NO. 4-96-0632
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
VALERI DECASTRIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
THE STATE EMPLOYEES RETIREMENT ) No. 95MR325
SYSTEM OF ILLINOIS, and MICHAEL )
MORY, as Executive Secretary, ) Honorable
Defendants-Appellees. ) Donald M. Cadagin,
) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In March 1994, plaintiff, Valeri DeCastris, an employee
of the State Department of Public Health (DPH), filed a claim for
nonoccupational disability benefits (40 ILCS 5/14-124 (West
1994)) with defendant State Employees Retirement System of
Illinois (SERS). In October 1995, the SERS Board of Trustees
(Board) concluded that plaintiff had not shown that she was
suffering from a disabling condition and denied her claim. In
November 1995, plaintiff sought administrative review of the
Board's decision, and in July 1996, the circuit court affirmed.
Plaintiff appeals, arguing that the circuit court's
order affirming the Board's decision was against the manifest
weight of the evidence. We agree and reverse and remand with
directions.
I. BACKGROUND
The underlying facts in this case are undisputed. DPH
employed plaintiff as a sanitarian II (toxicologist) from March
1992 through February 1994. Her supervisor described her duties
as involving the "review and interpretation of the environmental
and health data with the purpose of discerning whether an expo-
sure to chemical or physical agents may result in harm to human
or nonhuman life." Plaintiff handled telephone inquiries regard-
ing exposure to chemicals or physical agents, and she worked out
of the office (field work) approximately two or three times per
month. With the exception of the field work, plaintiff primarily
had a "sitting job." The field work varied from a few minutes to
collect a sample to several days to collect multiple samples.
The field work occasionally required plaintiff to carry sampling
equipment, coolers, or bottles of water. Her duties also re-
quired her to use a computer and write and interpret scientific
data. Her supervisor testified that a person who was incapaci-
tated in some "intangible nonphysical way" would have difficulty
performing plaintiff's job.
In the spring of 1994, plaintiff submitted medical
evidence to SERS in support of her claim for nonoccupational
disability benefits. The evidence consisted primarily of a
report from Dr. Mark Stern, a physician and rheumatologist who
had been treating her "for many years" for fibromyalgia, which he
described, in part, as "a condition which produces significant
soft tissue pain as well as a sleep disorder and irritable
bowel."
Dr. Stern certified plaintiff was "temporarily, totally
disabled" from both her own occupation and from any occupation.
However, he stated she could return to work in 30 days. Dr.
Stern classified plaintiff's physical impairment as a "slight
limitation of functional activity; capable of light work." He
stated she had full, normal range of motion in all joints and
normal muscle strength, but also noted that fibromyalgia patients
are expected to have normal laboratory test results. He also
recommended "a disability leave to begin immediately," explaining
that fibromyalgia "is a condition that leads to chronic pain or
persistent discomfort."
On July 22, 1994, the SERS claims division sent a
memorandum to Dr. Edward G. Ference, identified in the memorandum
as "SERS Chief Medical Consultant," informing him of plaintiff's
claim and asking him to review the medical information on file
"and make a recommendation as to the existence of a disability."
Four days later, Dr. Ference responded in a memorandum
that he recommended denial of plaintiff's claim. Despite not
having examined--or even seen--plaintiff himself, Dr. Ference
disagreed with Dr. Stern's diagnosis of fibromyalgia. In its
entirety, Dr. Ference's memorandum reads as follows:
"This employee claims disability bene-
fits because of chronic fatigue syndrome and
fibromyalgia. She has a sedentary work job
description. She is being treated with
Zoloft.
Actually, she has an anxiety syndrome.
All her laboratory findings are normal. She
is obese weighing 191-1/2 pounds. (Dr. Stern
calls this fibromyalgia.)
The activities of daily living are much
more stressful and require more strength than
the job description of this employee. I do
not believe she is disabled from her regular
job." (Emphasis added.)
Two days later, a SERS claims examiner sent plaintiff a
letter informing her that her file "ha[d] been reviewed by the
[SERS'] medical director" and that SERS was temporarily denying
her claim (pending review by the SERS Executive Committee (here-
after the Committee)) because "it is the [SERS'] opinion that a
disabling condition has not been established."
In August 1994, the same claims examiner wrote to
plaintiff that the Committee had met "and moved to deny [her]
benefits." The examiner further informed plaintiff that "[t]his
constitutes the initial disposition" of her claim by the Commit-
tee, but she could appeal this decision and ask for a personal
appearance before the Committee.
In September 1994, plaintiff hired an attorney, who
pursued the appeal on her behalf. He obtained further reports
from Dr. Stern, who provided additional descriptions of plain-
tiff's condition, including the following:
"The patient's ability to function in a
work environment depends on [her] level of
pain and fatigue[,] which is not easily and
objectively measured. ***
Due to pain, fatigue and global sense of
disease, some patients find working impossi-
ble and cannot be able to maintain gainful
employment. *** [Assessments of such pa-
tients] cannot be gauged the same way as the
patient who has had loss of limb, vision or
stroke and should be taken in consideration
just as well."
Plaintiff also had Dr. Scott Morton, another rheumatol-
ogist, examine her, and he concurred in Dr. Stern's diagnosis.
He wrote in his report, however, that although plaintiff was
"temporarily, totally disabled" from her own occupation due to
the high level of stress and the physical tasks she was required
to do, she was not disabled from all occupations. He thought her
disability should continue for an additional 60 days. Dr. Morton
described as "moderately severe" plaintiff's degree of restric-
tion of daily activities, including her ability to "attend
meetings (church, lodge, etc.), work around the house, socialize
with friends and neighbors." He defined "moderately severe
impairment" as one which "seriously affects the ability to
function." Regarding her ability to do her job, he concluded
that she had a "moderate" impairment in her ability to under-
stand, remember, and carry out detailed or complex instructions
but had no impairment in her ability to understand, remember, and
carry out simple job instructions.
Plaintiff's counsel indicated to SERS that plaintiff
wished to appear before the Committee and would be providing
further medical material. A handwritten note in the SERS file on
plaintiff, dated October 12, 1994, states that plaintiff's
attorney "wants to cross-examine Dr. Ference." However, Dr.
Ference never appeared in person at any Committee hearing con-
cerning plaintiff and was never cross-examined. The file con-
tains no other reference to the matter.
Plaintiff appeared with her counsel at the Committee's
December 1994 meeting and testified as follows: (1) several
physicians, including Dr. Stern and Dr. Morton, have treated her;
(2) her job required her to review complex data from the private
and public sector regarding hazardous waste in water and on land,
write technical reports, and interact with the public and various
agencies; (3) she was also required to leave the office approxi-
mately twice per week to do field work, consisting of collecting
samples and reviewing files; (4) when she did field work, the
heaviest object she had to carry was 20 pounds, and in the
office, she had to carry several boxes of files; and (5) she was
required to deal with incoming calls from people who believed
they had been exposed to toxic chemicals, and these calls created
stress for her.
Plaintiff had been in her current position for approxi-
mately two years. Previously, she worked at DPH as a microbiolo-
gist. She testified she was very ill at that time and had the
Epstein-Barr virus. She was fatigued and could not stand at the
lab desk. She experienced problems with increased pain migrating
to other areas of her body. She also suffered from irritable
bowel and bladder syndrome.
At the Committee's December 1994 meeting, plaintiff
indicated she would submit additional medical information,
including a report of an examination of plaintiff by Dr. Muhammad
Yunus, a rheumatologist who is an expert on fibromyalgia and the
author of numerous medical journal articles on that subject. The
Committee deferred the case pending receipt of the additional
medical information and evaluation.
Subsequently, plaintiff submitted extensive additional
medical records and reports of her examination by Dr. Yunus,
other physicians, and medical specialists (physical therapists,
et cetera), as well as articles from medical journals describing
the diagnosis and treatment of fibromyalgia. Dr. Yunus found
that plaintiff exhibited prominent fibromyalgia symptoms. In
sum, these documents comprise over 100 pages of material.
In response, Robert Hicks, supervisor of the SERS
disability section, wrote to Dr. Ference and asked him to review
plaintiff's case again "to determine if there is documentation of
disability." In March 1995, Dr. Ference responded (again without
examining or seeing plaintiff), noting that an "MRI of [plai-
ntiff's] neck, done December 5, 1994, shows some narrowing of her
disc space and some arthritic changes. There is some bulging of
her disc. There is not cord or nerve root compression."
Dr. Ference's (initially handwritten) report concluded
as follows:
"A letter, dated August 26, 1994, from
Mark Stein [sic], M.D., a rhematologist
[sic], was in file. It was non-specific
about [plaintiff's] impairment with
'fibromyalgia.' There are also two reprints
in file, from Dr. Yunus dated February, 1990,
and Donna Howley, et al., dated 1988. This
last article is not by an M.D.
Again, based on the evidence in file and
her job description of sedentary work, I do
not believe she is disabled from her regular
job. Activities of daily living involve more
than sedentary work."
However, a careful reading of these articles (which are in the
record before us) reveals that Howley was a professor of nursing
and her coauthor not only was a medical doctor, but specifically
distinguished in the field of fibromyalgia.
In April 1995, the deposition of plaintiff's DPH
supervisor was taken, and plaintiff asked SERS to consider all
the evidence before it. Hicks sent a memo to Dr. Ference again
asking him to review plaintiff's file. Dr. Ference responded
shortly thereafter--yet again without examining or seeing plain-
tiff--and in a six-line report (one line of which was devoted to
pointing out how he had twice before examined this same file), he
concluded that "[t]here is nothing added to this file from my
last review that has changed my opinion that this employee is not
disabled from her regular job."
In late June 1995, plaintiff submitted an additional,
updated report from Dr. Stern to SERS. Hicks, in turn, sent the
new material to Dr. Ference, asking him "to review and comment."
In response, Dr. Ference submitted his fourth--and last--report
in this case, which in its entirety reads as follows:
"I have reviewed this file before (three
times).
Again, there is nothing new added to the
file that would change my opinion from the
three prior reviews. She can perform her
regular duties."
As before, Dr. Ference submitted this report without examining or
seeing plaintiff.
In July 1995, the Committee voted to recommend that the
Board deny plaintiff's claim for disability benefits. In October
1995, the Board followed that recommendation, denied plaintiff's
claim, and issued its "final decision" on the matter.
In November 1995, plaintiff filed a complaint in
circuit court seeking administrative review of the Board's
decision, and in July 1996, the circuit court affirmed the
Board's decision.
II. ANALYSIS
A. Jurisdiction
Defendants first argue that this court should dismiss
the case because the circuit court lacked authority to review the
Board's decision. They note plaintiff's complaint for adminis-
trative review named as defendants only the "State Employees
Retirement System of Illinois" and "Michael Mory, as Executive
Secretary." Defendants maintain that the Board was the final
decision maker in the administrative process, and because the
Board made the final and binding agency decision in this case, it
was a necessary party on administrative review. We disagree.
Section 3-107(a) of the Administrative Review Law
(Review Law) provides, in pertinent part, as follows:
"[I]n any action to review any final decision
of an administrative agency, the administra-
tive agency and all persons, other than the
plaintiff, who were parties of record to the
proceedings before the administrative agency
shall be made defendants.
If, during the course of a review ac-
tion, the court determines that a party of
record to the administrative proceedings was
not made a defendant as required by the pre-
ceding paragraph, and only if that party was
not named by the administrative agency in its
final order as a party of record, then the
court shall grant the plaintiff 21 days from
the date of the determination in which to
name and serve the unnamed party as a defen-
dant. The court shall permit the newly
served defendant to participate in the pro-
ceedings to the extent the interests of jus-
tice may require." 735 ILCS 5/3-107(a) (West
Supp. 1995) (as amended eff. December 15,
1995).
In Lockett v. Chicago Police Board, 133 Ill. 2d 349,
354, 549 N.E.2d 1266, 1268 (1990), the supreme court said that
the joinder requirement of section 3-107 of the Review Law is
"mandatory." In Mudd v. Department of Children & Family Servic-
es, 281 Ill. App. 3d 90, 666 N.E.2d 360 (1996), this court
applied the holding in Lockett to determine whether the director
of Central Management Services was a necessary party under
section 3-107(a) of the Review Law. The defendants in Mudd
argued that the director was a necessary party because the final
order of the Illinois Civil Service Commission stated the order
was "'certified to [him]'" for enforcement, and also stated he
had approved the charges for dismissal. Mudd, 281 Ill. App. 3d
at 92, 666 N.E.2d at 362. In Mudd, this court noted that Lockett
did not say joinder was a jurisdictional requirement. Further,
in McGaughy v. Illinois Human Rights Comm'n, 165 Ill. 2d 1, 12,
649 N.E.2d 404, 410 (1995), the supreme court explained that
although the joinder requirement was mandatory, it was not
jurisdictional.
Finally, in Mudd, as here, the question of lack of
joinder was not raised before the circuit court. In Mudd, this
court deemed the issue waived because it did not involve juris-
diction. Mudd, 281 Ill. App. 3d at 92-93, 666 N.E.2d at 362.
Accordingly, although plaintiff failed to name the Board as a
defendant within the meaning of section 3-107 of the Review Law,
we conclude--based on Mudd--that defendants have waived the issue
of lack of joinder.
B. Standard of Review
Judicial review under the Review Law extends to all
questions of law and fact presented by the entire record. The
Review Law mandates that this court deem the findings and conclu-
sions of an administrative agency on questions of fact prima
facie true and correct and not disturb them unless they are
against the manifest weight of the evidence. 735 ILCS 5/3-110
(West 1994). In Abrahamson v. Illinois Department of Profession-
al Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992),
the supreme court noted that the court's function under adminis-
trative review is to ascertain whether the findings and decisions
of the agency are against the manifest weight of the evidence,
and they are against the manifest weight of the evidence only if
the opposite conclusion is clearly evident. The mere fact that
an opposite conclusion is reasonable or that the reviewing court
might have ruled differently will not justify reversal of the
administrative findings. However, in Cherington v. Selcke, 247
Ill. App. 3d 768, 776, 617 N.E.2d 514, 519 (1993), this court
noted that this rule does not relieve a reviewing court of its
duty to examine the evidence in an impartial manner and to set
aside an order which the evidence does not support.
C. The Administrative Decision
Plaintiff argues here that the Board's decision must be
set aside because it lacks evidentiary support. We agree.
Plaintiff presented substantial evidence from her
treating and examining physicians, most notably Drs. Stern and
Morton, who repeatedly certified plaintiff was disabled due to
fibromyalgia. In addition, Dr. Yunus, an expert in the field of
fibromyalgia, evaluated plaintiff twice and concurred that she
exhibited "prominent symptoms of fibromyalgia."
The only contrary "evidence" (using the term liberally)
appeared in Dr. Ference's reports. However, he never saw plain-
tiff--much less examined her--and dismissed the diagnosis of her
fibromyalgia without providing any basis for his opinion. Nor
does the record contain any explanation--or justification--for
his disregard of the other physicians' diagnoses. Moreover,
while Drs. Stern, Morton, and Yunus are rheumatologists, the
record contains no evidence (indeed, no hint) of Dr. Ference's
background or specialty.
Plaintiff presented ample evidence to establish a prima
facie case of disability. By presenting only Dr. Ference's
reports, SERS failed to rebut plaintiff's evidence, particularly
in view of the manifest deficiencies in Dr. Ference's reports.
This case does not involve a disagreement among experts
as to the extent of a plaintiff's injury or illness, such as is
frequently the case when experts differ about, say, how quickly a
plaintiff's damaged vertebrae might heal and how much permanent
disability a plaintiff might suffer as a result of the injury.
Instead, this record reveals a dispute among the medical witness-
es as to whether a diagnosis of fibromyalgia bears any medical
legitimacy at all. This distinction is important because it
removes this case from the routine-medical-dispute situation
where this court's deference to the fact finder should be very
high. In the present case, this court must first evaluate the
sufficiency of the evidence in this record to support Dr.
Ference's rejection of fibromyalgia as a legitimate medical
condition. We find none, and at oral argument, defendants could
not point to any, either.
Plaintiff presented ample evidence from three physi-
cians who are specialists in rheumatology that she has a disease,
fibromyalgia, and her doctors have certified that her disease is
disabling. The only contrary "evidence" SERS presented was that
Dr. Ference doubts the medical legitimacy of fibromyalgia, yet
neither SERS nor Dr. Ference provided any basis for his opinion--
or his expertise. Accordingly, we hold that the Board's reliance
on Dr. Ference's opinion was against the manifest weight of the
evidence.
III. CONCLUSION
For the reasons stated, we reverse the circuit court's
judgment and remand to that court with directions to remand to
the agency with directions to award benefits to plaintiff.
Reversed and remanded with directions.
McCULLOUGH and COOK, JJ., concur.