{ "id": 279617, "name": "KENNETH WILFERT, Plaintiff-Appellant, v. RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO et al., Defendants-Appellees", "name_abbreviation": "Wilfert v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago", "decision_date": "2000-12-22", "docket_number": "No. 1-99-3105", "first_page": "507", "last_page": "518", "citations": [ { "type": "official", "cite": "318 Ill. App. 3d 507" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "636 N.E.2d 65", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "66-67" } ], "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5365633 ], "year": 1994, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0511-01" ] }, { "cite": "596 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "694" } ], "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": "586 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 899", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252233 ], "year": 1992, "pin_cites": [ { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0899-01" ] }, { "cite": "733 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 403", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980704 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0403-01" ] }, { "cite": "642 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333134 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "971-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0965-01" ] }, { "cite": "690 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35367 ], "year": 1998, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0379-01" ] }, { "cite": "632 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "223-24" } ], "opinion_index": 0 }, { "cite": "260 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863618 ], "year": 1994, "pin_cites": [ { "page": "412-13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0406-01" ] }, { "cite": "568 N.E.2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "142 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236630 ], "year": 1990, "pin_cites": [ { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0176-01" ] }, { "cite": "654 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 676", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291539 ], "year": 1995, "pin_cites": [ { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0676-01" ] }, { "cite": "733 N.E.2d 789", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980619 ], "year": 2000, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0298-01" ] }, { "cite": "692 N.E.2d 295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821407 ], "year": 1998, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0191-01" ] }, { "cite": "712 N.E.2d 870", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "873", "parenthetical": "interpreting \"disability\" under section 6- 112 of the Illinois Pension Code" } ], "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 600", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208120 ], "year": 1999, "pin_cites": [ { "page": "605", "parenthetical": "interpreting \"disability\" under section 6- 112 of the Illinois Pension Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0600-01" ] }, { "cite": "640 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "1248" }, { "page": "1248" }, { "page": "1249" } ], "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 539", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5367871 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "541" }, { "page": "541" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0539-01" ] } ], "analysis": { "cardinality": 1145, "char_count": 28307, "ocr_confidence": 0.742, "pagerank": { "raw": 9.465808649716013e-08, "percentile": 0.517571294697104 }, "sha256": "aaab973d5aba73d99f7bbd923c7c6372d2f001609065c7f70a795ff369d4756a", "simhash": "1:8b6f6d56a4164d74", "word_count": 4611 }, "last_updated": "2023-07-14T16:02:38.722215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KENNETH WILFERT, Plaintiff-Appellant, v. RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff Kenneth Wilfert appeals an order of the circuit court of Cook County denying his petition for administrative review of the decision by the defendant Retirement Board of the Firemen\u2019s Annuity and Benefit Fund of Chicago (Board) to terminate Wilfert\u2019s duty disability benefits. This case is related to Wilfert v. Retirement Board of the Firemen\u2019s Annuity & Benefit Fund, 263 Ill. App. 3d 539, 640 N.E.2d 1246 (1994), in which this court held that the Board erred in failing to consider the injury Wilfert sustained during \u201cwork hardening\u201d when it denied him duty disability benefits. Wilfert, a paramedic, was first injured when an automobile struck his ambulance.\nThe record on appeal discloses that on December 17, 1997, the Board commenced a hearing pursuant to section 6\u2014153 of the Illinois Pension Code (40 ILCS 5/6\u2014153 (West 1996)) (Code) to decide whether Wilfert\u2019s duty disability payments should be discontinued.\nDr. George Motto, a physician and consultant for the Board since 1973, testified that once an applicant is granted benefits, he or she is asked to return periodically for reexamination at the discretion of the Board. Dr. Motto testified' that he saw Wilfert in June 1997. and believed that Wilfert should have a functional capacity evaluation (FCE) and possibly a second opinion.\nThe FCE conducted on August 17, 1997, states that Wilfert:\n\u201ctested out at the medium-heavy physical demand level for work tolerance with a maximum lifting' ability of 70 lb from floor to knuckle, 60 lb from knuckle to shoulder and 40 lb from shoulder to overhead levels with complaints of bilateral trapezius muscle tightness and cramping sensation in right hand dorsal web space between thumb and index finger with cumulative lifting. He also . demonstrated the ability to simulate use of stair chair by pulling up and lowering Ill. lb up and down one flight of stairs without assistance, This client\u2019s job as a paramedic may require him to lift over 100 lb at various levels in various conditions. Therefore, due to decreased lift capacity, he was unable to meet job requirements. A full duty work recommendation cannot be made at this time.\u201d\nThe FCE also states that Wilfert \u201cput forth a maximum physical test effort.\u201d The FCE notes that \u201cthe position of paramedic rates at the very heavy physical demand level for work.\u201d The FCE later shows a table of \u201cPhysical Characteristics of Work\u201d which rates \u201cMedium Heavy\u201d below \u201cHeavy\u201d and \u201cVery Heavy.\u201d\nThe FCE recommended Wilfert have three to four weeks of physical therapy, followed by a work hardening program of two to three weeks. The FCE stated that the prognosis for a duty work release recommendation later was \u201cgood.\u201d Based on the FCE, Dr. Motto believed that Wilfert should have work hardening \u201cbecause there didn\u2019t seem to be a specific problem and because he was deconditioned.\u201d\nThe record contains a \u201cDischarge Note\u201d from the HealthSouth Center for Physical Therapy & Industrial Rehabilitation, which states that Wilfert had \u201cattended 3 RT. visits.\u201d Initially, Wilfert \u201cwas performing the exercise with more vigor than needed\u201d; on his second visit, Wilfert reported \u201cfeeling like he just re-injured it for the very first time in 1989.\u201d Wilfert was discharged due to lack of progress, with the discharge note stating that \u201cP.T. is not indicated at this time.\u201d The discharge note stated that Dr. Motto would be notified. At the hearing, Dr. Motto testified that Wilfert tried work hardening, but it \u201ccouldn\u2019t be completed.\u201d\nDr. Motto testified that Wilfert was then sent to Dr. James Ryan, a consultant in orthopedic surgery, for a second opinion. Dr. Ryan dictated a report which concludes as follows:\n\u201cBasically, aside from [Wilfert\u2019s] complaints and pain behavior, I could not find anything clear cut of a neurologic nature, and I noticed previous physicians have had the same problem. His EMG of 7/11/94 was read and was normal. On the basis of my physical examination, which was negative, I feel that he is not disabled and may return to full duties after a period of work conditioning, because he has been off from work for so long. There is no impairment or disability.\u201d\nDr. Ryan\u2019s report details the examination of Wilfert\u2019s left shoulder, including tables showing the active and passive ranges of motion. Dr. Ryan\u2019s report does not contain any description of any test requiring Wilfert to lift weight.\nDr. Motto testified that he also received a letter from Dr. Steven M. Zak, regarding a follow-up examination conducted on November 21, 1997. Dr. Zak wrote that while Wilfert had improved since October, he was \u201cnot yet back to his baseline.\u201d Wilfert was still taking ibuprofen, Flexeril and Ultram. Dr. Zak opined that Wilfert had \u201c[c]hronic left-sided cervical polyradiculopathy with possible exacerbation by excessive stretching at physical therapy\u201d and \u201c[p]ossible left supraspi-natus tendonitis.\u201d\nDr. Zak recommended that Wilfert resume physical therapy at the HealthSouth. Dr. Zak opined that therapy should be limited to heat, ultrasound and massage, followed by gentle stretching and possible cervical traction if tolerated. Dr. Zak opined that while the possibility of work hardening could be addressed at a later time, the FCE results showed he was not neurologically able to return to work as a paramedic. Dr. Zak also noted that if Wilfert\u2019s symptoms persisted or worsened, Wilfert would need a follow-up EMG and nerve conduction studies.\nAt the hearing, Dr. Motto testified that Dr. Zak\u2019s letter \u201chad some different recommendations\u201d from those of Dr. Ryan.\nDr. Motto recommended that Wilfert have work hardening under the direction of Dr. Ryan. Dr. Motto acknowledged that Dr. Zak is a board-certified neurologist whereas Dr. Ryan is an orthopaedist, but opined that an orthopedic surgeon is highly qualified to evaluate neu-rologic problems of the musculoskeletal system. Dr. Motto testified that he believed Dr. Zak\u2019s opinion was based more on the FCE than any of the neurological findings.\nWilfert testified that he understood that he was receiving duty disability benefits due to a neurological injury that prevented him from lifting heavy weights and grasping properly. Wilfert did not think he could serve as a paramedic in his present condition but was willing to try therapy.\nThe Board voted to send Wilfert into a work hardening program and that Dr. Motto should consult with Drs. Zak and Ryan regarding the appropriate course of treatment.\nOn January 21, 1998, Dr. Motto sent a letter to the Board, stating that he had contacted Dr. Zak, whose only input was that Wilfert should have three to four weeks of physical therapy prior to entering a work hardening program. Dr. Motto also wrote that he had contacted Dr. Ryan, who agreed to prescribe the therapy, then reevaluate Wilfert prior to a work hardening regime.\nDr. Zak examined Wilfert on January 23, 1998. A letter from Dr. Zak to Dr. Hugh Russell of the Chicago fire department stated that Wilfert\u2019s symptoms had not changed significantly. Dr. Zak\u2019s assessment of Wilfert remained largely the same, but added that it was \u201cimperative\u201d that Wilfert have a follow-up EMG and nerve conduction study to ensure he did not have active denervation in the cervical roots or an evolving left carpal tunnel syndrome.\nThe record contains Wilfert\u2019s discharge summary from NovaCare Outpatient Rehabilitation, which states that Wilfert had nine visits between February 2-20, 1998. The report characterizes Wilfert\u2019s compliance as \u201cGood,\u201d but notes as part of the subjective evaluation that his symptoms worsened with exercise. The final assessment was that there was little or no improvement and that Wilfert\u2019s progress was limited by subjective complaints. The conclusion was that further physical therapy \u201cwould not significantly improve his objective measurements secondary to limiting behavior.\u201d\nOn March 3, 1998, Dr. Ryan examined Wilfert and wrote Dr. Motto that there was no evidence of a polyradiculopathy. Dr. Ryan concluded that Wilfert could not respond to any further therapy and \u201calready had a work conditioning program.\u201d Dr. Ryan did not recommend another program for Wilfert because \u201cmost of his problems are functional and consist of pain and exaggeration.\u201d Dr. Ryan wrote that Wilfert was not disabled and should be able to work his regular job without restrictions.\nOn Wednesday, April 15, 1998, the Board resumed the hearing. Wilfert\u2019s counsel sought a continuance, stating that he did not receive materials from the Board, including Dr. Ryan\u2019s report, until the late afternoon of the previous Friday. Board attorney Lawrence Krulewich did not dispute this but recommended, based on Dr. Ryan\u2019s report, that Wilfert\u2019s benefits be suspended subject to a decision on the merits. Wilfert\u2019s counsel objected. The Board granted the continuance without suspending Wilfert\u2019s benefits.\nOn April 17, 1998, Dr. Zak wrote Dr. Russell regarding a follow-up examination of Wilfert, noting that the physical therapy ended without any definite improvement and that there was no follow-up EMG and nerve conduction study. Dr. Zak repeated his assessment of \u201c[c]hronic left-sided cervical polyradiculopathy with possible exacerbation by excessive stretching at physical therapy\u201d and \u201c[p]ossible left supraspinatus tendonitis.\u201d Dr. Zak again noted that, based on Wilfert\u2019s most recent FCE, he was not neurologically able to work as a paramedic with a very heavy job level description.\nOn May 20, 1998, the Board resumed the hearing. Dr. Motto summarized his prior testimony and testified regarding his consultation with Dr. Zak. Dr. Motto also testified regarding NovaCare\u2019s assessment:\n\u201cQ. Does it mean Mr. Wilfert was not performing at his maximum level?\nA. Well, it says hard to improve because of the limiting behaviors of pain and the way he was responding that he wasn\u2019t progressing at all.\nQ. So pain could be causing the limitation of behaviors?\nA. Yes.\nQ. That term does it suggest malingering or not?\nA. Well, it suggests \u2014 I would say that it is to the point where I think the therapist put that in because they could not make an objective evaluation because of his \u2014 because of the behaviors. Maybe not just pain.\nQ. We\u2019re not saying that this \u2014 this does not necessarily say that Mr. Wilfert is being less than honest in his performance, does it?\nA. No, it does not.\u201d\nDr. Motto then read Dr. Ryan\u2019s conclusions into the record.\nMr. Krulewich then asked Dr. Motto about his discussions with Dr. Zak, his review of all the reports and his prior examination of Wilfert, culminating in the following exchange:\n\u201cQ. Based on all of that can you say to a reasonable degree of medical certainty whether or not Mr. Wilfert is still disabled or whether his disability has ceased?\nA. Say that \u2014 ask me the question again.\nQ. After reviewing all of the documents I referred to and having the conversation with the doctors that I referred to and doing the examination of Kenneth Wilfert, do you have an opinion to a reasonable degree of medical certainty whether or not Kenneth Wil-fert\u2019s disability has ceased?\nA. No.\nQ. You don\u2019t have an opinion?\nA. I don\u2019t have an opinion.\nQ. Well, this board has the responsibility to pay benefits to a person who\u2019s disabled after making a determination of that and to stop payment of benefits to a person whose disability has ceased.\nCan you formulate an opinion to a reasonable degree of medical certainty at this point as to whether or not Mr. Wilfert is currently disabled?\n[WILFERT\u2019S COUNSEL]: I think that has already been asked and answered.\nMR. KRULEWICH: It hasn\u2019t. Counsel. It is a slightly different question. BY MR. KRULEWICH:\nQ. Is he still disabled?\nThe specific question is do you have an opinion as to whether he\u2019s still disabled?\nA. I understand the question.\nYes.\nQ. What\u2019s your opinion?\nA. At the present time I believe he is not disabled.\u201d\nDr. Motto testified that this opinion was \u201c[biased on the evaluations and the consultants.\u201d\nDr. Motto agreed with Dr. Ryan because Wilfert\u2019s problems were \u201cprimarily subjective\u201d and that Dr. Zak\u2019s evaluation uses words like \u201cpossible\u201d and \u201cprobable,\u201d nothing definite. Dr. Motto opined that the subjective complaints were disproportionate to the objective findings, stating that \u201cthis is the problem that has run through my mind in this situation from the beginning.\u201d\nOn cross-examination, Dr. Motto acknowledged that the FCE stated that Wilfert was unable to meet the demands of his job. Dr. Motto admitted that Dr. Ryan\u2019s March 3, 1998, report referred to \u201cour prior reports,\u201d but that Dr. Ryan had produced only one prior report. Dr. Motto admitted that there was nothing in either of Dr. Ryan\u2019s reports to show that Dr. Ryan ever reviewed or considered the August 1997 FCE. Dr. Motto admitted that he could point to nothing in Dr. Ryan\u2019s reports that discusses Wilfert\u2019s work capabilities or suggests that Dr. Ryan considered or knew the requirements for working as a paramedic.\nDr. Motto admitted that Dr. Ryan\u2019s March 3, 1998, letter did not disclose what tests or procedures were used in examining Wilfert. Dr. Motto testified that the fact that Dr. Ryan made conclusions was probative of the fact that he made examinations sufficient to reach those conclusions.\nDr. Motto testified that it was necessary to link an injury or condition to a person\u2019s job to decide whether that person was disabled. Dr. Motto stated that this was the purpose of the FCE, but that the FCE was only part of the process. Dr. Motto added that one must also be of the opinion that a disability exists.\nDr. Motto admitted that a normal EMG does not conclusively establish the absence of a neurological condition. A person can complain of symptoms such as pain, tingling and numbness and have a normal EMG and nerve conduction study. In such circumstances, there is an absence of objective evidence of the condition. Dr. Motto admitted that Dr. Zak wrote him that he needed a new EMG and nerve conduction study but never told the Board that Dr. Zak wrote that it was \u201cimperative\u201d that these tests be performed.\nWilfert testified regarding the exacerbation of his condition by the physical therapy. Wilfert testified regarding his medication, stating that he had been told by Chicago fire department personnel that he could not work as a paramedic while on the medication. Wilfert testified that during his examination by Dr. Ryan on March 3, 1998, he had told Dr. Ryan he had four EMGs, two of which showed abnormalities. According to Wilfert, Dr. Ryan stated he was going to get those reports, review them, and send Dr. Motto a letter. Wilfert also testified that, during this examination, Dr. Ryan performed a test where Dr. Ryan applied pressure to the top of Wilfert\u2019s head while in a prone position. Wilfert testified that when he reported a severe neck pain shooting into his head, Dr. Ryan said that this was normal.\nThe Board concluded the hearing by taking the matter under advisement. On June 24, 1998, the Board denied a motion to continue Wilfert\u2019s benefits. On July 31, 1998, Wilfert filed a complaint in administrative review in the circuit court of Cook County. On August 6, 1999, the circuit court entered an order denying Wilfert\u2019s complaint. Wilfert now appeals.\nThis is an appeal in administrative review. In this case, the Board\u2019s decision was factual in part, because it involved considering whether the facts supported a ruling that Wilfert\u2019s disability had ceased. However, the Board\u2019s decision also concerned a question of law because \u201cdisability\u201d is a statutory term referring to a \u201ccondition of physical or mental incapacity to perform any assigned duty or duties in the fire service,\u201d which is subject to legal interpretation. 40 ILCS 5/6\u2014 112 (West 1996). See also Carmody v. Retirement Board of the Fireman\u2019s Annuity & Benefit Fund, 305 Ill. App. 3d 600, 605, 712 N.E.2d 870, 873 (1999) (interpreting \u201cdisability\u201d under section 6\u2014 112 of the Illinois Pension Code). Thus, this case presents a mixed question of fact and law to which the clearly erroneous standard of review is applicable. See, e.g., City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). Accordingly, the agency\u2019s decision is to be affirmed unless the court is left with the definite and firm conviction that a mistake has been committed. Friends of Israel Defense Forces v. Department of Revenue, 315 Ill. App. 3d 298, 303, 733 N.E.2d 789, 793 (2000).\nIn addition, much of the evidence in this case is documentary. Although factual findings by an administrative agency are held to be prima facie true, a reviewing court may evaluate documentary evidence de novo. Ambrose v. Thornton Township School Trustees, 274 Ill. App. 3d 676, 680-81, 654 N.E.2d 545, 548 (1995).\nWilfert argues that the overwhelming weight of the competent evidence showed he remained disabled. The Board relied on the testimony of Dr. Motto and the reports of Dr. Ryan. The weight accorded an expert opinion is measured by the facts supporting it and the reasons given for it; an expert opinion cannot be based on guess, surmise or conjecture. Doser v. Savage Manufacturing & Sales, Inc., 142 Ill. 2d 176, 195-96, 568 N.E.2d 814, 823 (1990); Simers v. Bickers, 260 Ill. App. 3d 406, 412-13, 632 N.E.2d 219, 223-24 (1994). A disability decision is not only clearly erroneous, but also against the manifest weight of the evidence, where the medical opinion was based upon conjecture. MacDonald v. Board of Trustees of the Park Ridge Police Pension Fund, 294 Ill. App. 3d 379, 384, 690 N.E.2d 636, 640 (1998).\nFor example, in Sullivan v. Retirement Board of Firemen\u2019s Annuity & Benefit Fund, 267 Ill. App. 3d 965, 642 N.E.2d 727 (1994), the Board denied permanent duty disability benefits to a paramedic related to a back injury. This court determined that Dr. Russell\u2019s findings, corroborated by Dr. Motto\u2019s testimony, could not sustain the Board\u2019s decision that plaintiff was not disabled. The record showed that Dr. Russell\u2019s report was relatively perfunctory, misstated the results of Sullivan\u2019s tests and could not be reconciled with the findings of the medical professionals who examined and treated Sullivan. The results of Sullivan\u2019s FCE, which Dr. Motto had testified was the most objective measure of functional capacity, showed that plaintiff was unable to perform the tasks of his job. A B200 computerized weightlifting test showed that Sullivan had exerted consistent effort, yet scored low in range of motion, isometric tests, and in functional back strength. Dr. Russell\u2019s report contained no mention of these results. While the Board vaguely suggested Sullivan may have been malingering, this court found no support for that suggestion in the record. Sullivan, 267 Ill. App. 3d at 971-72, 642 N.E.2d at 731.\nIn Nowak v. Retirement Board of Firemen\u2019s Annuity & Benefit Fund, 315 Ill. App. 3d 403, 733 N.E.2d 804 (2000), this court affirmed a denial of duty disability benefits to a paramedic diagnosed with cervical and lumbar radiculopathy, based on statutory grounds not raised by the Board here. Justice Buckley took the unusual step of specially concurring in the opinion he authored to note that he otherwise believed that the Board\u2019s decision was against the manifest weight of the evidence. 315 Ill. App. 3d at 412, 733 N.E.2d at 810 (Buckley, J., specially concurring). Justice Buckley noted that the treating physician and the objective FCE both concluded that Nowak was unable to perform as a paramedic. 315 Ill. App. 3d at 412-13, 733 N.E.2d at 811 (Buckley, J., specially concurring). While Dr. Motto had found fault with the work hardening program report concluding Nowak was unable to perform as a paramedic because Dr. Motto could not reconcile Nowak\u2019s subjective complaints with the objective findings of the report, the record showed that Dr. Motto misstated Nowak\u2019s testimony regarding the subjective complaints. 315 Ill. App. 3d at 413, 733 N.E.2d at 811 (Buckley, J., specially concurring). Justice Buckley further wrote that Dr. Ryan, the only doctor to unequivocally testify that Nowak was not disabled, did not consider the findings of the work hardening program and thus lacked the information required to objectively evaluate whether Nowak could work as a paramedic. 315 Ill. App. 3d at 413, 733 N.E.2d at 811 (Buckley, J., specially concurring).\nThis case is disturbingly similar to Sullivan and Nowak. Wilfert is a paramedic who has been consistently diagnosed by his treating physician with a radiculopathy. Dr. Ryan disagreed, but provided no explanation for the problem of pain that Dr. Ryan states does exist. The record shows that Dr. Ryan\u2019s report was as conclusory as Dr. Russell\u2019s report was in Sullivan. Dr. Motto testified that the fact that Dr. Ryan made conclusions was probative of the fact that he made examinations sufficient to support them, but this assumption lacks any factual basis in the record. Indeed, Wilfert\u2019s counsel brought out factual inaccuracies in Dr. Ryan\u2019s reports, including the statement that Wilfert \u201calready had a work hardening program.\u201d\nAs in Nowak, Dr. Motto noted that the subjective complaints were disproportionate to the objective findings. Dr. Motto has always characterized Wilfert\u2019s complaints as \u201csubjective with minimal objective findings.\u201d Wilfert, 263 Ill. App. 3d at 541, 640 N.E.2d at 1248. While Dr. Motto may have truthfully testified that \u201cthis is the problem that has run through my mind in this situation from the beginning,\u201d he also opined that Wilfert was disabled when he first applied for benefits. Wilfert, 263 Ill. App. 3d at 541, 640 N.E.2d at 1248.\nMoreover, as in Nowak, Dr. Motto misstated evidence. Dr. Motto testified that Dr. Zak\u2019s assessments contained \u201cnothing definite,\u201d just conditions that were \u201cprobable\u201d or \u201cpossible.\u201d The record shows that Dr. Zak\u2019s reports state that Wilfert had a chronic left-sided cervical polyradiculopathy; only the exacerbation of that condition was listed as \u201cpossible.\u201d\nIn sum, the record lacks any credible factual basis for the conclusion that Wilfert no longer suffered from the same injuries that led to his receipt of duty disability benefits.\nTurning to the job-related element of the disability determination, the FCE found that Wilfert was unable to meet the job requirements of a paramedic. Dr. Motto testified that the FCE was only \u201cpart of the process,\u201d but did not contradict his testimony in Sullivan that the FCE was the most objective measurement of functional capacity. The discharge summary from NovaCare Outpatient Rehabilitation stated that there was little or no improvement. Moreover, when the objective tests show that the applicant is unable to perform, exaggeration would seem to be relevant only to a claim of malingering. Dr. Motto avoided a direct answer to direct questioning on the subject. Dr. Ryan\u2019s report claims Wilfert is exaggerating. However, the FCE states that Wilfert put forth maximum effort. The NovaCare discharge summary states his compliance was good. The HealthSouth discharge note states that Wilfert tried to do too much at the outset of therapy. Thus, as in Sullivan, the suggestion of malingering is negated by the objective evidence.\nMoreover, as in Nowak, Dr. Ryan\u2019s report does not consider the objective testing that concluded Wilfert was unable to perform as a paramedic. Indeed, Dr. Ryan\u2019s report does not even suggest that Dr. Ryan is aware of the standards and job demands by which paramedics are to be evaluated.\nIn Nowak, Dr. Motto testified that he was unable to conclude whether Nowak was disabled. Nowak, 315 Ill. App. 3d at 407, 733 N.E.2d at 807. In this case, Dr. Motto opined that Wilfert\u2019s disability had ceased. However, the transcript shows that Dr. Motto first testified that he had no opinion to a reasonable degree of medical certainty on this ultimate issue.\nIndeed, the transcript shows that Dr. Motto gave an opinion over Wilfert\u2019s objection, after repeated questioning from the Board\u2019s attorney, including a \u201creminder\u201d to Dr. Motto that the Board had a responsibility to stop paying benefits to a person whose disability has ceased. That responsibility, however, cannot require a doctor to render an opinion to a reasonable degree of medical certainty if in fact the doctor does not hold such an opinion. Nor should that responsibility result in the reinstatement of a person as a paramedic who cannot meet established weight-lifting requirements for the job.\nThe Board claims that Dr. Motto initially did not understand the question. The record shows that Dr. Motto asked that the question be repeated once. A misunderstanding thereafter seems unlikely in light of Dr. Motto\u2019s years of experience, which included attending hearings such as this and answering the Board\u2019s questions on the issue of whether an applicant has a disability. The transcript does not show that the question was confusing or poorly phrased.\nEven if the Board\u2019s reading of the transcript is correct, Dr. Motto testified that his opinion was \u201c[biased on the evaluations and consultants.\u201d As the discussion above shows, Dr. Motto\u2019s opinion and Dr. Ryan\u2019s opinions lack a factual basis in this record and are often contradicted by the tests and reports Drs. Motto and Ryan ordered.\nIn sum, the Board\u2019s decision here was clearly erroneous; indeed, it was against the manifest weight of the evidence.\nThe Board\u2019s error was compounded by its allocation of the burden of proof. The Board maintains that Wilfert\u2019s burden of establishing an entitlement to duty disability payments remains with him when he is reexamined pursuant to section 6 153 of the Illinois Pension Code (40 ILCS 5/6\u2014153 (West 1996)). Section 6\u2014153 is silent on the issue.\nThe parallel provision of the Illinois Pension Code governing cities with populations under 500,000 requires satisfactory proof to the Board of recovery. 40 ILCS 5/4\u2014112 (West 1996). Article 6 of the Illinois Pension Code serves an equivalent purpose to the objectives of worker\u2019s compensation and should be liberally construed in favor of the applicant to achieve its beneficent purpose. Wilfert, 263 Ill. App. 3d at 543, 640 N.E.2d at 1249. The burden of proof for terminating worker\u2019s compensation benefits falls on the employer. See, e.g., Fermi National Accelerator Lab v. Industrial Comm\u2019n, 224 Ill. App. 3d 899, 911, 586 N.E.2d 750, 758 (1992). Also, the moving party in a proceeding generally carries the burden of proof. See, e.g., Iwanski v. Stream-wood Police Pension Board, 232 Ill. App. 3d 180, 184, 596 N.E.2d 691, 694 (1992). As Wilfert already was awarded benefits, the Board appears to be the moving party in seeking to discontinue them. Improperly shifting the burden of proof is plain error. See, e.g., Wayne County Press, Inc. v. Isle, 263 Ill. App. 3d 511, 513, 636 N.E.2d 65, 66-67 (1994).\nIn this case, the transcript and the Board\u2019s brief make clear that the Board believed the burden was on Wilfert to show he remained disabled, rather than on the Board to show his disability had ceased. This was plain error.\nFor all of the aforementioned reasons, the judgment of the circuit court of Cook County is reversed. This case is remanded to the circuit court for a determination of any sum the Board owes plaintiff.\nReversed and remanded for further proceedings.\nBUCKLEY and GALLAGHER, JJ., concur.\nDr. Motto testified that an EMG is objective and that Wilfert\u2019s most recent EMG was normal, but admitted that a normal EMG does not conclusively establish the absence of a neurological condition. Also, no EMG or nerve conduction study had been performed since 1994, and Dr. Motto did not order new tests or even advise the Board that Wilfert\u2019s treating physician had written that new tests were \u201cimperative.\u201d Given this record, Dr. Motto\u2019s reliance on the lack of objective testing is ironic.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" } ], "attorneys": [ "Brown, Udell & Pomerantz, Ltd., of Chicago (Robert J. Peters, of counsel), for appellant.", "Burke Burns & Pinelli, Ltd., of Chicago (Lawrence E. Flood and Mary Patricia Burns, of counsel), for appellees." ], "corrections": "", "head_matter": "KENNETH WILFERT, Plaintiff-Appellant, v. RETIREMENT BOARD OF THE FIREMEN\u2019S ANNUITY AND BENEFIT FUND OF CHICAGO et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1\u201499\u20143105\nOpinion filed December 22, 2000.\nRehearing denied February 27, 2001.\nBrown, Udell & Pomerantz, Ltd., of Chicago (Robert J. Peters, of counsel), for appellant.\nBurke Burns & Pinelli, Ltd., of Chicago (Lawrence E. Flood and Mary Patricia Burns, of counsel), for appellees." }, "file_name": "0507-01", "first_page_order": 527, "last_page_order": 538 }