinion (Psychiatric-Mental Health,
Advanced Practice Registered Nurse) that he was disabled, which the Board’s decision did not
reconcile. The plaintiff cites to the March 2019 FMLA form that McGreal completed on his behalf.
We find it unsurprising that the Board did not mention McGreal in its reasoning as her opinion
was rendered between two and three months after the demotion (compared to the IMEs from
around nine months after the demotion), only made in the context of an FMLA certification form,
and based on the plaintiff’s subjective complaints and self-reported job description. Further,
McGreal thought the issue would resolve in “TBD~4 months,” she did not testify at the hearing,
and the plaintiff points to no updated written opinion from McGreal as to his disability status.
¶ 58 Therefore, we find a sufficient basis in the record to support the Board’s determination that
the plaintiff was not disabled, and therefore, not entitled to a disability pension.
¶ 59 III. CONCLUSION
¶ 60 For these reasons, the judgment of the circuit court of Will County is affirmed.
¶ 61 Affirmed.