{ "id": 333134, "name": "THOMAS D. SULLIVAN III, Plaintiff-Appellant, v. RETIREMENT BOARD OF FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Sullivan v. Retirement Board of the Firemen's Annuity & Benefit Fund", "decision_date": "1994-11-10", "docket_number": "No. 1\u201493\u20143582", "first_page": "965", "last_page": "972", "citations": [ { "type": "official", "cite": "267 Ill. App. 3d 965" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "596 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 180", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498549 ], "pin_cites": [ { "page": "196-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0180-01" ] }, { "cite": "392 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3265214 ], "year": 1992, "pin_cites": [ { "page": "982" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0978-01" ] }, { "cite": "603 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5782103 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "507" }, { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0499-01" ] } ], "analysis": { "cardinality": 818, "char_count": 17740, "ocr_confidence": 0.768, "pagerank": { "raw": 8.383815914928078e-08, "percentile": 0.48206034405866904 }, "sha256": "731f7a17ec5cc97c0fbacbf29952126bc574cd7ba61c17b2da4676cc42d2a6e2", "simhash": "1:89ab5a482a29657b", "word_count": 2724 }, "last_updated": "2023-07-14T14:32:09.244505+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS D. SULLIVAN III, Plaintiff-Appellant, v. RETIREMENT BOARD OF FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nPlaintiff, Thomas D. Sullivan III, sought administrative review from a decision of the Retirement Board of the Firemen\u2019s Annuity and Benefit Fund of Chicago (Board), denying his application for duty-related disability benefits. (40 ILCS 5/6 \u2014 151 (West 1992).) The trial court affirmed the denial of benefits and plaintiff now appeals from this judgment, raising the following issues: (1) whether the Board\u2019s decision was contrary to the manifest weight of the evidence; (2) whether the Board denied plaintiff a fair hearing and due process; and (3) whether the trial court erred in denying plaintiff\u2019s request to amend his complaint to add a claim for nonduty disability benefits.\nPlaintiff was employed as a paramedic with the Chicago fire department (Department) for nine years until July 23, 1991, when he suffered the back injury for which he now seeks benefits. Following the accident, plaintiff remained on paid disability leave for one year until July 23, 1992, when he was removed from the payroll. Plaintiff subsequently applied for permanent duty-disability benefits under section 6 \u2014 151 of the Illinois Pension Code (Code)(40 ILCS 5/6 \u2014 151 (West 1992)). A hearing was held on his application on November 18, 1992, and the following evidence was adduced before the Board.\nPlaintiff testified that on July 23, 1991, he and other paramedics were attempting to hoist a stretcher bearing a 400-pound patient. When one of the paramedics failed to lift his end, the entire load shifted onto plaintiff. Plaintiff initially struggled to support the stretcher, but then felt a \"pop\u201d in his back and severe pain and collapsed under the weight. Plaintiff testified that he immediately began to \"spasm and tighten up\u201d and that within a short time period he \"tightened up\u201d from his shoulder blades to his buttocks. Plaintiff was subsequently taken to the hospital, where the emergency room physician gave him pain medication and instructed him to remain in bed.\nAbout one week later, plaintiff consulted with the fire department\u2019s medical director, Dr. Hugh Russell, who referred him to orthopedic surgeon Dr. Robert J. Daley. After examining plaintiff, Daley sent Russell an evaluation letter in which he diagnosed plaintiff\u2019s condition as lumbar radiculopathy with degenerative disc changes and transitional vertebrae. Daley noted that plaintiff had a history of duty-related back injuries and recommended that he undergo a magnetic resonance imaging scan (MRI) and an electro-myogram (EMG) for further analysis. Daley placed plaintiff on a physical therapy schedule and ordered him to remain off work.\nPlaintiff remained under Daley\u2019s care until February of 1992, consulting with him about once every three weeks. During this time, he underwent physical therapy two or three times per week and was treated with muscle relaxants and steroids. Throughout the fall of 1991, Daley sent reports to Russell tracking plaintiff\u2019s progress. These reports, which were contained in the record, reflected that plaintiff had derived some benefit from treatment but was still in significant discomfort and that Daley felt he was not progressing well in therapy. Daley noted that plaintiff\u2019s MRI scan taken in August 1991 reflected mild bulging of the LI and L2 intervertebral discs and desiccation of the disc space between L5 and SI, all in the vicinity of the lower to lower-middle back. Plaintiff\u2019s EMG was consistent with SI radiculop-athy on the left. In one early progress letter, Daley expressed hope that plaintiff could return to work in the future, noting that he had reported significant progress in pool therapy; however, throughout the remainder of the- six-month period in which plaintiff was under Daley\u2019s care, Daley consistently instructed that plaintiff was not yet capable of returning to his duties as a paramedic.\nDaley advised plaintiff that he may require epidural steroid injections or back surgery in order for his condition to improve. Desiring a second opinion, plaintiff scheduled an appointment for a consultation with a neurological surgeon, Dr. Michael J. Jerva. In the meantime, the Department instructed plaintiff to undergo a \"functional capacity evaluation,\u201d which plaintiff did. The specialist who administered this evaluation concluded that plaintiff demonstrated low functional capacities and deconditioning and that he was not ready to meet the critical demands of paramedic work. The specialist observed, however, that plaintiff at times terminated the weight-lifting programs with nonspecific complaints of pain and that he did not demonstrate behaviors consistent with his high reports of pain to the lower back. The specialist recommended that plaintiff undergo a \"B200\u201d evaluation for a more objective analysis.\nTwo weeks later, plaintiff took the B200 test, which is a two-hour, computerized weight-lifting test. Plaintiff testified that he was instructed to \"go all out\u201d in his efforts and that any failure to fully exert himself would be detected through the computer. The B200 test results showed that plaintiff performed with \"consistent effort\u201d; nonetheless, he ranked below the tenth percentile in range of motion testing, in the thirtieth percentile for \"functional back strength,\u201d and below the tenth percentile in isometric tests. According to plaintiff, these tests caused him to suffer a relapse in his symptoms necessitating additional specialized physical therapy.\nOn January 25, 1992, plaintiff went for his consultation with Jerva. After reviewing plaintiff\u2019s recent medical history, Jerva reaffirmed Daley\u2019s diagnosis of lumbar radiculopathy and spondylosis, noting evidence of \"desiccation of the L5-S1 intervertebral disc with protrusion at that level.\u201d Jerva recommended, however, that plaintiff\u2019s tests including the MRI be updated prior to any further in-terventional treatment.\nJerva also recommended that plaintiff undergo a myelography examination to determine the feasibility of back surgery. Jerva noted, however, that plaintiff had previously suffered a life-threatening ana-phylactic reaction to the iodine dye used in myelography; thus, he referred him to an allergist to explore the possibility of desensitizing him prior to the test. The allergist, Dr. Dolly Thomas, reported that plaintiff was at \"high risk\u201d for an allergic reaction to myelography, and urged if the test was indeed \"essential,\u201d that it be done with great caution, that plaintiff be hospitalized and closely monitored both before and afterward, and that the test be administered with emergency staff and equipment standing by.\nOn May 1, 1992, after plaintiff\u2019s updated testing, Jerva reported that lumbar spine X rays showed narrowing of the T12 and LI and L2 disc spaces with no evidence of instability. He further found that the EMG and nerve conduction study were normal, as was a radioisotopic bone scan. Jerva determined, however, that plaintiff\u2019s second MRI scan, taken March 19, 1992, revealed \"extensive degenerative changes of the facet joints with degenerative cyst formations at multiple levels and compromise of the left neural foramen at the L5 level.\u201d There was no evidence of herniation. Jerva again recommended that plaintiff take a myelogram despite its risks to ascertain whether surgery would be beneficial.\nIn May of 1992, plaintiff began treatment with another orthopedic surgeon, Dr. Michael R. Treister. In early July 1992, Treister determined that there was tenderness \"from L2 to the sacrum\u201d mostly in the upper lumbar area. Treister noted that although plaintiff\u2019s symptoms were mostly in the left lower back, he could not determine any measurable atrophy on that side, and suggested that plaintiff undergo a myelogram and post-myelogram CT scan to determine exactly \"what was going on\u201d in the left lower portion of his back. Treister emphasized, however, that at the T12 and LI disc level, there was significant degeneration which precluded plaintiff from any moderate to heavy lifting now or in the future; accordingly, Treister concluded that plaintiff would be permanently unable to perform the duties of a paramedic. Treister further concluded that because there had been no indication of pathology prior to plaintiff\u2019s 1986 duty-related injury, and in light of the obvious and significant advancement of the current pathology at plaintiff\u2019s relatively young age, it was \"reasonable to assume\u201d that plaintiff\u2019s condition was the result of his previous work-related accidents.\nAfter the conclusion of plaintiff\u2019s case, the Board\u2019s attorney presented the testimony of Dr. George Motto, a consulting physician employed by the pension fund. Motto examined plaintiff in September of 1992, and testified that he was incapable of returning to work as a paramedic. Motto testified that he found tenderness in plaintiff\u2019s paraspinal muscles especially within the left lumbar region, and a markedly reduced range of motion. Motto explained that the \"T-12 and L-l\u201d disc levels referred to an area in the middle back while the \"L-5 and SI\u201d levels were located at the lower end of the spine just above the sacrum. Motto testified that plaintiff\u2019s August 1991 EMG showed radiculopathy, or nerve pathology, in the area of the left lower spine. When questioned regarding the March 1992 MRI scan, Motto explained that the \"extensive degenerative changes\u201d of the facet joints were abnormalities occurring with aging and wear and tear on the back. The \"degenerative cyst formations,\u201d which could be seen at multiple levels of plaintiff\u2019s spine, indicated areas of lucency or decrease in signal, or bone pathology. Motto testified that spinal cysts were always degenerative and that they presented objective evidence of pain. He also indicated that the facet degeneration would cause pain, but that it would be localized.\nMotto noted that although Treister had concluded that plaintiff could no longer work due to severe degeneration at the T-12 and L-l level, the MRI scans had showed no bulging discs in that area. Motto acknowledged that the July 23, 1991, accident could certainly have contributed to plaintiff\u2019s present condition; but he also indicated the condition could have been attributable to the aging process or plaintiff\u2019s own malingering. He testified, however, that it would have been impossible for a patient to falsify EMG results. Additionally, Motto characterized the functional capacity examination as the most objective means of demonstrating plaintiff\u2019s functional capacity. Finally, Motto confirmed that there was an increased risk of fatality during a myelogram for patients who have demonstrated an allergy to iodine.\nThe findings of Department medical director Russell were introduced into evidence. Russell indicated that plaintiff was evaluated by orthopedic services with extensive testing by MRI scan, EMG, and nerve conduction velocity studies, \"all of which were negative for any lumbar sacral radiculopathy.\u201d Russell then noted that plaintiff \"refused to cooperate\u201d with his orthopedic attending physician, who ordered a myelogram study. Russell also noted that plaintiff\u2019s neurological and orthopedic surgeons were unable to find any pathology to explain his pain, and concluded that \"all x-ray studies, EMG and physical examination conducted, thus far, failed to demonstrate any pathology of his spine. No disabling pathology exist.\u201d\nAt the conclusion of the hearing, the Board deliberated and announced its decision to deny plaintiff\u2019s application. On November 19, 1992, the Board\u2019s secretary notified plaintiff by mail that he had been denied benefits \"for the reason that there [was] not sufficient evidence to substantiate\u201d that he was disabled, under section 6 \u2014 151 of the Code. The Board entered no findings of fact or conclusions of law to support its decision.\nPlaintiff subsequently sought administrative review, and following a hearing, the court affirmed the decision of the Board. The instant appeal followed.\nPlaintiff argues that the Board\u2019s finding was contrary to the manifest weight of the evidence. Defendant responds that given the deferential standard of review, Russell\u2019s findings and portions of Motto\u2019s testimony alone were sufficient basis to affirm the Board\u2019s decision. We disagree.\nAn agency\u2019s factual findings are entitled to great deference on administrative review, and this court should not reweigh evidence or substitute its judgment for that of the Board. (Zien v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund (1992), 236 Ill. App. 3d 499, 507, 603 N.E.2d 777; Hodges v. Board of Trustees of the City of Granite City Police Pension Fund (1979), 73 Ill. App. 3d 978, 982, 392 N.E.2d 417.) Nevertheless, when an administrative order is contrary to the manifest weight of the evidence, it is this court\u2019s duty to reverse it. Zien, 236 Ill. App. 3d at 507; Iwanski v. Streamwood Police Pension Board (1992), 232 Ill. App. 3d 180, 196-97, 596 N.E.2d 691.\nUnder section 6 \u2014 151 of the Code, a fireman is entitled to duty disability benefits if he is disabled as a result of injuries incurred in the course of his duties. (40 ILCS 5/6 \u2014 151 (West 1992).) The terms of the Code should be liberally construed in favor of the applicant in order to achieve its beneficent purpose. Zien, 236 Ill. App. 3d at 507.\nThe trial court determined that Russell\u2019s findings, corroborated by Motto\u2019s testimony, were sufficient to sustain the Board\u2019s decision that plaintiff was not disabled. We do not agree. Russell\u2019s relatively perfunctory report misstates the results of plaintiff\u2019s tests and cannot be reconciled with the findings of the medical professionals who examined and treated plaintiff. While Russell concluded there was no disabling pathology to explain plaintiff\u2019s pain, Daley, Treister, and Board physician Motto certified that the condition of his back rendered him incapable of returning to work as a paramedic. Additionally, the results of plaintiff\u2019s functional capacity examination, which Motto characterized as the most objective measure of plaintiff\u2019s ability to function, demonstrated that plaintiff was unable to perform the tasks of his job. In the B200 examination, plaintiff exerted consistent effort and yet scored below the tenth percentile in range of motion and isometric tests, and in the thirtieth percentile for functional back strength. Russell\u2019s report, inexplicably, contains no mention of these results.\nRussell\u2019s conclusion that plaintiff\u2019s EMG and MRI tests \"were negative for any lumbar sacral radiculopathy\u201d was directly contradicted by the findings of Daley, Jerva, and Treister, who found evidence in the first MRI of radiculopathy in the lumbar spine. Further, although Russell stated that all of plaintiff\u2019s tests were normal, this was in fact true only for his latest EMG; according to Jerva, the most recent MRI scan revealed \"extensive\u201d degeneration of the facet joints and degenerative cyst formations at multiple levels of plaintiff\u2019s spine. Motto testified that such degeneration provided objective evidence of back pain. Additionally, Treister reported significant degeneration near the lower thoracic region of plaintiff\u2019s spine which he felt would preclude plaintiff from any moderate to heavy lifting now or in the future. In light of the inaccuracies in Russell\u2019s report and its failure to address what was clearly evidence of disability, we find his recommendation to be questionable at best.\nDefendant vaguely suggested that plaintiff\u2019s condition was the result of his own malingering or some other nonduty cause. Although Motto did acknowledge that malingering could be a factor contributing to such conditions, we found no such evidence in the record in this case. Russell dismissed plaintiff as \"uncooperative\u201d for \"refusing\u201d to undergo a myelogram; however, his report neglected to address the fact that this procedure placed plaintiff at high risk for a life-threatening allergic reaction. We cannot conclude that plaintiff was \"malingering\u201d merely by deciding against this procedure, espe-dally in light of his otherwise consistent efforts at recovery. The record indicates plaintiff underwent regular examinations, submitted to all other tests ordered by his physicians, and performed with satisfactory or high effort in his physical therapy. Finally, the vast majority of medical evidence indicates that plaintiff\u2019s condition indeed resulted from duty-related accidents. The only evidence to the contrary was Motto\u2019s statement that his condition could have been occasioned by the natural aging process. Motto added, however, that in light of plaintiff\u2019s young age and the extent of deterioration, it was also likely that the July 23, 1991, accident led to his present state of ill-being.\nFor the foregoing reasons, we find the Board\u2019s determination to have been against the manifest weight of the evidence, and reverse and remand this action to the Board with instructions to award plaintiff the duty-disability benefits to which he was entitled. In light of our decision, we do not reach plaintiff\u2019s additional contentions that he was deprived of a fair hearing and that the Board improperly denied his claim for ordinary disability benefits.\nReversed and remanded with directions.\nJOHNSON and CAHILL, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "Dowd & Bloch, of Chicago (J. Peter Dowd, Robert E. Bloch, and Linda Wyetzner, of counsel), for appellant.", "Fagel & Haber, of Chicago (Steven J. Teplinsky and Sara L. Thomas, of counsel), for appellee." ], "corrections": "", "head_matter": "THOMAS D. SULLIVAN III, Plaintiff-Appellant, v. RETIREMENT BOARD OF FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201493\u20143582\nOpinion filed September 22, 1994.\nModified opinion filed November 10, 1994.\nRehearing denied November 17, 1994.\nDowd & Bloch, of Chicago (J. Peter Dowd, Robert E. Bloch, and Linda Wyetzner, of counsel), for appellant.\nFagel & Haber, of Chicago (Steven J. Teplinsky and Sara L. Thomas, of counsel), for appellee." }, "file_name": "0965-01", "first_page_order": 983, "last_page_order": 990 }