{ "id": 980665, "name": "MICHAEL TERRANO, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant", "name_abbreviation": "Terrano v. Retirement Board of Policemen's Annuity & Benefit Fund of City of Chicago", "decision_date": "2000-07-20", "docket_number": "No. 1\u201499\u20142758", "first_page": "270", "last_page": "277", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 270" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "536 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 683", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2615396 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "691-92" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0683-01" ] }, { "cite": "296 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "54 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934533 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "262" }, { "page": "265-66" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0260-01" ] }, { "cite": "430 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "88 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082489 ], "year": 1981, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0081-01" ] }, { "cite": "596 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 180", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498549 ], "year": 1992, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0180-01" ] }, { "cite": "603 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5782103 ], "year": 1992, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0499-01" ] }, { "cite": "468 N.E.2d 948", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "102 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156560 ], "year": 1984, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0443-01" ] }, { "cite": "672 N.E.2d 900", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260433 ], "year": 1996, "pin_cites": [ { "page": "888" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0886-01" ] }, { "cite": "606 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 76", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738801 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "88" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0076-01" ] } ], "analysis": { "cardinality": 699, "char_count": 18364, "ocr_confidence": 0.697, "pagerank": { "raw": 1.6506130260373987e-07, "percentile": 0.6926917360819106 }, "sha256": "499bc9b18af9b50dc5fbf4b9846c2e6c8d76199422efefdf15dbb8675bce45cd", "simhash": "1:5ee64d847f5f0f59", "word_count": 3015 }, "last_updated": "2023-07-14T22:05:04.441996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL TERRANO, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN\u2019S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe Retirement Board of the Policemen\u2019s Annuity and Benefit Fund of the City of Chicago (Board) appeals from an order of the circuit court which, on administrative review, reversed its decision to deny the plaintiff, Michael Terrano, duty disability benefits under section 5 \u2014 154 of the Illinois Pension Code (Code) (40 ILCS 5/5 \u2014 154 (West 1996)). For the reasons that follow, we affirm the circuit court\u2019s order reversing the decision of the Board, but modify that order in certain respects.\nOn July 10, 1995, the plaintiff became a member of the Chicago police department (Department). During training exercises on August 25, 1995, the plaintiff injured his right knee, severing the anterior cruciate ligament. He was taken to a hospital for treatment and the Department placed him on medical leave. In the months that followed, the plaintiff underwent outpatient surgery and received physical therapy. Dr. Mitchell Krieger, the plaintiff\u2019s treating physician, released him to return to work in November of 1995, and the plaintiff subsequently completed his training.\nWhile on foot patrol in June of 1996, the plaintiff experienced pain and swelling in his right knee. The Department again placed the plaintiff on medical leave and referred him back to Dr. Krieger. After examining the plaintiff, Dr. Krieger concluded that the instability and swelling of the plaintiffs knee was \u201ca continuation of his duty-related knee injury\u201d of the previous summer. Dr. Krieger recommended that the plaintiff undergo reconstructive surgery, which was performed by Dr. Ronald Silver on July 29, 1996.\nDr. Silver issued a report to the Department on November 26, 1996, which states, in pertinent part, as follows:\n\u201cMichael\u2019s [plaintiff\u2019s] knee looks great three and one-half months status post anterior cruciate reconstruction. He has full range of motion, normal stability and good strength.\nAt this time we will permit him to return to work as of December 2, 1996[,] and he will do some home exercises prior to his reevaluation in two months.\u201d\nThe Department\u2019s records indicate that the plaintiff was to report for duty on December 3, 1996. However, on December 3, he called the Department\u2019s medical section and reported that his knee was swollen. As a consequence, the plaintiff did not report for duty and was again placed on medical leave.\nThe plaintiff was examined by Dr. Silver in June of 1997. In a letter to the Department dated June 24, 1997, Dr. Silver stated:\n\u201cMy impression is that Michael [plaintiff] has made a good recovery from anterior cruciate reconstruction; however, he has significant discomfort when squatting or kneeling and is unable to jump or run for any significant distance. These limitations are permanent but otherwise he may continue work activities within those limitations.\u201d\nOn September 17, 1997, the plaintiff made application to the Board for duty disability benefits and was referred to the Board\u2019s physician, Dr. S. David Demorest, for a physical examination. Dr. Demorest examined the plaintiff on September 18, 1997, and recommended that he be \u201cre-evaluated by orthopedic surgery [sic] to assess his status and ability to return to work.\u201d\nOn September 19, 1997, the plaintiff\u2019s employment with the Department was terminated for violation of medical roll procedures.\nAt its meeting on November 25, 1997, the Board awarded the plaintiff ordinary disability benefits pursuant to section 5 \u2014 155 of the Code (40 ILCS 5/5 \u2014 155 (West 1996)), without prejudice to his claim for duty disability benefits. This action was taken because the plaintiff had not as yet been evaluated by an orthopedic surgeon as recommended by Dr. Demorest.\nThe Board referred the plaintiff to Dr. Alfred A. Akkeron, who examined the plaintiff and performed an orthopedic evaluation on December 4, 1997. In a report to the Department dated the same day, Dr. Akkeron stated:\n\u201cMy impression is that this patient continues to have laxity of the anterior cruciate ligament status post anterior cruciate ligament reconstruction. This is supported by a clinical evaluation and by the patient\u2019s history. Because of this particular condition, I do not feel that this patient will be able to perform the duties as an active police officer. I feel at the present time that he has reached his maximum medical improvement and will not get any further stability of the anterior cruciate ligament.\u201d\nThe plaintiffs application for duty disability benefits came before the Board for hearing at its regular meeting on March 11, 1998. Three witnesses testified: the plaintiff, Dr. Akkeron, and Dr. Katherine Pajak, the Department\u2019s physician. However, only the testimony of the plaintiff and Dr. Akkeron is relevant to the issues before us.\nThe plaintiff testified to the manner in which he was injured and the medical treatment he received. He stated that, on December 3, 1996, the day he was to return to work, his knee began to swell after he completed his exercises. Although he was again placed on medical leave, he did not see a physician until he was examined by Dr. Silver in June of 1997. It was the plaintiffs belief that his injury prevented him from even performing sedentary duties.\nDr. Akkeron testified to the matters contained in his report. According to Dr. Akkeron, the plaintiffs condition is related to the injury he sustained while training in August of 1995, and the injury to the plaintiffs right knee is permanent. Dr. Akkeron opined that the plaintiff could not return to duty as an active police officer, but stated that he could perform sedentary duties. On cross-examination, Dr. Akkeron admitted that he did not know what positions might be available within the Department for individuals only capable of performing sedentary duties.\nIn addition to the oral testimony taken at the meeting, the Board had before it the plaintiffs medical records, reports from the various physicians who treated and examined the plaintiff, and the Department\u2019s records concerning the plaintiffs injury and medical leave. After the hearing, the Board took the matter under advisement.\nOn August 27, 1998, a majority of the members of the Board voted to deny the plaintiffs application, and the Board issued a written decision on the same day. In its written decision, the Board found, inter alia, that the plaintiff sustained an injury to Ms right knee in the performance of an act of duty on August 25, 1995, but concluded that he was not disabled as that term is defined in the Code.\nAfter the Board rendered its decision, the plaintiff filed the instant action for administrative review, alleging that the Board\u2019s decision is against the manifest weight of the evidence and that he was deprived of a fair hearing. Initially, the circuit court issued an order affirming the Board\u2019s decision. However, after the plaintiff moved the court to reconsider, the circuit court issued an amended order, reversing the Board\u2019s decision. Specifically, the amended order provides, in pertinent part:\n\u201c[T]he decision of the Retirement Board of the Policemen\u2019s Annuity and Benefit Fund is reversed and Terrano is found to be entitled to duty disability benefits pending an offer by the Chicago Police Department of a sedentary, limited duty position that he could medically perform and remanded to the Retirement Board for that purpose,\u201d\nThe Board filed this appeal from the circuit court\u2019s order, contending: (1) that its decision to deny duty disability benefits to the plaintiff is not against the manifest weight of the evidence; and (2) that the plaintiff received a fair hearing. However, because of our resolution of the first issue raised by the Board, we need not address the second.\nThe Administrative Review Law provides that, in every action to review an administrative decision, \u201c[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.\u201d 735 ILCS 5/3 \u2014 110 (West 1998). In Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 606 N.E.2d 1111 (1992), our supreme court construed this statute and held:\n\u201c[0]n administrative review, it is not a court\u2019s function to reweigh the evidence or make an independent determination of the facts. Rather, the court\u2019s function is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence. [Citations.] An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. [Citations.]\u201d Abrahamson, 153 Ill. 2d at 88.\nDeterminations as to the weight to be given to evidence and the credibility of witnesses are matters within the province of the agency. King v. Justice Party, 284 Ill. App. 3d 886, 888, 672 N.E.2d 900 (1996). The mere fact that a conclusion opposite to the one reached by the agency is reasonable or that the reviewing court might have ruled differently will not justify the reversal of administrative findings. Abrahamson, 153 Ill. 2d at 88. If the record contains evidence to support the agency\u2019s decision, it should be affirmed. Commonwealth Edison Co. v. Property Tax Appeal Board, 102 Ill. 2d 443, 467, 468 N.E.2d 948 (1984). When, however, an administrative decision is against the manifest weight of the evidence, it is the court\u2019s duty to reverse it. Zien v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 236 Ill. App. 3d 499, 507, 603 N.E.2d 777 (1992).\nThe Board is correct in its assertion that an applicant has the burden of establishing his entitlement to duty disability benefits under the Code. Iwanski v. Streamwood Police Pension Board, 232 Ill. App. 3d 180, 184, 596 N.E.2d 691 (1992). It is the applicant\u2019s burden to establish both that he is disabled and that his disability is the result of an injury incurred in the performance of an act of duty. 40 ILCS 5/5\u2014 154 (West 1996). However, since the Board found that the injury to the plaintiffs right knee was incurred in the performance of an act of duty, the only question before us is whether the Board\u2019s finding that the plaintiff is not disabled is against the manifest weight of the evidence.\nSection 5 \u2014 115 of the Code defines a disability as a \u201ccondition of physical or mental incapacity to perform any assigned duty or duties in the police service.\u201d 40 ILCS 5/5 \u2014 115 (West 1996). In this case, the uncontradicted testimony of Dr. Akkeron, the Board\u2019s own medical expert, established that the plaintiff could not perform the duties of an active police officer. Dr. Akkeron\u2019s conclusion in this regard is supported by Dr. Silver\u2019s report of June 24, 1997, which states that the plaintiff has significant discomfort when squatting or kneeling and is unable to jump or run for any significant distance. Both physicians concluded that the plaintiffs condition is permanent. The medical evidence in the record establishing the plaintiffs physical limitations and inability to perform the duties of an active police officer is uncontradicted and, therefore, could not have been disregarded by the Board. See People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85, 430 N.E.2d 1126 (1981). Nevertheless, the Board argues that its finding that the plaintiff is not disabled is not against the manifest weight of the evidence. Its argument in this regard seems to be based upon the proposition that the plaintiff did not prove that he was disabled because he failed to establish that no limited duty position within the Department was available to him.\nThe fact that an individual has physical limitations that prevent him from performing the duties of an active police officer is not necessarily dispositive of the question of whether he is disabled within the meaning of the Code. An individual may be physically incapable of performing the duties of an active police officer and yet not be disabled within the meaning of the Code if a position is made available to him within the police department that can be performed by a person with his physical limitations. See Peterson v. Board of Trustees of the Firemen\u2019s Pension Fund, 54 Ill. 2d 260, 296 N.E.2d 721 (1973); Thurow v. Police Pension Board, 180 Ill. App. 3d 683, 536 N.E.2d 155 (1989). However, unlike the facts in Peterson, there is no evidence in the record before us that a position existed within the Department that could be performed by a person with the plaintiffs physical limitations or that any limited duty position was offered to the plaintiff. See Peterson, 54 Ill. 2d at 262. To be sure, Dr. Akkeron testified that the plaintiff could perform sedentary duties and Dr. Silver\u2019s report states that the plaintiff could work within certain specified physical limitations, but there is no evidence that any such limited duty positions existed.\nIn light of the uncontradicted medical evidence establishing that the plaintiffs injury prevents him from performing the duties of an active police officer and in the total absence of any evidence of either the existence of a limited duty position within the Department that could be performed by an individual with the plaintiffs physical limitations or that such a position was ever offered to the plaintiff, we conclude that the Board\u2019s finding that the plaintiff is \u201cnot disabled as disability is defined in the Act [Code]\u201d is against the manifest weight of the evidence. Even if we were to interpret the Board\u2019s finding as being based upon the plaintiffs perceived failure to meet his burden of proof, as the Board seems to argue, our conclusion would not change.\nOnce the evidence before the Board established that the plaintiff is physically incapable of performing the duties of an active police officer, the plaintiff met his initial burden of proving that he is disabled. Had there been evidence introduced that the Department offered the plaintiff a limited duty position, it would have been plaintiffs burden to introduce evidence that he is physically incapable of performing the duties of the position offered, and it would have been the Board\u2019s function to resolve the question. However, in the absence of any evidence that such a position was ever offered to the plaintiff, the mere existence of such a position could not support a finding that the plaintiff is not disabled. The opinion in Peterson makes it quite clear that it is a firm offer of a limited duty position that could be performed by an individual with the applicant\u2019s physical limitations that renders the applicant not disabled within the meaning of the Code despite his inability to perform the duties of an active police officer. See Peterson, 54 Ill. 2d at 265-66; see also Thurow, 180 Ill. App. 3d at 691-92. Unlike the facts in Peterson and Thurow, the Board in this case did not find that a limited duty position was made available to the plaintiff. Peterson, 54 Ill. 2d at 262; Thurow, 180 Ill. App. 3d at 691. In point of fact, the Department\u2019s records reveal that no such position was offered to the plaintiff from June 24, 1997, the date of Dr. Silver\u2019s report which placed the Department on notice that the plaintiff could work within certain physical limitations, and September 19, 1997, the date that the plaintiffs employment with the Department was terminated.\nFor the foregoing reasons, we affirm the circuit court\u2019s order reversing the decision of the Board which denied the plaintiff duty disability benefits. We are, however, compelled to exercise our power under Supreme Court Rule 366 (155 Ill. 2d R. 366) and modify the circuit court\u2019s order.\nAs stated earlier, the circuit court determined that the plaintiff was entitled to duty disability benefits \u201cpending an offer by the Chicago Police Department of a sedentary, limited duty position that he could medically perform.\u201d While we agree that, should the Department offer the plaintiff such a position, his right to duty disability benefits would cease, we do not agree that the Board is necessarily required to pay the plaintiff those benefits until such an offer is made.\nUnder the Code, there are a number of future events that could impact the plaintiffs right to receive duty disability benefits aside from an offer of a limited duty position with the Department. For example, the plaintiffs right to duty disability benefits would cease upon the happening of any of the following events: (1) the plaintiff attaining the age of 63 (40 ILCS 5/5 \u2014 154 (West 1998)); (2) the plaintiff refusing to be examined by a physician appointed by the Board (40 ILCS 5/5 \u2014 157 (West 1998)); or 3) the plaintiff being convicted of a felony while receiving duty disability benefits (40 ILCS 5/5 \u2014 227 (West 1998)). The benefits to which the plaintiff is entitled could be reduced or even suspended if he were to assume regular employment for compensation if his disability benefits plus his compensation from such employment exceeds 150% of the salary that would be paid to him if he were working in his regular position as a policeman. See 40 ILCS 5/5 \u2014 157 (West 1998). Additionally, the plaintiff will be required to undergo a physical examination once a year to determine whether he continues to be disabled and, should it be determined at some future time that the plaintiff is no longer disabled, the Board may be required to discontinue his benefits. See 40 ILCS 5/5 \u2014 156 (West 1998). Consequently, we are modifying the circuit court\u2019s order to provide merely that the decision of the Board denying the plaintiff duty disability benefits is reversed and the matter is remanded to the Board for the purpose of awarding those benefits, deleting therefrom all reference to the plaintiff\u2019s entitlement to those benefits pending an offer by the Department of a sedentary, limited duty position. How long the plaintiff will be entitled to duty disability benefits is a matter prescribed by the Code.\nAffirmed as modified.\nHALL and BARTH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "Retirement Board of Policemen\u2019s Annuity & Benefit Fund, of Chicago (David R. Kugler, of counsel), for appellant.", "Thomas J. Pleines, of Law Offices of Thomas J. Pleines, of Chicago, for appellee." ], "corrections": "", "head_matter": "MICHAEL TERRANO, Plaintiff-Appellee, v. THE RETIREMENT BOARD OF THE POLICEMEN\u2019S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201499\u20142758\nOpinion filed July 20, 2000.\n\u2014 Rehearing denied August 16, 2000.\nRetirement Board of Policemen\u2019s Annuity & Benefit Fund, of Chicago (David R. Kugler, of counsel), for appellant.\nThomas J. Pleines, of Law Offices of Thomas J. Pleines, of Chicago, for appellee." }, "file_name": "0270-01", "first_page_order": 288, "last_page_order": 295 }