Wade v. City of North Chicago Police Pension Board

833 N.E.2d 427, 359 Ill. App. 3d 224, 295 Ill. Dec. 594, 2005 Ill. App. LEXIS 793
Appellate Court of Illinois·Decided August 3, 2005·No. 2-04-0047·Published·Cited by 10 cases

Opinions

JUSTICE BYRNE

delivered the opinion of the court:

On December 3, 2004, this court filed an opinion in the above-entitled case. See 353 Ill. App. 3d 852 (2004). In that opinion, we addressed whether defendant, the City of North Chicago Police Pension Board (the Board), wrongly denied plaintiff, Lawrence Wade, a line-of-duty disability pension (see 40 ILCS 5/3—114.1 (West 2002)), in part because Dr. Milgrana, one of the three doctors the Board selected to examine plaintiff, did not certify plaintiff as disabled pursuant to section 3 — 115 of the Illinois Pension Code (Pension Code) (40 ILCS 5/3—115 (West 2002)). Plaintiff argued that (1) the Board denied him a fair and impartial hearing because it relied solely on Dr. Milgram’s medical report in denying him a disability pension; (2) the Board’s decision was contrary to the manifest weight of the evidence; and (3) the Board improperly interpreted section 3 — 115 to mandate that, before a disability pension can be granted, all three examining physicians selected by the Board must certify that the applicant is disabled. We found that the Board correctly interpreted section 3 — 115 and properly denied plaintiffs application for disability pension benefits, and we affirmed the Board’s decision on this basis only. Compare Coyne v. Milan Police Pension Board, 347 Ill. App. 3d 713, 727-30 (2004), with Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, 338 Ill. App. 3d 490, 495 (2003).

Subsequently, plaintiff petitioned our supreme court for leave to appeal, which the supreme court denied. Wade v. City of North Chicago Police Pension Board, No. 99806 (May 2005). However, it entered a supervisory order directing this court to vacate our judgment, in light of Turcol v. Pension Board of Trustees of Matteson Police Pension Fund, 214 Ill. 2d 521 (2005), to resolve the issue of whether the Board’s determination that plaintiff had not proven his disability was against the manifest weight of the evidence. Pursuant to the supreme court’s supervisory order, we find that the Board’s determination that plaintiff had not proven his disability was contrary to the manifest weight of the evidence. However, we further conclude that, because the Board did not receive three certificates of plaintiffs disability, he was properly denied pension benefits under section 3 — 115.

FACTS

Plaintiff was hired as a full-time police officer by the North Chicago police department in June 1982. In 1989, plaintiff injured his right knee playing football. Dr. Roger B. Collins examined him in 1991 and again in 1992, when his knee problems continued. In August 1997, he twisted his right knee playing softball and underwent arthroscopic surgery. His knee problems continued and, in late 2001 and early 2002, he missed work for approximately eight weeks because of them. He returned to work in February 2002.

On April 20, 2002, plaintiff injured his right knee when he tumbled down an embankment while escorting a prisoner. Plaintiff sought immediate medical attention at Lake Forest Hospital, where he reported feeling a “pop” when he fell and experiencing pain and knee swelling. Dr. Chris Pavlatos, an orthopedic surgeon, performed orthoscopic surgery on plaintiff on May 17, 2002, after an MRI disclosed what Dr. Pavlatos believed was a new tear in the medial and lateral meniscus. On May 29, 2002, Dr. Pavlatos released plaintiff for “light duty work” and stated that plaintiff would “need to switch to a permanent sit down job with no running activities.” This restriction was reiterated by Dr. Pavlatos after he examined plaintiff again on August 8, 2002.

On September 4, 2002, Dr. Mark Levin, an orthopedic surgeon, conducted an examination of plaintiff. His report indicated that plaintiff had chronic and long-standing knee problems that predated the April 20, 2002, injury. Dr. Levin noted that he examined plaintiffs MRI scan from April 24, 2002, which showed arthritic changes of the knee as well as “findings consistent with a medial meniscal tear.” After reviewing plaintiffs history, radiographic studies, and medical records and performing a physical examination, Dr. Levin opined that plaintiff appeared to have tri-compartment arthritis of the right knee, which was chronic and long-standing and predated the injury from April 20, 2002. He further opined that plaintiff did not have the ability to return to work as a patrol officer because of the underlying arthritis of the right knee.

On September 23, 2002, plaintiff was advised that there were no permanent sedentary positions available for a police officer and his options were to retire or to apply for a disability pension. Thereafter, on October 8, 2002, plaintiff filed an application with the Board for a disability pension. He did not specify whether he was seeking a line-of-duty (see 40 ILCS 5/3—114.1 (West 2002)) or a not-on-duty (see 40 ILCS 5/3—114.2 (West 2002)) disability pension under the Pension Code.

Pursuant to statutory mandate (see 40 ILCS 5/3 —115 (West 2002)), three physicians selected by the Board, Dr. John Dwyer, Dr. Christopher Reger, and Dr. James W Milgrana, examined plaintiff. Drs. Dwyer and Reger found plaintiff to be disabled from a “work-related” injury and issued certificates of disability. Dr. Milgrana found that in both of his knees plaintiff had degenerative bilateral arthritis that preexisted any duty-related incident. Dr. Milgrana did not believe that the degree of arthritis in his right knee “disabled” plaintiff from work as a police officer and felt that if plaintiff were “so motivated[,] he could return to work as a police officer at the present time without restriction.” Dr. Milgrana did not find plaintiff to be disabled from a work-related injury and did not issue a certificate of disability.

At the evidentiary hearing on June 19, 2003, plaintiffs counsel indicated that plaintiff wanted the Board to consider his pension application as a duty-related claim only and that he was not seeking a not-on-duty disability pension. During the hearing, the medical reports of the Board’s examining physicians and the medical records from plaintiffs treating physicians were admitted into evidence. Plaintiff did not object to the admission of these exhibits, including Dr. Mil-gram’s medical report.

The Board denied plaintiffs application for a line-of-duty disability pension, finding that plaintiff had a preexisting disease unrelated to the April 20, 2002, incident. In its analysis, the Board found Dr. Milgram more credible than the other physicians and assigned greater weight to his opinion. The Board also relied on Dr. Levin’s report and the extensive prior medical treatment and injuries, which indicated to the Board that plaintiff’s right knee condition existed prior to the work-related incident. Citing Rizzo, which interpreted section 3 — 115 of the Pension Code to require a board to issue a disability pension only if it receives certificates of an officer’s disability from three practicing physicians selected by the board, the Board denied plaintiff a disability pension because it did not receive three certificates of disability. See Rizzo, 338 Ill. App. 3d at 495.

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Wade v. City of North Chicago Police Pension Board, 833 N.E.2d 427, 359 Ill. App. 3d 224, 295 Ill. Dec. 594, 2005 Ill. App. LEXIS 793 (Ill. Ct. App. 2005).

833 N.E.2d 427 (Wade v. City of North Chicago Police Pension Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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