SECOND DIVISION
FILED: June 24, 2008
No. 1-07-2623
MARIA KOUZOUKAS. ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. )
)
THE RETIREMENT BOARD OF THE POLICEMEN'S )
ANNUITY AND BENEFIT FUND OF THE CITY OF )
CHICAGO, ) HONORABLE
) PHILIP L. BRONSTEIN,
Defendant-Appellant. ) JUDGE PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The Retirement Board of the Policemen's Annuity and Benefit
Fund of the City of Chicago (Board) appeals from orders of the
circuit court which reversed a decision of the Board denying the
plaintiff, Maria Kouzoukas, duty disability benefits under section
5-154 of the Illinois Pension Code (Code) (40 ILCS 5/5-154 (West
2004)) and awarded the plaintiff pre-judgment interest. For the
reasons which follow, we affirm.
The following facts relevant to our disposition of this appeal
are taken from the evidence presented at the hearing held by the
Board on the plaintiff's application for duty disability benefits.
The plaintiff was appointed a member of the Chicago Police
Department (Department) on December 4, 1995. On July 25, 2004, she
was assigned to the 16th police district. While working on that
No. 1-07-2623
date, the plaintiff attempted to assist an intoxicated man who was
bleeding and lying on a sidewalk. According to an affidavit filed
by the plaintiff, the intoxicated individual resisted her efforts
and, in the altercation which ensued, she injured her back. The
plaintiff sought treatment at the Resurrection Medical Center
(Resurrection) emergency room. The records of that visit state
that she complained of pain in her lower back and left foot. The
plaintiff was diagnosed as suffering from a contusion on her left
foot, a lower-back strain, and pain in her chest wall. On
discharge from the emergency room, the plaintiff was given
medication for pain; restricted to limited bending, stooping,
twisting and forceful pushing or pulling for the following 72
hours; and advised to seek follow-up care with her own physician.
On July 26, 2003, the plaintiff went on medical leave from the
Department. On the following day, she sought treatment from Dr.
Edward Bleier at Mercyworks Occupational Medical Center. The
doctor's records of that visit state that the plaintiff complained
of pain in her lower back, but denied any residual discomfort
involving her left foot. Dr. Bleier diagnosed an acute lumbar
strain, prescribed pain medication and a home exercise program for
the plaintiff, and authorized her to remain off work.
On August 10, 2004, the plaintiff was examined by Dr. Michael
S. Lewis at the Illinois Bone & Joint Institute. In a report of
that examination, Dr. Lewis noted a mild paravertebral muscle spasm
in the dorsal and lumbar areas of the plaintiff's spine. The
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No. 1-07-2623
doctor also noted that the plaintiff had full motion of both upper
and lower extremities and that her neurovascular status was intact.
Dr. Lewis diagnosed the plaintiff as having suffered an acute
dorsal and lumbar myofasciitis.
The plaintiff continued under the care of Dr. Lewis and
continued to complain of pain in her low-back area. When she was
seen by the doctor on August 23, 2004, and September 7, 2004, he
noted a persistence of the plaintiff's low-back symptoms. Dr.
Lewis prescribed medication for the plaintiff and recommended that
she remain off work.
Dr. Lewis' report of the claimant's examination on September
14, 2004, states that she continued to complain of low-back pain.
Nevertheless, Dr. Lewis authorized her to return to work in a
light-duty capacity on September 17, 2004.
When the plaintiff was seen by Dr. Lewis on October 12, 2004,
she continued to complain of daily back pain but reported that she
had been able to perform light-duty activities at work. Dr. Lewis
recommended that she continue light-duty work, prescribed a course
of physical therapy, and ordered an MRI scan of the plaintiff's
lumbosacral spine.
The claimant began physical therapy at Athletico on October
15, 2004. However, the Department's records reflect that, on
October 23, 2004, the plaintiff again went on medical leave as the
result of the back injury she received while on duty.
The MRI scan of the plaintiff's lumbar spine that Dr. Lewis
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No. 1-07-2623
recommended was performed at Resurrection on October 27, 2004. The
radiologist's report of that scan noted mild disc protrusions at
L4-L5 and L5-S1 with bilateral neural stenosis, most severe at L4-
L5.
When the plaintiff saw Dr. Lewis on October 28, 2004, she
complained of low-back pain, radiating into her right lower
extremity, and reported that her symptoms intensified with sitting.
Dr. Lewis examined the plaintiff and diagnosed lumbar radiculitis.
He prescribed an epidural steroid injection, and recommended that
the plaintiff remain off work.
Dr. Lewis next saw the plaintiff on November 8, 2004. In his
report of that visit, Dr. Lewis wrote that, although the plaintiff
continued to have low-back pain, her radicular pain was much
improved. According to the report, Dr. Lewis examined the
plaintiff and reviewed her MRI scan. He concluded that the
findings were compatible with a lumbar radiculitis and a persistent
lumbar myofasciitis. He advised the claimant to continue with
physical therapy and authorized her to return to light-duty work on
November 12, 2004, and regular duty work on November 22, 2004.
It appears that the plaintiff returned to duty on November 12,
2004, but again went on medical leave on November 16, 2004.
The plaintiff underwent physical therapy at Athletico. In a
letter dated November 30, 2004, Derick Sy, a physical therapist at
Athletico, reported to Dr. Lewis that the plaintiff attended five
sessions of physical therapy from October 15, 2004, through
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No. 1-07-2623
November 1, 2004, but that she had missed two sessions and
cancelled another. According to the report, the plaintiff was
discharged from therapy when she failed to return after her
November 1, 2004, visit and failed to return telephone calls
requesting that she reschedule appointments. The report states
that, at the time of her last visit, the plaintiff continued to
complain of back pain and mid-back muscle spasms and that she was
unable to run or "work out."
The plaintiff returned to light-duty work on January 17, 2005.
She worked in that capacity until March 29, 2005, when she again
went on medical leave.
On April 5, 2005, the plaintiff had an MRI scan of her
cervical spine on orders of Dr. Peter Petrovas, a chiropractor.
The radiologist's report states that the scan of the cervical spine
and the spinal cord was normal.
On May 2, 2005, the plaintiff was examined by Dr. Gary Mages
at the Advocate Good Shepard Hospital. Dr. Mages recommended that
the plaintiff undergo an L4-L5 transforaminal epidural injection.
When the plaintiff was examined by Dr. Lewis on May 19, 2005,
she reported that, in March, she had a recurrence of severe low-
back pain, radiating into her right leg, and that she was unable to
work. On examination, Dr. Lewis found a "severe paravertebral
muscle spasm in the plaintiff’s lumbar spine with minimal forward
flexion." In his report of that visit, Dr. Lewis recorded an
impression of "acute lumbar radiculitis secondary to a recurrence
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No. 1-07-2623
of a work related back injury which originally occurred in June of
2004." As of that date, Dr. Lewis found that the plaintiff was
unable to work, and he recommended that she have an epidural
steroid injection.
Dr. Henry Kurzydlowski administered the recommended epidural
injection on June 7, 2005. However, when the plaintiff saw Dr.
Lewis on June 13, 2005, she reported that the injection had
afforded no relief from her symptoms. According to Dr. Lewis’
notes, the plaintiff reported a headache and increased low-back
pain post-injection. Dr. Lewis again found the plaintiff unable to
work, and, based upon her lack of response to conservative
treatment, the doctor recommended that she see a spine surgeon to
be evaluated for possible surgical intervention.
On July 19, 2005, the plaintiff was examined by Dr. David
Spencer. In a report of that visit addressed to the Department’s
medical section, Dr. Spencer wrote that his working diagnosis was
chronic-back pain and right-sided sciatica. He recommended that
the plaintiff continue in a light-duty status and that she undergo
a new MRI scan of her lumbar spine.
The plaintiff had an MRI scan of her lumbar spine on August 4,
2005, at the Parkside Magnetic Resonance Center. The radiologist’s
report of the scan states that no abnormalities were detected.
The plaintiff returned to see Dr. Spencer on August 8, 2005.
In his report of that visit, addressed to the Department’s medical
section, Dr. Spencer wrote that the plaintiff "does not really have
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No. 1-07-2623
a back problem or an injury." Dr. Spencer also wrote that, based
upon the pristine appearance of the plaintiff’s spine on the MRI,
he was of the belief that her pain is not coming from any
identifiable injury in her lumbar spine. The report states that he
discussed the implications with the plaintiff and recommended that
she consult with her gynecologist and general internist in order to
identify the source of her pain. Dr. Spencer released the
plaintiff to return to work with a temporary 20-pound bending and
lifting restriction.
On September 2, 2005, the plaintiff was examined by Dr. Wesley
Yapor, a neurosurgeon. At the time of that visit, Dr. Yapor
reviewed the MRI scan of the claimant's spine that was taken in
October of 2004. He did not, however, review the MRI scan of the
plaintiff’s spine that was taken in August of 2005. Dr. Yapor
ordered an EMG study of the plaintiff’s lower extremities and
recommended that she remain off work until he could further
evaluate her condition with the results of the studies.
The plaintiff had an EMG/NCV study and next saw Dr. Yapor on
September 30, 2005. According to Dr. Yapor’s report of that visit,
the EMG study "revealed no neurological finding suggestive of
radiculopathy or plexopathy." Nevertheless, Dr. Yapor recommended
that the plaintiff remain off work until she could have an x-ray of
her S1 joint in order to rule out any pathology in that area.
In a report dated October 18, 2005, Dr. Yapor wrote that the
plaintiff had a CT scan of her sacroiliac joint. Although the scan
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No. 1-07-2623
showed a slight narrowing of the joint space, Dr. Yapor saw no
specific pathology. When he examined the plaintiff on that date,
Dr. Yapor detected "significant point tenderness right over the
right sacroiliac joint." Dr. Yapor recommended that the plaintiff
remain off work until she was able to run and suggested that her
best option was to enroll in a pain management program to evaluate
her for possible steroid and local anesthetic injections to the
sacroiliac joint and for other types of therapy or medications.
The plaintiff was evaluated at the Comprehensive Pain
Management Group on November 17, 2005. The report of the
evaluation states that, after an extensive physical examination,
the plaintiff was diagnosed as suffering from low-back pain with
right radicular-leg pain. Lyrica was prescribed for the
plaintiff’s pain, and she was asked to obtain her MRI scans and EMG
study.
When the plaintiff was examined by Dr. Yapor on November 22,
2005, she continued to complain of pain. He recommended that she
remain off work until she could be re-evaluated by Comprehensive
Pain Management Group.
On December 13, 2005, Dr. Yapor authored a report addressed to
the Department’s medical section in which he wrote that the
plaintiff’s low-back symptoms had not changed in pattern or in the
degree of pain that she experienced and that her level of
disability has continued with discomfort upon prolonged sitting,
standing, and walking. He also reported that the plaintiff is
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No. 1-07-2623
unable to run. According to Dr, Yapor’s report, the plaintiff
"should be considered to have a chronic low back syndrome which,
although is causing no neurological deficit, is causing her to have
sufficient disability for her not to be able to perform her job
duties as a police officer." Dr. Yapor opined that the plaintiff
is permanently disabled.
On December 15, 2005, the plaintiff filed an application with
the Board for an award of duty disability benefits pursuant to the
provisions of the Code.
On December 19, 2005, Dr. Yapor discharged the plaintiff from
his care after having reviewed a "normal MRI" of her cervical
spine. His report to the Department’s medical section states that,
although the plaintiff needed no further follow-up care from a
neurological standpoint, she would need further follow-up at the
Comprehensive Pain Management Group.
On December 20, 2005, Dr. Howard Konowitz of the Comprehensive
Pain Management Group administered an S1 joint injection to the
plaintiff. In a report to Dr. Yapor dated January 20, 2006, Dr.
Konowitz wrote that the plaintiff experienced significant
improvement with the injection, but that she still suffered pain.
On December 29, 2005, the plaintiff was examined by the
Board’s physician, Dr. S. David Demorest. In a report of that
examination dated January 21, 2006, Dr. Demorest noted that the
plaintiff has "exaggerated lumbar lordosis" and that he detected a
"marked spasm of the perispinal muscles on the left from
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No. 1-07-2623
approximately T7 to the lower lumbar." Dr. Demorest also noted
that the plaintiff had decreased forward flexion and lateral
bending, although her reflex examination was normal. According to
Dr. Demorest’s report, the plaintiff has myofascial pain syndrome
and should continue with pain management.
The plaintiff was again examined by Dr. Konowitz at the
Comprehensive Pain Management Group offices on March 23, 2006. In
a report of that examination, Dr. Konowitz wrote that the
plaintiff’s S1 joint pain is provoked with prolonged sitting and
standing. Dr. Konowitz stated that, due to the plaintiff’s
"significant subjective complaints" of pain over her S1 joint, he
was unable to authorize her return to duty.
The hearing on the plaintiff’s application for benefits
commenced before the Board on March 30, 2006. At that hearing, the
first witness to testify was Dr. Yapor. Dr. Yapor was questioned
about his treatment of the plaintiff and his review of her medical
records and MRI scans. He stated that he was of the belief that
the pain that the plaintiff experiences is generated by her
sacoriliac joint. Although the plaintiff experiences low-back
pain, Dr. Yapor testified that the source of her pain is the S1
joint. Dr. Yapor stated that the plaintiff’s condition is
consistent with the history of the work-related injury that she
reported to him. He also opined that the plaintiff is unable to
work as a police officer. According to Dr. Yapor, the plaintiff
tends to have "flare-ups" with prolonged sitting, standing, or
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No. 1-07-2623
walking. He defined prolonged as 30 to 45 minutes. Dr. Yapor
testified that the plaintiff could neither sit in a police car nor
at a desk for any prolonged period of time. Dr. Yapor also stated
that one of his concerns is that the weight of a gun belt
exacerbates the plaintiff’s pain. He was also concerned about the
plaintiff working or driving a car while taking medication. On
cross-examination, Dr. Yapor admitted that he saw no objective
findings on any of the plaintiff’s MRI scans or x-rays and that her
EMG test was normal. Dr. Yapor testified that he was aware that
the plaintiff had suffered prior injuries to her neck and low back,
but is of a belief that those injuries had resolved and that her
current condition is the result of the 2004 on-duty incident.
The Board’s physician, Dr. Demorest, testified to the scope of
his December 29, 2005, examination of the plaintiff and his
findings on that date. According to Dr. Demorest, the muscles in
the plaintiff's spinal column were in spasm, and she exhibited
decreased forward flexion and lateral bending. Dr. Demorest
diagnosed the plaintiff as suffering from myofascial pain syndrome,
meaning a disfunction of the muscles, ligaments and tendons in her
lower back. He testified that he found no evidence that the
plaintiff was malingering or that she was exaggerating her pain.
When questioned as to his opinion on the issue of the plaintiff's
ability to work as a police officer, Dr. Demorest stated that he
would not recommend that the plaintiff work in the field as a "full
street police officer." He did believe that, if the Department
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No. 1-07-2623
could accommodate her, the plaintiff could work in certain light-
duty positions. He found that a 45-minute standing-sitting
limitation would be common for an individual such as the plaintiff
who suffers from low-back pain. Dr. Demorest also stated that, if
the plaintiff returned to work, he would restrict her to duties
where she could frequently change positions.
The plaintiff testified that she suffers from constant pain on
the right side of her lower back, and shooting pains, going down
her leg. She stated that she takes a variety of medications,
including Neurontin, Valium, Vicodin and Ultran and uses Lidocaine
patches 24 hours a day. In addition, she attends physical therapy
sessions three times per week. The plaintiff admitted that she had
injured her neck and back in a traffic accident while working on
April 29, 2002, but stated that she fully recovered from that
incident. The plaintiff also admitted that, since the incident
which gave rise to her current condition, she has taken two trips
by plane; one to Baltimore, Maryland, and one to Mexico. According
to the plaintiff, she is able to drive, but only short distances.
The hearing was continued until April 26, 2006, when
Lieutenant Thomas Schaedel, the commanding officer of the
Department's medical section was called as a witness. Schaedel
testified that, if an officer can qualify at the gun range and can
ambulate independently, there are positions within the Department
where an accommodation can be made for an officer returning to
duty. Accommodation can also be made for an officer who must
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No. 1-07-2623
change positions and who has a standing-sitting restriction.
Schaedel testified that he had read Dr. Yapor's reports and found
nothing that would prevent the plaintiff from returning to work on
a limited-duty status. Schaedel admitted that the Department had
never offered the plaintiff a limited-duty position, but stated
that the plaintiff has never furnished the Department with a
release from a doctor authorizing her to return to light-duty work.
The Board issued a written decision on May 26, 2006, denying
the plaintiff's application for duty-disability benefits under the
Code. The Board found that the plaintiff is not disabled,
specifically stating that her "complaints of pain are subjective
and do not prevent her full duty return to the CPD [Department]."
The Board concluded that Dr. Yapor was not a credible witness,
finding his testimony was "evasive and inconsistent." Seemingly as
an aside, the Board also concluded that the plaintiff failed to
establish a causal connection between her on-duty incident on July
25, 2004, and her complaints.
The plaintiff filed an action in the circuit court pursuant to
Article III of the Code of Civil Procedure (Administrative Review
Law) (735 ILCS 5/3-101 et seq. (West 2006)), seeking a judicial
review of the Board's decision and an award of pre-judgment
interest pursuant to section 2 of the Interest Act (815 ILCS 205/2
(West 2006)). The circuit court reversed the Board's decision and
the Board appealed. However, this court dismissed the Board's
appeal for want of jurisdiction, finding that the circuit court had
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No. 1-07-2623
not as yet ruled on the issue of pre-judgment interest and that the
provisions of Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) had
not been complied with. Kouzoukas v. Retirement Board of the
Policemen's Annuity and Benefit Fund of the City of Chicago, No. 1-
06-3320 (June 26, 2007). On remand, the circuit court awarded the
plaintiff pre-judgment interest, and, thereafter, the Board filed
the instant appeal.
Initially, the Board argues that the findings of fact which
support its denial of the plaintiff's application for duty-
disability benefits are not against the manifest weight of the
evidence, and, as a consequence, the circuit court erred in
reversing its decision in the matter. We disagree.
On judicial review, it is the court's function to ascertain
whether the findings of fact and decision of the Board are against
the manifest weight of the evidence. See Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88, 606
N.E.2d 111 (1992). The decision of an administrative agency, such
as the Board, is against the manifest weight of the evidence if an
opposite conclusion is clearly evident. Abrahamson, 153 Ill. 2d at
88. Whether a reviewing court might reach the same conclusion as
the Board is not the test of whether its determination on a
question of fact is supported by the manifest weight of the
evidence. Rather, the appropriate test is whether there is
sufficient evidence in the record to support the Board's
determination. Abrahamson, 153 Ill. 2d at 88. However, when an
14
No. 1-07-2623
administrative decision is against the manifest weight of the
evidence, it is the court's duty to reverse it. Zien v.
Retirement Board of the Firemen's Annuity & Benefit Fund of
Chicago, 236 Ill. App. 3d 499, 507, 603 N.E.2d 777 (1992).
In concluding that the plaintiff is not disabled within the
meaning of section 5-115 of the Code (40 ILCS 5/5-115 (West 2006)),
the Board found that her subjective complaints of pain "do not
prevent her full duty return to the CPD." We have set forth in
excruciating detail the facts relating to the plaintiff's medical
treatment and the opinions of each of the physicians that have
examined her to demonstrate that the Board's finding in this regard
is against the manifest weight of the evidence.
Although none of the objective medical tests or scans
performed on the plaintiff identified the source of her pain, each
of the physicians that examined the plaintiff, with the exception
of Dr. Spencer, rendered a diagnosis as to the source of her pain.
Dr. Lewis, one of the plaintiff's treating physicians, and Dr.
Demorest, the Board's doctor, each diagnosed the plaintiff as
suffering from lumbar myofasciitis. Dr. Lewis wrote that the
condition was "acute." Dr. Lewis also diagnosed lumbar
radiculitis. When the plaintiff was examined by Drs. Lewis and
Demorest, spasms of the muscles in her low back were noted. Dr.
Demorest reported that the plaintiff had decreased forward flexion
and lateral bending. Dr. Yapor, whom the Board found less than
credible, testified that, although the plaintiff experiences low-
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No. 1-07-2623
back pain, the source of the pain is her sacroiliac (S1) joint. It
was only Dr. Spencer that found that the plaintiff "does not really
have a back problem or an injury." His opinion in this regard, and
upon which the Board appears to have rested its decision, is
contained in an eight-line letter that the doctor wrote to the
Department's medical section. According to the letter, Dr. Spencer
based his opinion on the "pristine appearance" of the plaintiff's
spine on her MRI scan. Although Dr. Demorest, the Board's own
doctor, acknowledged that all of the plaintiff's tests were normal,
he, nevertheless, believed that she is in pain. He explained that
lumbar myofasciitis or myofascial pain syndrome is a disfunction of
the muscles, ligaments and tendons of the low back. Further, Dr.
Demorest found no evidence that the plaintiff was malingering or
exaggerating her symptoms.
Contrary to the Board's finding, none of the physicians that
treated or examined the plaintiff opined that she could return to
"a full duty position" with the Department. As of June 13, 2005,
Dr. Lewis found that the plaintiff was unable to work. Dr. Yapor
stated that the plaintiff could not work as a police officer. Dr.
Konowitz wrote in his report of March 23, 2006, that he was unable
to authorize the plaintiff to return to duty. Dr. Demorest, the
Board's own physician, testified on March 30, 2006, that he would
not recommend that the plaintiff work in the field as a "full
street police officer." Even Dr. Spencer, who released the
plaintiff to return to work on August 8, 2005, imposed a temporary
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No. 1-07-2623
20-pound bending and lifting restriction. Dr. Spencer's eight-line
letter of August 8, 2005, notwithstanding, the Board's finding that
the plaintiff can return to "a full duty position" with the
Department is against the manifest weight of the evidence as an
opposite conclusion is clearly apparent.
The Board also found that the plaintiff was not a credible
witness in addressing her claim of pain. According to the Board,
the plaintiff's failure to keep physical therapy appointments and
her plane trips, "all raise questions as to her injury and the
extent of her complaints of disabling pain."
The record establishes that the plaintiff has been under
continuous medical care since her injury on July 25, 2004. She was
treated at Resurrection for a low-back strain, two of her
subsequent treating physicians diagnosed either an acute back
strain or lumbar myofasciitis, two of her treating physicians
identified the source of her pain as the S1 joint, four of her
treating physicians prescribed pain medication to relieve the
plaintiff's symptoms, and four physicians recommended or
administered epidural injections. The Board's own physician, Dr.
Demorest diagnosed myofascial pain syndrome and found no evidence
that the plaintiff was malingering or exaggerating her pain. Not
even Dr. Spencer opined that the plaintiff is not in pain. Yet,
based upon the fact that the plaintiff missed several physical
therapy appointments and took two plane trips and its reliance upon
Dr. Spencer's letter stating that the plaintiff is not injured, the
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No. 1-07-2623
Board found that the plaintiff's claims of pain were less than
credible.
Great deference is accorded to the findings of an
administrative agency on matters of witness credibility and the
weight to be given to evidence. Lapp v. Village of Winnetka, 359
Ill. App. 3d 152, 167, 833 N.E.2d 983 (2005). However, in this
case, the overwhelming weight of the medical evidence and the
opinions of the Board's own physician lead us to conclude that any
finding that the plaintiff does not suffer pain to an extent which
prevents her from returning to a "full duty position" with the
Department is against the manifest weight of the evidence.
Section 5-115 of the Code defines a disability as a "condition
of physical or mental incapacity to perform any assigned duty or
duties in the police service." 40 ILCS 5/5-115 (West 2004). An
individual may be incapable of performing in a "full duty position"
with the Department and yet not be disabled within the meaning of
the Code if a position is made available to her which can be
performed by a person with her physical disability. See Peterson
v. Board of Trustees of the Firemen's Pension Fund of the City of
Des Plaines, 54 Ill. 2d 260, 263-65, 296 N.E.2d 721 (1973); Thurow
v. Police Pension Board of the Village of Fox Lake, 180 Ill. App.
3d 683, 690-91, 536 N.E.2d 155 (1989). Dr. Demorest testified that
the plaintiff is capable to working in a light-duty capacity
allowing her to change positions frequently. Schaedel testified
that an accommodation can be made within the Department for an
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No. 1-07-2623
officer who must change positions frequently and who has a
standing-sitting restriction. However, Schaedel admitted that the
Department has never offered the plaintiff a light-duty position
within her restrictions.
As noted earlier, the evidence before the Board established
that the plaintiff is physically incapable of performing in a "full
duty position" with the Department. We believe, therefore, that
she met her initial burden of proving that she is disabled within
the meaning of section 5-115 the Code. Terrano v. Retirement Board
of the Policemen's Annuity and Benefit Fund of the City of Chicago,
315 Ill. App. 3d 270, 276, 733 N.E.2d 905 (2000). In the absence
of any evidence that the plaintiff has been ordered to return to
duty and a light-duty position within her restriction has been
offered to her, the mere existence of such a position will not
support a finding that the plaintiff is not disabled. Terrano, 315
Ill. App. 3d at 276.
Finally, the Board found that the plaintiff failed to
establish any causal connection between her complaints of pain and
the on-duty incident of July 25, 2004. Its determination in this
regard appears to be based on a finding that the plaintiff does not
suffer from an injury or that, if she does, its source is
gynecological or gastrointestinal in origin. Based on our analysis
of the Board's findings as to the nature and extent of the
plaintiff's injury, we also find that its determination as to
causation is also against the manifest weight of the evidence.
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No. 1-07-2623
For the reasons stated, we affirm the judgment of the circuit
court which reversed the Board's decision to deny the plaintiff
duty-disability benefits under the provisions of section 5-154 of
the Code.
The Board also appeals from the circuit court's order awarding
the plaintiff pre-judgment interest. The Board's argues both that
the plaintiff waived any right to pre-judgment interest by failing
to make a claim for interest before the Board and that the Board is
not subject to the provisions of the Interest Act (815 ILCS 205/1
et seq. (West 2006)). We reject both arguments.
The powers of an administrative agency, such as the Board, are
strictly confined to those granted in its enabling statute. City
of Chicago v. Fair Employment Practices Comm'n, 65 Ill. 2d 108,
115, 357 N.E.2d 1154 (1976); Gilchrist v. Human Rights Comm'n, 312
Ill. App. 3d 597, 601, 728 N.E.2d 566 (2000). Pursuant to section
5-189 of the Code, the Board has the power "[t]o authorize the
payment of any annuity, pension, or benefit granted under this
Article or under any other Act relating to police pensions ***."
40 ILCS 5/5-189 (West 2006). However, we find nothing in section
5-189, or any other section of the Code, that grants the Board the
power to award interest pursuant to section 2 of the Interest Act
(815 ILCS 205/2 (West 2006)). For this reason, we reject the
argument that the plaintiff waived her right to pre-judgment
interest by failing to raise the issue before the Board. See
Poindexter v. State of Illinois, 372 Ill. App. 3d 1021, 1026, 869
20
No. 1-07-2623
N.E.2d 139 (2007) (finding that claims not raised before an
administrative agency were not waived where the claims were outside
the agency's purview), aff'd, No. 104853 (April 3, 2008).
Finally, the Board invites us to revisit the issue of whether
it is subject to the provisions of the Interest Act. In support of
the argument that it is not subject to the Interest Act, the Board
relies upon the Third District's opinion in Bassett v. Pekin Police
Pension Board, 362 Ill. App. 3d 235, 839 N.E.2d 130 (2005).
In Fenton v. Board of Trustees of the City of Murphysboro, 203
Ill. App. 3d 714, 723, 561 N.E.2d 105 (1990), the court determined
that a police pension as prescribed by statute is an instrument in
writing subject to the provisions of section 2 of the Interest Act.
The holding in Fenton, on this issue, has been followed in the
First District in the cases of Barry v. Retirement Board of the
Firemen's Annuity and Benefit Fund of Chicago, 357 Ill. App. 3d
749, 772, 828 N.E.2d 1238 (2005); Martino v. Police Pension Board
of the City of Des Plaines, 331 Ill. App. 3d 975, 983, 772 N.E.2d
289 (2002); and Barber v. Board of Trustees of the Village of South
Barrington, 256 Ill. App. 3d 814, 819, 630 N.E.2d 446 (1993). We
believe that the holding in Fenton and our earlier decision relying
upon its holding are well reasoned, and, as a consequence, we
decline to follow Bassett.
In summary, we affirm the judgment of the circuit court which
reversed the Board's decision to deny the plaintiff duty-disability
benefits and the circuit court's order awarding the plaintiff pre-
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No. 1-07-2623
judgment interest.
Affirmed.
SOUTH and KARNEZIS, JJ., concur.
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