Docket No. 101265.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
LAWRENCE WADE, Appellant, v. THE CITY OF NORTH
CHICAGO POLICE PENSION BOARD, Appellee.
Opinion filed November 1, 2007.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
and Burke concurred in the judgment and opinion.
Justice Kilbride took no part in the decision.
OPINION
Plaintiff, Lawrence Wade, filed an application for a disability
pension with defendant, the City of North Chicago Police Pension
Board (Board). At the commencement of plaintiff’s hearing before the
Board, plaintiff’s counsel requested limited consideration for a “duty-
related disability pension” only, pursuant to section 3–114.1 of the
Illinois Pension Code (Code) (40 ILCS 5/3–114.1 (West 2002)).
Following a hearing, the Board denied plaintiff a line-of-duty disability
pension on three independent bases, concluding that plaintiff “did not
incur a disability from the performance of an act of duty,” his
“condition does not render it necessary for his suspension or
retirement from police service,” and “three doctors selected by the
pension board did not certify the Applicant as disabled,” after
conducting examinations of plaintiff pursuant to section 3–115 of the
Code (40 ILCS 5/3–115 (West 2002)). Plaintiff thereafter filed an
action for administrative review in the circuit court of Lake County,
and the circuit court ultimately confirmed the Board’s decision.
Plaintiff then appealed to the appellate court, arguing that (1) the
Board had denied him a fair and impartial hearing because it had relied
solely on the medical report of one physician (Dr. James Milgram) in
denying him a disability pension; (2) the Board’s decision was
contrary to the manifest weight of the evidence; and (3) the Board
improperly interpreted section 3–115 of the Code to mandate that all
three examining physicians selected by the Board certify the applicant
disabled as a prerequisite to a disability award. The appellate court
initially found that the Board had correctly interpreted section 3–115
and had properly denied plaintiff’s application for disability pension
benefits on that basis alone. Thus, the appellate court did not reach the
other issues raised by plaintiff.
Plaintiff thereafter petitioned this court for leave to appeal. In
conjunction with a denial of leave to appeal, we issued a supervisory
order, directing the appellate court to vacate its judgment in Wade v.
City of North Chicago Police Pension Board, 353 Ill. App. 3d 852
(2004), and remanding to that court, in light of Turcol v. Pension
Board of Trustees of Matteson Police Pension Fund, 214 Ill. 2d 521
(2005), “to resolve the issue of whether the Board’s determination
that plaintiff had not proven his disability was against the manifest
weight of the evidence.” See Wade v. City of North Chicago Police
Pension Board, 215 Ill. 2d 620 (2005) (supervisory order). On
remand, the appellate court found that the Board’s determination was
indeed against the manifest weight of the evidence; however, the
appellate court adhered to its earlier interpretation of section 3–115,
and again upheld the denial of disability benefits on that basis. 359 Ill.
App. 3d 224. We granted plaintiff’s petition for leave to appeal. 210
Ill. 2d R. 315(a).
If the appellate court is correct in holding that the Board’s
determination is against the manifest weight of the evidence, then the
question of section 3–115’s proper interpretation is squarely before
us; if the appellate court is incorrect, we need not address the
interpretational issue. Therefore, we first consider whether the
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Board’s decision on disability was in fact against the manifest weight
of the evidence. To that end, we set forth a summary of the evidence
bearing upon that issue, consisting of plaintiff’s testimony before the
Board, his medical records, and the reports of examining physicians
selected by the Board.
Plaintiff testified he was working “full duty” as a patrolman for the
City of North Chicago on April 20, 2002, when he responded to the
scene of an arrest to assist other officers in transporting an arrestee.
As plaintiff was bringing the handcuffed prisoner from the scene of the
arrest and down a steep, rocky embankment, the prisoner stumbled
and began to fall. Plaintiff tried to keep the arrestee from falling, the
two became entangled, and both “tumbled” to the bottom of the hill.
Plaintiff testified when he stood up he felt pain in his right knee
immediately. When he got back to the police station, he noticed, in
addition to the pain, “some slight bruising” of the knee and swelling.
From the police station, he was taken to the hospital, where an X-ray
was taken, an immobilizer was applied to his leg, and he was given
crutches.
Plaintiff was subsequently seen by Dr. Christ Pavlatos, who
ordered magnetic resonance imaging (MRI) of plaintiff’s knee.
According to plaintiff, Pavlatos later told him the MRI had revealed
two tears of the “inner and outer portion” of the right knee and,
consequently, surgery would be required. Surgery was in fact
performed, and plaintiff thereafter underwent eight weeks of physical
therapy. Plaintiff recalled that, at some point during his postoperative
recovery, “[t]here was some swelling and some fluid built up on the
knee again.” In response, his doctor drained fluid from the knee and
on two occasions administered cortizone injections. Plaintiff testified
that, after his May 2002 knee surgery, he worked in a sedentary
capacity for the City of North Chicago until February of 2003.
Plaintiff stated: “At that point I had my knee drained for the second
time, another 25 CCs of fluid was taken out and two more injections.
And at that point my doctor said, ‘This knee is just not responding and
you’re just not able to work,’ period.” Plaintiff never returned to “full
duty” as a patrolman.
Plaintiff testified, as of the time of the June 19, 2003, hearing,
pursuant to doctors’ orders, he was restricted to “a permanent
sedentary type of work situation, a sit-down job.” No doctor had
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released him to go back to work as a patrolman. Plaintiff
acknowledged receipt of a letter, dated September 23, 2002, from the
deputy chief of operations for the City of North Chicago, advising him
that the City of North Chicago did not have a permanent sedentary
position for a police officer, and informing him he had two options:
retire or apply for a disability pension. He obviously chose the latter
course.
At the hearing, plaintiff testified that he experiences pain just
walking. He rated his pain as 7 on a 10-point scale. He said his knee
is weak and sometimes locks or buckles. He stated he sometimes
experiences a grinding sensation in the knee. He claimed he “could
only sit for about 20 minutes, stand for about 25 to 30 minutes, and
walk for about 25 minutes,” before he had pain in the knee. Plaintiff
reiterated that he was working “full duty” prior to the April 2002
injury.
Plaintiff acknowledged preexisting problems with his knee in the
fall of 2001, noting “the pain, the discomfort, the problems getting in
and out” of his squad car. He stated he saw Dr. Pavlatos for that
condition on December 27, 2001. Plaintiff said he could not recall
missing work for any reason between that office visit and his April
2002 injury.
The Board had before it plaintiff’s rather extensive medical
records, most notably those evincing plaintiff’s medical treatment with
Dr. Roger Collins. An early entry in that file, dated July 30, 1992,
indicates that plaintiff reported a 1989 injury to his right knee,
sustained while playing football. According to plaintiff, the knee
became painful and later became swollen. Also in that entry, plaintiff
reported knee pain after participating in basketball games in
November of 1991. With respect to his 1992 knee complaints, the file
indicates that plaintiff reported pain in both knees “with prolonged
sitting.” He stated the first few steps after prolonged sitting might be
“quite painful.” At that time, he informed Dr. Collins that he had not
experienced locking of the knees, but he had occasionally had bilateral
buckling since 1989. He said he also occasionally had pain in the
knees during sleep. X-rays taken in 1992 revealed “scant early
degenerative changes” in plaintiff’s knees.
The next entry in Dr. Collins’ records is dated August 5, 1997.
According to Collins’ file, plaintiff was seen on that date for an
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evaluation of his right knee. Plaintiff stated he had been running bases
when he felt a “pop” in his right knee accompanied by immediate pain.
The entry notes:
“He recalls that he injured his knee in the past when he was
about 27 years of age. He was playing football. He was on the
ground and another player fell on his knees causing him to go
into hyperextension. He developed immediate swelling.”
Plaintiff reported having had problems with his knees for a number of
years. Some symptoms were similar to those mentioned in the 1992
entry, such as pain and stiffness after sitting. Collins noted swelling of
the right knee on the date of examination. After further assessment,
Collins discussed the risks and benefits associated with surgery.
Plaintiff opted for surgery. Postoperative file entries dated August
19, August 25, and September 27, 1997, indicate, at the time of
surgery, a “Grade II chondromalacia or thinning on the weight-bearing
surface of the medial and lateral femoral condyles” was noted. Plaintiff
was found to have “torn medial and lateral menisci” and “a defect on
the patellofemoral groove.” Collins performed “partial medial and
lateral meniscectomies and a lateral release.” Collins noted the
findings of plaintiff’s arthroscopy were “more consistent with what we
would see with someone in their 50’s, rather than someone who is 38
years of age.”
Plaintiff’s recovery from the surgery was problematic. A March
10, 1998, file entry indicates plaintiff had developed discomfort in the
knee and was having difficulty with stairs. He had a persistent and
“significant” swelling of his knee. Collins speculated it was “possible”
that plaintiff had torn more of the lateral meniscus. He noted “[t]he
posterior portion perhaps could have completely torn and displaced
slightly,” but he observed plaintiff did “not have mechanical
symptoms.” Collins decided to aspirate fluid from the knee, and
followed that with an injection of “2 cc DepoMedrol and 5 cc
Marcaine.” In a subsequent entry, dated January 7, 1999, Collins
reported that plaintiff was seen in the office reporting a “fair amount
of swelling” over the previous month. In the assessment portion of
that entry, Collins noted that plaintiff’s “articular cartilage is probably
progressively flaking off.” Collins concluded: “I suspect in the long
run, he will continue to have problems because he does have a fair
amount of pathology within the knee.”
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It appears that plaintiff next consulted a physician for his knee
problems on December 27, 2001, when he saw Dr. Christ Pavlatos. At
that time, plaintiff reported he had “been having bilateral knee pain for
the past 1½ years.” He complained of discomfort and occasional
swelling. Pavlatos’ examination of plaintiff revealed “a little
patellofemoral pain and trace medial joint line pain.” Pavlatos stated:
“We are probably dealing with patellofemoral pain with mild early
degenerative arthritis.” Pavlatos recommended therapy and directed
plaintiff to return in six weeks. The file evinces a phone consultation
on January 21, 2002, in which plaintiff reported “mild improvement,”
though he still had discomfort in the knee. Pavlatos recommended
“light duty” until plaintiff improved his quad strength. A notation
dated March 4, 2002, indicates that plaintiff had reported he was
“doing much better,” although he occasionally had “some discomfort.”
On that date, Pavlatos stated plaintiff could return to work at “full
duty.”
After plaintiff’s reported knee injury of April 20, 2002, he again
consulted with Pavlatos. On April 25, 2002, plaintiff reported having
sustained a twisting injury to his knee and complained of “significant
pain and swelling.” Pavlatos’ file entry of that date states: “Pain is
along the medial and lateral aspect of his right knee. Nis [sic] history
of a pop noted.” Pavlatos’ physical examination revealed effusion in
plaintiff’s right knee, mild patellofemoral pain, and flexion limited by
pain. X-rays showed evidence of “patellofemoral and medial
compartment arthritic changes.” After reviewing plaintiff’s MRI,
Pavlatos observed what he believed to be “a medial and lateral
meniscus tear.” In Pavlatos’ opinion, plaintiff had sustained “a new
tear of the *** lateral side and possibly the medial side.” Pavlatos
recommended right knee arthroscopy to address “a new lateral
meniscus tear and probable recurrent medial meniscus tear.” As far as
work was concerned, Pavlatos prescribed “a sit down job *** with no
more than 4 hrs. per day working.”
Surgery was performed on May 17, 2002. Pavlatos’ operative
report noted, inter alia, a “posterior horn tear of the medial meniscus”
and a “degenerative flap tear of the lateral meniscus.”
A postoperative notation dated May 29, 2002, states that plaintiff
was doing well, but had some mild discomfort. Already, on that date,
Pavlatos’ notes indicate that he did not believe plaintiff could ever
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return to full duty: “I do feel this patient will require a permanent
position that involves no running or excessive standing and a sit down
job would be my preference for this patient because of the degree of
arthritis he has at this young age.” Plaintiff returned for another
appointment with Pavlatos on June 19, 2002. Pavlatos noted, “He’s
a little over four weeks post knee arthroscopy for an arthritic knee.”
Plaintiff continued to complain of occasional pain. Pavlatos’
examination showed plaintiff still had a “trace” of effusion and limited
flexion. Pavlatos aspirated “20 ccs of clear yellow fluid from
[plaintiff’s] knee and a cortisone injection was given.” At a subsequent
office visit on August 2, 2002, plaintiff again reported discomfort,
“especially after prolonged periods of standing or excessive walking.”
Trace effusion was still noted, as was patellofemoral pain. Under the
category of “impression,” Pavlatos wrote: “Patient with degenerative
arthritis with persistent patellofemoral pain.” Under the heading,
“recommendation,” Pavlatos noted:
“At this point I do feel that this patient will require permanent
job modifications where he will need to have an office or desk
type job because of the degree of arthritis that he does have in
his knee. I do feel the arthritis was present prior to his
accident, although it certainly could [have] been aggravated by
his accident at work.”
Plaintiff was seen by Pavlatos again on September 12, 2002,
having been previously engaged in “sit down” work pursuant to
Pavlatos’ recommendation. Still, plaintiff reported having “significant
pain” over the anterior medial aspect of his knee, with an occasional
“catching sensation.” Plaintiff said his pain was sometimes disabling
to the point that he walked with a limp. Pavlatos’ examination again
revealed patellofemoral and medial compartment pain, and pain
limiting flexion. Pavlatos’ impression was: “Flare up of some arthritic
changes in [plaintiff’s] knee.” The same impression was noted in
entries dated September 24 and November 15, 2002. On the latter
date, which was subsequent to the filing of plaintiff’s October 2002
application for disability pension benefits, plaintiff reported periodic
pain with “sitting and walking.” In his examination of November 15,
2002, Pavlatos noted “no effusion, good flexibility, and good
strength” in the knee. Nonetheless, Pavlatos concluded that plaintiff
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needed to limit his activity to “office type work” and determined he
could not work in the field as a police officer.
The record also shows that plaintiff was evaluated on September
4, 2002, by Dr. Mark Levin. It appears that Dr. Levin conducted an
extensive and thorough examination of plaintiff and a meticulous and
comprehensive review of his records.
Levin listed plaintiff’s main complaint as “right knee pain that goes
up to a 7/10.” Plaintiff stated he experienced pain over the lateral
aspect of his knee while walking and got some locking and occasional
buckling. Plaintiff said he had been told by Dr. Pavlatos that he had
“bone on bone contact” in the knee. He informed Levin he could “sit
for 20 minutes, stand for 25-30 minutes, walk for 25 minutes and
[had] no problem with driving.” He could walk stairs, but experienced
discomfort when doing so.
Levin noted that plaintiff had a previous history of right knee pain
dating back to 1997. Although plaintiff did relatively well following
his 1997 knee surgery, he again developed knee pain in December of
2001. Levin’s notes indicate that plaintiff initially saw a Dr.
Sommerville for his knee and was diagnosed with arthritis. He
subsequently saw Dr. Pavlatos, who prescribed a regimen of physical
therapy. Levin’s entry states that plaintiff was off work, due to his
knee problem, from December of 2001 to February of 2002; however,
he did work “full-duty” from February of 2002 until April 20, 2002.
Levin’s examination of plaintiff revealed trace effusion of the right
knee and full extension and flexion. There was no tenderness of the
knee, though plaintiff complained of pain over the hamstrings. Levin’s
review of plaintiff’s standing X-rays revealed “arthritic changes both
over the medial and lateral compartments.” Although there was still
“joint space maintained,” Levin noted “signs of degenerative findings.”
Plaintiff’s April 2002 sitting X-rays also showed arthritic changes of
the right knee with “some minimal spurring of the patella” and
“spurring of the medial femoral condyle and medial tibial plateau.”
Plaintiff’s April 2002 MRI was consistent with contemporaneous X-
rays insofar as it disclosed arthritic changes of the knee. The MRI also
showed a medial meniscal tear. Operative photos from plaintiff’s 2002
knee surgery confirmed that plaintiff had a tear of the posterior horn
of the medial meniscus as well as a tear of the lateral meniscus. Levin
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also reviewed plaintiff’s postoperative progress reports and physical
therapy records.
Based upon plaintiff’s history, physical exam, radiographic studies
and medical records, Levin diagnosed plaintiff with “tri-compartment
arthritis of the right knee which would be chronic and longstanding”
and noted that condition “would pre-date an injury from April 20,
2002.” Levin observed: “The patient was symptomatic per his own
report prior to that but had been working as a patrol officer from
February to April.”
Levin concluded that plaintiff appeared to be at “maximum
medical improvement” but did “not appear to have the abilities to
return back to work as a patrol officer because of the underlying
arthritis of his right knee.” Levin’s report later reiterated that the
“need for work restrictions is coming from his underlying knee
arthritis,” but immediately followed that observation with this
statement: “It would appear that there was an aggravation from the
episode of April 2002 which is now preventing this patient from
returning back to work full-duty.” Levin stated that plaintiff would be
capable of working on a permanent basis at a sedentary position.
Plaintiff was subsequently advised that the North Chicago police
department had no permanent sedentary position for a police officer,
and, on October 8, 2002, he filed an application with the Board for a
disability pension. At that time, plaintiff did not specify whether he
was seeking a line-of-duty (see 40 ILCS 5/3–114.1 (West 2002)) or
a nonduty (40 ILCS 5/3–114.2 (West 2002)) disability pension.
However, he subsequently indicated that he was seeking a “duty-
related disability pension” only. Pursuant to section 3–115 of the Code
(40 ILCS 5/3–115 (West 2002)), three physicians were selected by the
Board to examine plaintiff: Dr. John Dwyer, Dr. Christopher Reger,
and Dr. James W. Milgram.
Drs. Dwyer and Reger found plaintiff to be disabled from a
“work-related” injury and each signed a “physician’s certificate,”
checking the “disabled” option on the certificate. We note there was
also a “not disabled” option on the certificates utilized in this case as
a means to address both alternatives on the issue of disability. Though
both doctors believed plaintiff was disabled from a work-related
injury, they acknowledged, in their accompanying reports, that he had
preexisting problems with his right knee.
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Dr. Dwyer’s accompanying report evinced an extensive
examination of plaintiff with very specific findings regarding range of
motion, appearance and function. Dwyer noted “visible swelling about
the right knee.” He stated that plaintiff demonstrated “post
arthroscopy knee with residual impairment there, chronic synovitis
with instability.” According to Dwyer’s report, plaintiff said he had
surgery on his right knee in 1997 “and returned to work on full duty
with no problem until the incident of 4-20-02. He denies any other
serious illness or injury.” Dwyer notes that plaintiff had reported:
“[B]y the time he prepares a meal for himself standing the
whole knee is sore. Prolonged walking also increases pain. He
stated the pain radiates up into the right thigh. If he sits too
long the knee locks. The knee swells and he ices it.”
Dr. Dwyer concluded that plaintiff could not perform the duties of a
street officer and noted that his “history certainly delineates a work
related condition.” Significantly, Dwyer noted that plaintiff had
surgery on his knee prior to the injury at issue in these proceedings,
and “a successful return to his normal occupation as a police officer
was seen.”
Dr. Reger also conducted an extensive examination and, in his
words, a “meticulous evaluation of records, and review of [plaintiff’s]
MRI and imaging studies.” Reger observed there were “mild to
moderate osteoarthritic changes about the right knee,” which were
most likely “present prior to this injury.” Reger also noted both
plaintiff’s prior injury in 1997 and his subsequent surgery. Reger’s
examination of plaintiff revealed some “mild swelling” of the right
knee and mild medial joint tenderness upon palpation. Plaintiff
complained of some discomfort in his knee as it was manipulated
during the examination. In the report accompanying his certificate,
Reger concluded that plaintiff was permanently disabled and stated his
belief that the cause of plaintiff’s disability was a work-related injury.
He observed that plaintiff “did have a timely work up after his injury,
and it did show a new meniscal tear.” Given plaintiff’s previously
repaired meniscal tear, Reger believed plaintiff was at a “higher risk
for reinjury, which did occur in this case.”
In his report, Dr. Milgram acknowledged the medical history
plaintiff reported to him, but his recitation makes clear that he did not
commit to that history as verified. He noted that plaintiff “has had no
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repeat MRIs or x-rays since the surgery. He brought with him no
tests.” In his examination of plaintiff, Milgram observed full range of
motion, no swelling, no fluid accumulation, no marked tenderness, and
good alignment and extension. Milgram took X-rays of plaintiff’s
knees and determined that “bilateral three compartment disease” was
present in both knees. Milgram concluded that plaintiff had
degenerative bilateral arthritis in both of his knees and that condition
preexisted any duty-related incident. Milgram felt, if plaintiff were “so
motivated[,] he could return to work as a police officer at the present
time without restriction.” Consistent with the skeptical tone that
pervades Milgram’s report, he states:
“I have reviewed the medical records and in no area that I
have reviewed is there a history given by the patient to his
treating physician that his knee popped when he fell down the
embankment. Therefore, this is a new history that the patient
is giving to me. The records do not show that type of an
injury. He was diagnosed by his own doctor as having bilateral
arthritis of both knees and the doctor felt that he might have
tears of his cartilage. Indeed he did have tears of the cartilage,
but as described in the operative note, they appear to be
degenerative type of tears and chronic. They certainly do not
appear to be like a new tear that just occurred and I think
there is a significant likelihood that the tears treated by Dr.
Pavlatos are pre-existing disease and not traumatic tears
caused by a new injury. I think the patient does not have also
a degree of arthritis which is disabling from work as a police
officer ***.”
Thus, Dr. Milgram did not find plaintiff to be disabled, much less
disabled from a work-related injury.
Following plaintiff’s hearing, the Board denied plaintiff a
line-of-duty disability pension on three independent bases, concluding
that plaintiff “did not incur a disability from the performance of an act
of duty,” his “condition does not render it necessary for his suspension
or retirement from police service,” and “three doctors selected by the
pension board did not certify the Applicant as disabled,” pursuant to
section 3–115 of the Code (40 ILCS 5/3–115 (West 2002)). In its
analysis, the Board found Dr. Milgram more credible than the other
physicians and assigned greater weight to his opinion. The Board also
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relied on Dr. Levin’s report and plaintiff’s extensive prior medical
treatment and injuries.
As noted, the circuit court confirmed the Board’s decision upon
administrative review, and the plaintiff appealed. Although the
appellate court initially found it unnecessary to address the evidentiary
sufficiency of the Board’s decision, given the court’s determination
that a disability pension was properly denied because three Board-
selected physicians had not certified plaintiff disabled, upon remand
we directed the appellate court to address the evidentiary question. In
doing so, the appellate court framed the issue, and summarized the
evidence, as follows:
“It is undisputed that plaintiff has preexisting arthritis of
his right knee. The dispute focuses on whether the April 20,
2002, accident caused a new tear to plaintiff’s knee or whether
the tear preexisted the accident. Four of the five physicians
who examined plaintiff concluded that plaintiff was disabled as
of the date of the accident. Dr. Pavlatos believed that the
accident caused a new tear. Dr. Levin concurred in this
conclusion. Dr. Milgram on the other hand believed that any
tears preexisted the accident, and the Board found Dr.
Milgram more credible, assigning more weight to his opinion.
Thus, this case turns on whether the record contains any
evidence to support Dr. Milgram’s finding that plaintiff did not
suffer a new tear to his knee when he fell down the
embankment.” 359 Ill. App. 3d at 229.
Plaintiff argued below that, given the evidence, Dr. Milgram’s finding
was baseless and unreliable and that the Board therefore erred in
assigning so much weight to Dr. Milgram’s opinion. The appellate
court agreed with that assessment. See 359 Ill. App. 3d at 229.
The appellate court noted that Milgram had concluded the
accident did not cause a new tear to plaintiff’s knee, in part, because
plaintiff did not report to his doctor that his knee had popped when he
tumbled down the embankment. However, as the appellate court
observed, the record indicates that plaintiff did in fact report to Dr.
Pavlatos that he felt his knee pop at the time of the accident. 359 Ill.
App. 3d at 230. The court concluded that Milgram’s misstatement of
the evidence showed that Milgram “either selectively disregarded,
failed to recall, or never reviewed portions of plaintiff’s medical
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records” and he “disregarded evidence that supports the finding that
plaintiff suffered a new tear.” 359 Ill. App. 3d at 230. The court also
found it “particularly troubling” that, “although he stated that he
reviewed plaintiff’s ‘medical records,’ nowhere in his report did Dr.
Milgram indicate that he specifically examined the MRI taken by Dr.
Pavlatos following plaintiff’s accident.” 359 Ill. App. 3d at 230.
Moreover, the court observed:
“Dr. Milgram based his finding that plaintiff is not disabled on
his beliefs that plaintiff ‘does not have a degree of arthritis
which is disabling from work as a police officer’ and that he
lacks motivation. This ‘lack of motivation analysis’ is vague
and has no scientific basis in fact because the report does not
consider, as the other examining physicians did, plaintiff’s
current symptoms regarding the use of his knee, i.e., that his
knee locks occasionally, that he experiences some pain in his
knee when he climbs up and down stairs, and that his knee
swells and feels tender when he does any strenuous activities.
Dr. Milgram’s opinion also fails to account for how these
symptoms might affect plaintiff’s work as a full-duty police
officer.” 359 Ill. App. 3d at 230.
The court determined that Dr. Milgram “was not credible, because his
conclusions were inconsistent with the facts available to him,” and
concluded that “the Board erred in assigning greater weight to Dr.
Milgram’s opinion, because he failed to consider or to base his opinion
on relevant, material evidence that was key under the circumstances
of this case.” 359 Ill. App. 3d at 230. Thus, the appellate court held
that the Board’s determination on disability was against the manifest
weight of the evidence. 359 Ill. App. 3d at 231.
The court then went on to address the issue of statutory
construction, ultimately determining, as it had in its prior disposition,
that section 3–115 of the Code requires that a pension board deny
disability benefits unless all three examining physicians selected by the
board certify that the applicant is disabled. 359 Ill. App. 3d at 238.
The court concluded with a quote from Justice Cardozo: “ ‘We do not
pause to consider whether a statute differently conceived and framed
would yield results more consonant with fairness and reason. We take
this statute as we find it.’ ” 359 Ill. App. 3d at 238, quoting F.
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.
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L. Rev. 527, 534 (1947), quoting Anderson v. Wilson, 289 U.S. 20,
27, 77 L. Ed. 1004, 1010, 53 S. Ct. 417, 420.
We begin our analysis with the issue of evidentiary sufficiency, and
the standards of review applicable thereto. In administrative cases, we
review the decision of the administrative agency, not the
determination of the circuit court. Marconi v. Chicago Heights Police
Pension Board, 225 Ill. 2d 497, 531 (2006). Section 3–148 of the
Code (40 ILCS 5/3–148 (West 2002)) provides that judicial review of
the decision of the Board is governed by the Administrative Review
Law (735 ILCS 5/3–101 et seq. (West 2002)), pursuant to which, our
review extends to all questions of fact and law presented by the entire
record. 735 ILCS 5/3–110 (West 2002); Marconi, 225 Ill. 2d at 532;
International Union of Operating Engineers, Local 148 v. Illinois
Department of Employment Security, 215 Ill. 2d 37, 61 (2005).
Rulings on questions of fact will be reversed only if they are
against the manifest weight of the evidence. Marconi, 225 Ill. 2d at
532; Comprehensive Community Solutions, Inc. v. Rockford School
District No. 205, 216 Ill. 2d 455, 471-72 (2005). “An administrative
agency decision is against the manifest weight of the evidence only if
the opposite conclusion is clearly evident.” Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). In
contrast, we review questions of law de novo (Branson v. Department
of Revenue, 168 Ill. 2d 247, 254 (1995)), and a mixed question of law
and fact is reviewed under the clearly erroneous standard (Marconi,
225 Ill. 2d at 532). In Marconi, we applied the manifest weight
standard to the “the question of whether the evidence of record
supports the Board’s denial of plaintiff’s application for a disability
pension,” noting that is a question of fact. Marconi, 225 Ill. 2d at 534,
543. That standard applies here as well. Under any standard of review,
a plaintiff in an administrative proceeding bears the burden of proof,
and relief will be denied if he or she fails to sustain that burden. See
Marconi, 225 Ill. 2d at 532-33, citing Miller v. Hill, 337 Ill. App. 3d
210, 216 (2003).
As appellate panels have observed, a disability pension may be
based upon the line-of-duty aggravation of a preexisting physical
condition. See Alm v. Lincolnshire Police Pension Board, 352 Ill.
App. 3d 595, 598 (2004); Barber v. Board of Trustees of Village of
South Barrington Police Pension Fund, 256 Ill. App. 3d 814, 818
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(1993) (“There is no requirement that the duty-related incident be the
originating or primary cause of the injury, although a sufficient nexus
between the injury and the performance of the duty must exist”).
With these precepts in mind, we turn again to the evidence
adduced in this case, and the Board’s decision, based on that evidence.
Other than the opinion of Dr. Milgram, there is no medical evidence
whatsoever to support a finding that plaintiff was not disabled for full
duty as a police officer, and there was abundant medical evidence that
he was disabled. As previously noted, Drs. Pavlatos, Levin, Dwyer
and Reger all found plaintiff to be disabled such that he was unable to
perform in a full-duty capacity as a police officer. Drs. Pavlatos and
Levin specifically found that the April 2002 injury aggravated
plaintiff’s preexisting condition, rendering him disabled. The reports
of these doctors evince examinations more thorough than that
conducted by Dr. Milgram, and analyses that were more complete and
better substantiated. We note that we have before us the same records
and reports examined by the Board; the doctors did not testify, and
thus factors such as the demeanor of testifying witnesses does not
figure into an assessment of credibility. Having thoroughly examined
those records, we find it, frankly, incomprehensible that the Board
would credit the opinion of Dr. Milgram and reject the opinions of the
other doctors.
As the appellate court noted, Dr. Milgram’s “misstatement of the
evidence” shows that he either “selectively disregarded, failed to
recall, or never reviewed portions of plaintiff’s medical records.” See
359 Ill. App. 3d at 230. Milgram claimed that he had reviewed
plaintiff’s medical records and in no area that he had reviewed was
there a history given to plaintiff’s treating physician that his knee had
popped when he fell down the embankment. Milgram found that
omission significant, and he observed, “this is a new history that the
patient is giving to me.” The suggestion–which is consistent with the
skeptical tone that pervades Milgram’s report–is that the plaintiff was
making things up as he went along. Milgram’s misconception may
well have led to his otherwise unsupported conclusion that, if plaintiff
were so motivated, “he could return to work as a police officer ***
without restriction.” In fact, the record indicates that plaintiff did
make a report of a knee pop to his treating physician, Dr. Pavlatos, on
April 25, 2002, five days after his injury.
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More evidence of Milgram’s cursory review of the record can be
found in his blanket statement that the tears of plaintiff’s cartilage, “as
described in the operative note, *** appear to be degenerative type of
tears and chronic.” While Dr. Pavlatos did describe one tear of the
meniscus as a “degenerative flap tear,” he did not so characterize the
other. Even if he had, that description would not necessarily impose
any chronology with respect to the date of the tear, as Milgram would
suggest. Furthermore, Milgram himself never addressed Pavlatos’
preoperative assessment of plaintiff’s MRI–an MRI that Milgram
apparently never reviewed–wherein Pavlatos stated his belief that
plaintiff had at least one new tear of his meniscus. In short, Milgram
provides no factual basis for his conclusion that the tears treated by
Dr. Pavlatos were “pre-existing disease and not traumatic tears caused
by a new injury.”
Finally, as the appellate court notes, Milgram’s report fails to
consider, as did the reports of the other examining physicians,
plaintiff’s current symptoms, i.e., “that his knee locks occasionally,
that he experiences some pain in his knee when he climbs up and
down stairs, and that his knee swells and feels tender when he does
any strenuous activity.” 359 Ill. App. 3d at 230.
We agree with the appellate court’s conclusion that Dr. Milgram
“was not credible, because his conclusions were inconsistent with the
facts available to him” and that “the Board erred in assigning greater
weight to Dr. Milgram’s opinion, because he failed to consider or to
base his opinion on relevant, material evidence that was key under the
circumstances of this case.” 359 Ill. App. 3d at 230. We feel
compelled at this juncture to remind Board members that, under the
Pension Code, a pension board owes a fiduciary duty toward its
participants and beneficiaries. See Board of Trustees of the
Barrington Police Pension Fund v. Village of Barrington Ethics
Board, 287 Ill. App. 3d 614, 616 (1997). Even under the manifest
weight standard applicable in this instance, the deference we afford the
administrative agency’s decision is not boundless. We hold, as did the
appellate court, that the Board’s decision was against the manifest
weight of the evidence.
We now turn to the issue of section 3–115’s proper construction.
Section 3–115 of the Code provides in pertinent part:
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“A disability pension shall not be paid unless there is filed
with the board certificates of the police officer’s disability,
subscribed and sworn to by the police officer if not under legal
disability, or by a representative if the officer is under legal
disability, and by the police surgeon (if there be one) and 3
practicing physicians selected by the board. The board may
require other evidence of disability.” 40 ILCS 5/3–115 (West
2002).
Two lines of appellate authority have developed with opposing
interpretations of section 3–115. One line, represented by Rizzo v.
Board of Trustees of the Village of Evergreen Park Police Pension
Fund, 338 Ill. App. 3d 490 (2003), among other cases, has interpreted
section 3–115 of the Code to prohibit a board from granting a
disability pension unless three practicing physicians, selected by the
board, have filed certificates stating that the applicant is disabled due
to a duty-related injury. An opposing view is represented by Coyne v.
Milan Police Pension Board, 347 Ill. App. 3d 713 (2004), in which
the appellate court held that the statute only requires three medical
certificates addressing an applicant’s disability status. Under the
Coyne construction, even if one doctor does not certify that an
applicant is disabled, the applicant can still obtain a pension if the
board finds the applicant disabled. The majority in Coyne rejected the
pension board’s construction of section 3–115–which was consistent
with Rizzo–reasoning as follows:
“We believe the Board’s interpretation of section 3–115
yields a result that is both absurd and unconstitutional.
Although the Board adjudicated several issues other than the
certificate requirement, such action was superfluous if the
Board’s interpretation of that requirement is carried to its
logical conclusion. As a threshold matter in all cases, the three
physicians specified in section 3–115 would each have to
certify that the applicant was disabled for police work. The
opinion of a lone minority dissenter like Doctor Harris (five
contrary opinions notwithstanding) would ipso facto defeat a
pension claim, thus rendering section 3–115 a virtual summary
dismissal provision. A pension board would have no use for an
evidentiary hearing in such cases because, regardless of the
weight of the claimant’s evidence, and regardless of any
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credibility issues pertaining to the lone dissenting physician,
the outcome of the case would be predetermined by the mere
existence of a disagreement between witnesses. We cannot
believe the legislature would establish the adjudicatory process
outlined in the Pension Code expecting that the process would
be so easily precluded.” Coyne, 347 Ill. App. 3d at 729.
The dissenting justice in Coyne registered his belief that the phrase
“certificates of the police officer’s disability” is unambiguous and must
be given its plain and ordinary meaning. He criticized the majority’s
construction of the statute, calling it “tortured” and “Clintonesque.”
Coyne, 347 Ill. App. 3d at 730-31 (Schmidt, J., concurring in part and
dissenting in part). Justice Schmidt suggested that section 3–115
provides a way around the potential inequity of his interpretation of
the statute insofar as it provides “the board may require other
evidence of disability” (40 ILCS 5/3–115 (West 1996)) in addition to
the reports and/or certificates of the three physicians initially selected
by the board. Coyne, 347 Ill. App. 3d at 731 (Schmidt, J., concurring
in part and dissenting in part). He concluded, “there is nothing in the
statutory language to stop a claimant from petitioning the Board to
appoint a fourth physician to examine him in an effort to secure the
necessary three certificates of disability.” Coyne, 347 Ill. App. 3d at
732 (Schmidt, J., concurring in part and dissenting in part).
The cardinal rule of statutory construction, to which all other
canons and rules are subordinate, is to ascertain and give effect to the
intent of the legislature. Adams v. Northern Illinois Gas Co., 211 Ill.
2d 32, 64 (2004), citing McNamee v. Federated Equipment & Supply
Co., 181 Ill. 2d 415, 423 (1998). Although a court should first
consider the language of the statute, a court must presume that the
legislature, in enacting the statute, did not intend absurdity or
injustice. Adams, 211 Ill. 2d at 64, citing McNamee, 181 Ill. 2d at
423-24. “ ‘A statute or ordinance must receive a sensible construction,
even though such construction qualifies the universality of its
language.’ ” Adams, 211 Ill. 2d at 64, quoting In re Illinois Bell
Switching Station Litigation, 161 Ill. 2d 233, 246 (1994). Where the
intent of the legislature is otherwise clear, the judiciary possesses the
authority to read language into a statute which has been omitted
through legislative oversight. DeLuna v. Burciaga, 223 Ill. 2d 49, 60
(2006). When a literal interpretation of a statutory term would lead to
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consequences that the legislature could not have contemplated and
surely did not intend, this court will give the statutory language a
reasonable interpretation. In re Marriage of Eltrevoog, 92 Ill. 2d 66,
70-71 (1982), citing, inter alia, 2A A. Sutherland, Statutory
Construction §45.12 (4th ed. 1973). A statute should be interpreted
so as to promote its essential purposes and to avoid, if possible, a
construction that would raise doubts as to its validity. Morton Grove
Park District v. American National Bank & Trust Co., 78 Ill. 2d 353,
363 (1980). Statutes are presumed constitutional, and courts have a
duty to construe enactments by the General Assembly so as to uphold
their validity if there is any reasonable way to do so. People v. Jones,
223 Ill. 2d 569, 595-96 (2006). Consistent with this obligation, we
will not consider a constitutional question if the case can be decided
on other grounds. If a court can resolve a case on nonconstitutional
grounds, it should do so. People v. Lee, 214 Ill. 2d 476, 482 (2005).
The construction of a statute is a question of law, which we
review de novo. In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000).
The language of a statute is generally considered to be the most
reliable indication of the legislature’s objectives in enacting that
particular law. Southern Illinoisan v. Illinois Department of Public
Health, 218 Ill. 2d 390, 415 (2006). “However, if the language of a
statute is ambiguous, [courts] may look to tools of interpretation ***
to ascertain the meaning of a provision.” People v. Taylor, 221 Ill. 2d
157, 163 (2006); see Balmoral Racing Club, Inc. v. Topinka, 334 Ill.
App. 3d 454, 460 (2002). “A statute is ambiguous when it is capable
of being understood by reasonably well-informed persons in two or
more different senses.” People v. Jameson, 162 Ill. 2d 282, 288
(1994), citing 2A N. Singer, Sutherland on Statutory Construction
§45.02 (5th ed. 1992).
The justices of the Coyne court found the statute to be capable of
being understood in two different senses: either requiring physician’s
certificates actually finding the applicant disabled, or requiring
certificates merely addressing the issue of disability. The Coyne
majority settled upon the latter interpretation as the one intended by
the legislature. We find support for such an interpretation in the
documentation employed by the Board in this case. We note that the
“Physician’s Certificate” utilized by the North Chicago Police Pension
Board in fact provides the reporting physician with two optional
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findings: “disabled” and “not disabled.” Thus, the certificates used in
this matter were certificates addressing the issue of disability. In any
event, we find the statutory language of section 3–115, pertaining to
physician certification, sufficiently ambiguous to warrant resort to
other aids or tools of interpretation.
It is appropriate statutory construction to consider similar and
related enactments, though not strictly in pari materia. DeLuna, 223
Ill. 2d at 59-60; People v. Masterson, 207 Ill. 2d 305, 329 (2003);
Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d
428, 468 (1989). We must presume that several statutes relating to the
same subject are governed by one spirit and a single policy, and that
the legislature intended the several statutes to be consistent and
harmonious. DeLuna, 223 Ill. 2d at 60; Masterson, 207 Ill. 2d at 329;
People ex rel. Killeen v. Kankakee School District No. 11, 48 Ill. 2d
419, 422 (1971). In this respect, we note that the Illinois Pension
Code contains provisions pertaining to firefighters that are very similar
to those applicable to police officers.
Section 4–110 of the Illinois Pension Code provides in pertinent
part:
“If 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, pursuant to Section 4–112, 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
***.” 40 ILCS 5/4–110 (West 2002).
Section 4–112 of the Code provides in part:
“A disability pension shall not be paid until disability has
been established by the board by examinations of the
firefighter at pension fund expense by 3 physicians selected by
the board and such other evidence as the board deems
necessary.” (Emphasis added.) 40 ILCS 5/4–112 (West 2002).
At least two appellate panels have applied section 4–112 of the
Code in such a manner that the board, rather than any individual
examining physician, is the ultimate arbiter of disability and
consequent eligibility for pension benefits. See Bowlin v.
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Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App.
3d 205, 210-12 (2006); Village of Oak Park v. Village of Oak Park
Firefighters Pension Board, 362 Ill. App. 3d 357, 369 (2005).
Although the appellate court in Graves v. Pontiac Firefighters’
Pension Board, 281 Ill. App. 3d 508, 510 (1996), in the course of
addressing other issues, loosely paraphrased section 4–112 as stating
“A disability pension shall not be paid unless three physicians selected
by the Board have determined by examinations that the firefighter is
disabled,” that reference rearranges the language of section 4–112 so
as to change its meaning. In any event, the proper interpretation of
section 4–112 was not at issue in Graves. See Graves, 281 Ill. App.
3d at 510-16.
Bowlin’s and Oak Park’s application of the language of section
4–112 of the Code clearly–and consistently with principles of due
process–places the decision as to a firefighter’s disability within the
purview of the pension board. Although the language of section 3–115
is less clear, we believe there is no real question as to the legislature’s
intent. In DeLuna, in the course of construing fraudulent-concealment
provisions pertaining to statutes of repose, we found it
“inconceivable” that the legislature would have intended to treat
attorneys differently than physicians. DeLuna, 223 Ill. 2d at 73. If
anything, it is even more “inconceivable” that the legislature would
have intended to treat these classes of emergency responders
(firefighters and police officers) differently for purposes of
ascertaining disability, making the pension board the decisionmaker
for purposes of section 4–112, but effectively placing any one of three
board-selected physicians in that position for purposes of section
3–115. That cannot be what the legislature intended.
The legislature has provided that the board of trustees of a police
pension fund is the entity statutorily empowered to verify an
applicant’s disability and right to receive benefits. 40 ILCS
5/3–114.1(d) (West 2002). The board is ultimately responsible for
administering the fund and designating beneficiaries. 40 ILCS 5/3–128
(West 2002). To read the statute as requiring the concurrence of all
three board-selected physicians would mean that one doctor, out of
the three selected by the board, could determine that the applicant is
not entitled to benefits, and, even though that opinion conflicts with
the well-reasoned opinion of every other doctor, the board would be
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powerless to override that opinion and authorize the payment of
benefits to a disabled applicant. In fact, any hearing conducted by the
board subsequent to the filing of that doctor’s certificate would be a
meaningless exercise, as no disability could be authorized, regardless
of the strength of the applicant’s evidence of disability. Again, that
result cannot be what the legislature intended.
We could, of course, read the statute as the dissenting justice in
Coyne did, to allow the board to appoint a fourth physician–and
perhaps more–to validate, for statutory purposes, a result the board
deems appropriate based on medical evidence already before it. Such
an interpretation seems to us as unreasonable as it is wasteful. Having
found the applicant disabled pursuant to the credible assessments of
two of three board-appointed physicians, the board would then be
required to expend additional sums to obtain another opinion of
disability solely to corroborate a determination the board has already
made. We reject any such requirement as a means of avoiding what
most jurists seem to agree would be a statutory construction capable
of manifest injustice. Rather, we interpret the statute as did the
majority in Coyne, as requiring three certificates or reports addressing
the issue of disability. The decision regarding disability is for the
board, not any individual physician.
For the foregoing reasons, the judgments of the circuit and
appellate courts are reversed, the decision of the Board is set aside,
and the cause is remanded to the City of North Chicago Police
Pension Board with directions that it grant the plaintiff a line-of-duty
pension in accordance with section 3–114.1 of the Illinois Pension
Code (40 ILCS 5/3–114.1 (West 2002)).
Reversed and remanded
with directions.
JUSTICE KILBRIDE took no part in the consideration or
decision of this case.
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