{ "id": 8499008, "name": "EDWARD KELLAN, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE FIREMEN'S PENSION FUND OF THE CITY OF PARK RIDGE, Defendant-Appellant", "name_abbreviation": "Kellan v. Board of Trustees of the Firemen's Pension Fund", "decision_date": "1990-02-09", "docket_number": "No. 1\u201488\u20143730", "first_page": "573", "last_page": "586", "citations": [ { "type": "official", "cite": "194 Ill. App. 3d 573" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "185 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5355871 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0032-01" ] }, { "cite": "476 N.E.2d 1297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3437103 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/1050-01" ] }, { "cite": "505 N.E.2d 1387", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607394 ], "weight": 2, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0595-01" ] }, { "cite": "467 N.E.2d 971", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598725 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0548-01" ] }, { "cite": "532 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555300 ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0489-01" ] } ], "analysis": { "cardinality": 1158, "char_count": 28609, "ocr_confidence": 0.735, "pagerank": { "raw": 2.8252275822075835e-07, "percentile": 0.8386523693080176 }, "sha256": "855b25ff98b971e9e7b2ce16fd2cdbb0ac1ddd7684c9083b7e2503063de0a2a4", "simhash": "1:0fab6c9440546783", "word_count": 4883 }, "last_updated": "2023-07-14T21:36:32.853539+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LaPORTA, P.J., and McNAMARA, J., concur." ], "parties": [ "EDWARD KELLAN, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE FIREMEN\u2019S PENSION FUND OF THE CITY OF PARK RIDGE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court:\nThe plaintiff, Edward Kellan, was a civil service firefighter for the City of Park Ridge (City). He filed a claim with the defendant, Board of Trustees of the Firemen\u2019s Pension Fund of the City of Park Ridge (Board), for duty-related disability which would entitle him to a pension of 65% of his salary. After a hearing the Board agreed that he was unable to perform the duties of a firefighter but claimed that his disability was not duty related and that, therefore, he was entitled to a pension of only 50%. The plaintiff filed a complaint for administrative review in the circuit court, which reversed the decision of the Board, holding that the Board\u2019s decision was against the manifest weight of the evidence. The defendant contends in this court that the circuit court erred in finding that the Board\u2019s decision was against the manifest weight of the evidence and that the plaintiff, as a matter of law, is not entitled to a duty-related disability pension because his disability was allegedly not the result of an act of duty.\nThe plaintiff joined the Park Ridge fire department in November 1967, at which time he was not experiencing any back, muscle, or other pain. A Park Ridge Civil Service Commission Medical Examination Report dated October 6, 1967, indicated that the plaintiff had no disabilities and was in \u201cvery good\u201d physical condition.\nDuring the plaintiff\u2019s tenure with the fire department, he suffered several on-the-job injuries:\n(1) On August 2, 1974, he lacerated his right hand and pulled muscles in his lower right back while fighting a fire. He received medical treatment.\n(2) On March 29, 1975, he lifted a patient into an ambulance and suffered a severe back strain. He received treatment at a hospital and underwent 31 days of physical therapy consisting of diathermy, deep heat, massage, and rest. He lost 41 days from work.\n(3) In November 1977, while working as a fireman-paramedic, he injured his right arm and his lower back while removing a patient from an ambulance at a hospital. He received immediate treatment at the hospital and was subsequently examined by a doctor, who took a lower spine X ray and determined that the plaintiff suffered a sprained back in addition to tendonitis in his elbow.\n(4) On May 20, 1978, he incurred a muscle strain in his right shoulder while lifting a stretcher; he was treated at a hospital.\n(5) On November 12, 1978, while testing fire hydrants, he attempted to loosen the nut on a hydrant with a wrench; the nut shattered, and he fell and injured his shoulder. He received treatment immediately at the hospital and, regularly over the ensuing eight to nine months, for a separated shoulder. He lost 11 months of work as a result of the injury.\n(6) On July 2, 1981, he again injured his shoulder while opening a fire hydrant. This injury resulted in an operation to repair a torn biceps tendon. He was off work for a few months, then returned to light duty for approximately 3V2 years. He underwent \u201cmany different forms of physical therapy.\u201d After returning to full duty, he resumed firefighting duties but lost his paramedic duties.\n(7) On November 23, 1985, he experienced a sharp pain in his lower back after he attempted to stop a stationhouse garage door from coming down on an ambulance in which paramedics were treating a patient. He saw a doctor the following day and received a prescription for muscle relaxants and pain medication; he missed one day of work.\n(8) On January 23, 1986, while assigned to a van used for retrieving stray dogs, he shut the door to the van and slipped on a patch of ice, landed on his buttocks and jolted his back. He went to the doctor for lower back pain and received a pain medication and a muscle relaxant.\n(9) On June 10, 1986, he was riding in the passenger seat of a fire engine that hit a pothole; he hit his head on the ceiling and was \u201cslammed back down in the seat again.\u201d He was not wearing his helmet since he. did not fit in the cab while wearing one. He saw a doctor for back and neck pains, and he received pain medication and a muscle relaxant and missed one day of work. The driver of the fire engine, James Vogner, testified that hitting the pothole caused \u201cone heck of a bump.\u201d Another fireman who was riding in the fire engine, August Schramel, testified that \u201c[w]e hit a good hole and we both flew up.\u201d He said that they got \u201ca good jolt out of it.\u201d\n(10) On September 16, 1986, while working on light duty, the plaintiff was seated at a table in the station house. He testified that the following occurred as he prepared to get up to go check buildings with the fire prevention officer.\n\u201cI was sitting there and I grabbed my books and I turned to the right to get out of the chair and there was an extremely sharp pain in my low back. I didn\u2019t get more than an inch or two off the chair, and I guess I yelled or something. I don\u2019t recall exactly what happened.\nI sat down and [the fire prevention officer] said, \u2018What\u2019s the matter.\u2019 I said, \u2018I\u2019ve got a pain in my back. I can\u2019t get up.\u2019 He just sat there for a minute, and I said, \u2018I\u2019m going to try it again,\u2019 and I tried. There was just no way I could get out of the chair at that moment.\u201d\nThe fire-prevention officer, Richard Arthur, testified that as the plaintiff tried to get up from the chair he \u201cjust stopped halfway and winced with pain and said that his back was bothering him.\u201d Arthur also said that as the plaintiff was \u201cgetting up he had a real sharp pain in his back and he displayed pain in his face.\u201d Ernest Paul, the firefighter who drove the plaintiff to the chiropractor at that time, testified that the plaintiff was sitting in the office complaining of pain. He said that the plaintiff \u201clook[ed] like he was in a good amount of pain.\u201d\nThe plaintiff was driven to the chiropractor, who applied ice packs and electric current and massaged the plaintiff\u2019s back. He sent the plaintiff home with instructions to apply alternately heat and ice. The next evening the plaintiff saw Dr. Per Freitag, who discovered that the plaintiff had herniated disks in his neck and lower back. The plaintiff never returned to work after September 16,1986.\nThe plaintiff testified that he had never sustained a back or spine injury while he was off duty. His only back injuries were suffered while at work. His only hobby is fishing. He had very little off-duty employment while working for the fire department.\nAfter the plaintiff filed a claim for disability, he was required by the Board to submit to examinations by Dr. Richard Sturm, Dr. Herbert Loseff and Dr. David Spencer. Dr. Sturm and Dr. Loseff gave the Board reports which were favorable to the plaintiff. Apparently Dr. Spencer gave a report which was not favorable to him. A trustee of the Board, Curt Edelmann, sent a letter to Dr. Sturm and Dr. Loseff which is not part of the record. References to the letter by Dr. Sturm and Dr. Loseff and other matters in the record indicate to us that Edelmann took exception to their reports and made allegations of fact, apparently based on his personal knowledge, which the doctors were to consider. He did not send a similar letter to Dr. Spencer. Both Sturm and Loseff subsequently sent second reports to the Board which we will discuss later. Dr. Freitag, the plaintiffs treating physician, and Dr. Sturm testified for the plaintiff. Dr. Loseff s reports were introduced by the plaintiff.\nDr. Freitag had been the plaintiff\u2019s treating physician since September 17, 1986. It was he who first discovered that the plaintiff had herniated disks in his lower back and one in his neck. It was his opinion, based on the medical history that had been provided by the plaintiff, the physical examination and objective testing, that the plaintiff was unable to carry on the full and normal duties of a firefighter. Freitag said that sitting is very difficult for the plaintiff and is \u201cabout the worst position he can be in.\u201d He said that any one or a combination of the plaintiff\u2019s injuries could have resulted in the herniation in the cervical spine, which is in the neck, as well as the herniation in the lumbar spine, which is in the lower back. Freitag also testified that it was his opinion that the injuries to the spine were duty related, \u201cbased on the history as of the date the plaintiff was injured and [his] being on the job when these injuries took place.\u201d\nDr. Sturm, who is board certified in internal medicine and occupational medicine, examined the plaintiff for a disability evaluation on October 9, 1987. As a result of the examination he prepared two letters, dated October 12, 1987, and November 30, 1987. He also discovered that the plaintiff had two herniated disks in his back and one in his neck. He testified that the plaintiff had informed him of six incidents in which he suffered injury. He further testified as follows:\n\u201cIn the nature of scientific proof, we would like to be perhaps 95 percent sure or 99 percent sure that something is true before we assert that it\u2019s a scientific truth.\nI believe the kind of truth you\u2019re asking me about is a reasonable degree of medical certainty which in- my understanding is a 51-percent chance or greater that events are causally related.\nIf this is the case, reviewing [the plaintiff\u2019s] history of these injuries, it did seem to me that there was greater than a 51-percent chance that these injuries as described played some part or even a major part in his herniated disks.\nI think it\u2019s more likely than not that these incidents played a major role in causing or in making symptomatic his herniated disks.\nThe injuries that were cited as on-the-job injuries are the only forceful traumatic injuries that are recounted in [the plaintiff\u2019s] medical history. No other injuries were discovered that would contribute materially to [the plaintiff\u2019s] problem.\nBut based on the number of injuries presented by him as work-related injuries *** and the medical history, I felt it was more likely than not that these injuries played a major cause in his herniated nucleus pulposus.\u201d\nIn his first report to the Board, Sturm expressed the opinion that the herniated disks were caused by injuries to the plaintiff while he was on duty. After receiving the letter from Edelmann questioning Sturm\u2019s conclusion, Sturm submitted a second report adhering to his opinion that the plaintiff\u2019s on-duty injuries caused the disk herniations.\nSturm also said that it is not possible to determine the cause of a herniated disk without reference to medical history; that medical history is very important to a diagnosis and that good medical practice requires taking such a history.\nIn Dr. Loseff\u2019s first letter, dated November 13, 1987, he said that the plaintiff had \u201cseveral job-related injuries\u201d; that he diagnosed the plaintiff as having herniated disks and that he \u201cbelievefd] the on-the-job incidents were the cause of this patient\u2019s problems.\u201d\nAfter he received Edelmann\u2019s letter, Loseff changed his opinion. The plaintiff\u2019s lawyer then sent a letter to Loseff in which the attorney sought to answer the allegations of fact Edelmann made in his letter. The plaintiff\u2019s attorney expressed the view that Dr. Loseff had changed his opinion because of the \u201calleged facts\u201d contained in Edelmann\u2019s letter and expressed disagreement with certain statements of fact made by Edelmann. He included in the letter both of Dr. Sturm\u2019s reports, and he asked that Loseff again reconsider his opinion based on Dr. Sturm\u2019s opinion and the response to Edelmann\u2019s factual allegations.\nLoseff wrote a letter to the plaintiff\u2019s attorney which is, in part, as follows:\n\u201cWhat seems to be an issue here is whether or not his job caused all of his problem. As you know, much of this information was not available to me on the basis of my initial examination. If what you say regarding his injuries can be substantiated, I believe that the patient probably has a problem with his low back and his disabilities which is work-related. However, because there is such a difference of opinion between you and Mr. Edelmann\u2019s statements, I cannot verify which is fact and which is fiction. I will have to state that I only can go upon what the patient told me.\nIn summary, if what you describe in your letter of December 18th is true, then I would say that this patient has a work-related injury.\u201d\nDr. David Spencer, an associate professor of orthopedic surgery and a practicing orthopedic surgeon, testified for the defendant. Based on his findings, he concluded that the plaintiff had degeneration of the disks in his back and neck, a condition very characteristically seen in 50-year-old individuals, and that the plaintiff should not continue to work as a fireman. At the time he submitted his report to the Board he was aware of only the incident on September 16, 1986, when the plaintiff attempted to arise from his chair.\nSince we conclude that Dr. Spencer\u2019s testimony removes any doubt of the propriety of the order of the circuit court, we set out the pertinent portions verbatim:\n\u201cA. However, I did not feel that there was any evidence in the history that he had given me that there was any single significant on-the-job accident that could be attributed as the 'primary cause for any of these disk herniations.\nQ. The last sentence of your letter indicated that the on-the-job incidents merely aggravated pre-existing or underlying conditions-, is that correct?\nA. Right.\nQ. Now, doctor, I\u2019d like to ask you to explain that for the Board if you would, please. What is or was the pre-existing condition that you\u2019re referring to?\nA. Age-related degeneration of the intervertebral disks.\nA. It\u2019s my opinion that in essence, Mr. Kellan\u2019s condition is the result of a lifetime of accumulated effects and that the episodes that I mention, the four specific episodes [of injuries on the job] indeed aggravated that. I\u2019m not contesting that he didn\u2019t have pain after those episodes. I\u2019m sure he did. The fundamental reason he had pain was not because he didn\u2019t have an acute injury at that time but that he aggravated a weak back, for example, if I can use that kind of familiar term and that that weakness or degeneration was the result of a life-long activity of hard work and a little bit of bad luck in the sense that he had disks that had a propensity to deteriorate and bulge like this.\u201d (Emphasis added.)\nOn cross-examination the following exchange occurred:\n\u201cQ. Now, you\u2019re now aware of the fact that there were more incidents involving the spine than you initially were aware of. ***\nNow, again, when you talk about a degenerated disk, is it possible that those series of incidents could have caused and started the degeneration of the disks that you noticed?\nA. Yes.\nQ. Is it also not true that once that process commenced, that any one of those particular incidents may have been the straw that broke the camel\u2019s back; is that correct?\nA. Possible.\u201d\nLater, the doctor testified that he was convinced that every single one of the injuries to which the plaintiff had testified contributed to his back problem.\nOn redirect examination he was asked whether the incidents were the \u201csole cause\u201d of the plaintiff\u2019s present condition. He answered that the plaintiff did not have one specific job-related trauma that could be held responsible. He said he was convinced that the degeneration in the plaintiff\u2019s spine is \u201cmore severe than if he had had a different line of work.\u201d In response to a question by a trustee he said that he was convinced that the plaintiff\u2019s \u201cproblem is partially a result of his job and partially a result of misfortune, bad luck of having the back that he has.\u201d\nIt is our judgment that Dr. Spencer\u2019s testimony standing alone would require an award of duty disability to the plaintiff. It is also our judgment that the Board was not aware of the applicable law as evidenced by the remarks during the Board\u2019s deliberation. Trustee Edelmann, who appears to have taken the lead role in questioning the plaintiff\u2019s claim, summed up the evidence at the beginning of the Board\u2019s deliberation. In that summation he said that \u201c[ijt\u2019s probably true that firefighting played a role in the applicant\u2019s disability.\u201d He concluded as follows:\n\u201cI think the facts as presented in this hearing point out that the applicant because of both on-the-job injuries and off-the-job activities has worn his body out causing a disk herniation which has developed into debilitating symptoms; that since acts of duty alone cannot be established as the cause of the disability or even a major factor causing the disability, I think that the Board should award a 50-percent disability.\u201d (Emphasis added.)\nThe statute in issue is section 4 \u2014 110 of the firefighters\u2019 pension fund act (Ill. Rev. Stat. 1987, ch. 1081/2, par. 4 \u2014 110) and provides in part as follows:\n\u201cIf a firefighter, as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty, is found *** to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension, the firefighter shall be entitled to a disability pension of 65% of the monthly salary attached to the rank held by him or her in the fire department at the date he or she is removed from the municipality\u2019s fire department payroll.\u201d\nIn Mitsuuchi v. City of Chicago (1988), 125 Ill. 2d 489, 532 N.E.2d 830, the supreme court pointed out that the statute governing disability, pension and death benefits for police officers serves purposes equivalent to workers\u2019 compensation and that the system created for the compensation of injured officers under the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. 1081/2, pars. 22 \u2014 306, 22\u2014 307) is analogous to that established by the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.1 through 138.30). Because of similarity of language and because the Pension Code was enacted to provide policemen and firemen with benefits similar to those provided employees under the Workers\u2019 Compensation Act, the standards developed under that act are applicable. O\u2019Donnell v. City of Chicago (1984), 126 Ill. App. 3d 548, 467 N.E.2d 971.\nIn Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 505 N.E.2d 1387, the court held that rules governing police and firemen\u2019s pensions must be liberally construed in favor of the applicant and that the pension statute did not bar an award of a line-of-duty disability pension based upon the aggravation of a preexisting physical condition. In support of that conclusion the court stated as follows:\n\u201cWe are supported in our decision by cases in which our supreme court determined that evidence of a preexisting physical disability will not bar an award of compensation for a job-related injury caused by the \u2018stress of his usual labor.\u2019 [Citations.] Although these cases arose under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), we consider that the principle applies to the facts of the present case.\u201d 153 Ill. App. 3d at 598.\nThe defendant makes three arguments against a holding that the evidence proves aggravation of a preexisting condition. First, it says that there is no evidence to support such a finding. Dr. Spencer\u2019s testimony clearly refutes that position. Second, the defendant says that the trial judge \u201cgratuitously announced at the conclusion of his oral opinion that he concurred\u201d in the Olson opinion. It is true that the judge had already ruled but then added that he wanted his agreement with the \u201cdicta\u201d of the Olson court made part of the record for the benefit of the appellate court.\nThe practice of a judge explaining the reason for his ruling is to be encouraged, not criticized. Courts of review have often expressed a wish that the trial judge had, in fact, given the reasons for his rulings. In addition, the judge\u2019s remarks should not have been a surprise to the defendant. It was not the first time that the Olson case was mentioned; the defendant\u2019s attorney had cited Olson in his brief.\nBefore oral argument began in the circuit court, it was the judge who raised the applicability of the rule concerning aggravation of a preexisting condition. The defendant\u2019s attorney pointed out that that theory had not been presented to the Board. He added that the holding of the Olson case concerning aggravation of a preexisting condition was \u201cdicta,\u201d although \u201cthe [Olson opinion] did give some background on that issue.\u201d It is clear to us that the judge had read the defendant\u2019s brief, was aware of the expression of the law in Olson and correctly agreed with it whether that expression was obi-ter dictum or not.\nA discussion of the third reason advanced by the defendant to dissuade us from considering the issue \u2014 that the plaintiff did not raise the theory at the hearing before the Board \u2014 requires a discussion of other arguments made by the plaintiff in the circuit court. He argued first that the attorney for the Board was also the attorney for the City and had been improperly substituted for the Board\u2019s regular counsel. The plaintiff also argued that Edelmann was not an impartial trustee because Edelmann had sent letters to Dr. Sturm and Dr. Loseff questioning their original conclusions and because Edelmann had told the plaintiff\u2019s attorney at the end of the first day of the hearing that Edelmann and the other members of the Board did not feel they could grant the plaintiff a duty disability. (Edelmann admitted that conversation.)\nDuring the argument before the judge, the attorney for the Board sought to dispel any suggestion of impropriety because, he argued, the proceedings were not adversarial:\n\u201cI think, Your Honor, that a careful reading of the record in this case would indicate that notwithstanding the fact that the chairman of the Board of Trustees of the Pension Fund acted pursuant to my advice and recommendations, nevertheless, all evidentiary matters, it was the Board itself through its chairman, the president, Mr. Paulson, who made all rulings on all evidentiary objections.\nI\u2019d also like to point out to the court that this entire proceeding was not structured and not presented as a prosecution. There was no \u2014 no attorney acting against the interest of the applicant, Mr. Kellan. This was \u2014 this whole proceeding was carried out as an investigatory process.\nActing at the discretion of the Board, I assisted the Board in questioning the witnesses. I assisted the Board to determine what witnesses ought to be called, and I assisted the Board by taking the lead in questioning some of those witnesses, not all of them. Some of the witnesses were questioned directly by members of the Board.\u201d (Emphasis added.)\nAccepting the characterization of the administrative proceeding given in the circuit court by the attorney for the Board (and we concede that the Board participated in the questioning of witnesses to an unusual degree), and recognizing that no pleading at the Board was required other than the bare claim filed by the plaintiff, it would be unfair to say now that the plaintiff had waived the right to argue in the circuit court that the evidence established the aggravation of a preexisting condition.\nThe rule that matters not raised in the trial court may not be raised for the first time in a court of review is a limitation on the parties and not on the court, which has the responsibility of reaching a just decision. (In re Marriage of Bennett (1985), 131 Ill. App. 3d 1050, 476 N.E.2d 1297.) There is no reason that the same limitation of the rule should not apply in cases before a circuit judge on administrative review.\nMoreover, we are not convinced that the question was not adequately presented before the Board. In his summation, the attorney for the plaintiff discussed the testimony of Dr. Spencer as follows:\n\u201cHe could not tell you specifically what caused that degeneration. He said it could be caused by genetics. But then he testified that in Mr. Kellan\u2019s case he doesn\u2019t know what caused it. He certainly doesn\u2019t know if it\u2019s genetics. He testified to that. He did testify that the trauma that he sustained in the course of those injuries and those accidents certainly were contributing factors to his current back problem. He wouldn\u2019t testify that they were the sole cause, the only cause, but he did testify that after being aware of the number of incidents that in fact they could significantly contribute to the degenerative situation that his spine was in.\u201d (Emphasis added.)\nIn substance, the plaintiff\u2019s attorney argued that the plaintiff need not prove that the injuries he received on duty were the sole cause of his back problem; that it was sufficient to show that the injuries contributed to the problem. We see no reasonable distinction between an argument that an act contributed to one\u2019s condition and an argument that the act aggravated a preexisting condition. The argument of the plaintiff\u2019s attorney was a correct statement of the law. (Republic Steel Corp. v. Industrial Comm\u2019n (1962), 26 Ill. 2d 32, 185 N.E.2d 877.) That argument was expressly rejected by Edelmann in the deliberations and improperly so. For these reasons, we judge that the issue was properly before the circuit judge and he properly based his decision on the ground that the evidence established aggravation of a preexisting condition.\nEven if we were to assume that the question had not been properly preserved, we would affirm the judge on the additional ground that the decision of the Board was against the manifest weight of the evidence. It would serve no purpose to repeat all the medical testimony. It is enough to say that Dr. Spencer\u2019s testimony did not contradict the testimony of the other doctors to the extent that a material question of fact existed. The defendant\u2019s attorney made the somewhat surprising statement in oral argument in this court that the Board disregarded Dr. Spencer\u2019s cross-examination testimony and relied on his direct examination testimony. We do not agree that they had the right to disregard testimony that supported the plaintiff\u2019s position.\nThere is one other aspect of the defendant\u2019s argument, however, which should be addressed. Throughout its argument in the circuit court and in this court runs a common theme: The plaintiff lied about his injuries, and the Board did not believe him. The record does not support either aspect of that argument. Over objection by his attorney, the plaintiff was required to give his opinion as to the cause of the herniated disks. (The plaintiff\u2019s attorney correctly argued that the plaintiff was not qualified to give such an opinion.) The plaintiff particularly was required to give his opinion as to whether the incident of September 16, when he rose from the chair, caused the herniated disk. He said that in his opinion it did. The defendant\u2019s attorney now takes the position that the Board\u2019s rejection of the plaintiff\u2019s expressions of opinion shows that the Board concluded that he lied. This is not only an unfair argument, but it is not borne out by the record. There is nothing in the deliberations of the Board from which a conclusion could be drawn that the Board felt that the plaintiff had not told the truth. At one point in the deliberations one of the trustees pointed out that the plaintiff\u2019s lawyer said that the plaintiff \u201cdoes not know what caused the herniated disks.\u201d Another trustee said that he would like to award the plaintiff the extra money because he was sure \u201cin many other ways [the plaintiff] may have deserved it.\u201d That trustee also said that he had the \u201cgreatest admiration of the testimony of everybody involved.\u201d Whether that remark was directed to the testimony of only the doctors, we cannot tell. But it indicates an opportunity was presented to the Board to express an opinion of the credibility of any other witness; it did not do so. A reading of the entire transcript of the deliberations leads to no other conclusion but that the Board decided the case under a misunderstanding of the proper principle of law.\nFor all these reasons, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nLaPORTA, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE EGAN" } ], "attorneys": [ "Paul N. Keller, of Park Ridge, for appellant.", "John C. Broihier, of Di Leonardi & Broihier, Ltd., of Des Plaines, for appellee." ], "corrections": "", "head_matter": "EDWARD KELLAN, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE FIREMEN\u2019S PENSION FUND OF THE CITY OF PARK RIDGE, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201488\u20143730\nOpinion filed February 9, 1990.\nPaul N. Keller, of Park Ridge, for appellant.\nJohn C. Broihier, of Di Leonardi & Broihier, Ltd., of Des Plaines, for appellee." }, "file_name": "0573-01", "first_page_order": 595, "last_page_order": 608 }