FIRST DIVISION
Date Filed: November 30, 2009
No. 1-08-2722
LOUISE COLE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CH 33144
)
THE RETIREMENT BOARD OF THE )
POLICEMEN'S ANNUITY AND ) Honorable
BENEFIT FUND OF THE CITY OF ) Stuart E. Palmer,
CHICAGO, ) Judge Presiding.
)
Defendant-Appellant. )
PRESIDING JUSTICE HALL delivered the opinion of the court:
The plaintiff, Louise Cole, filed an application for
disability benefits with the defendant, the Retirement Board of
the Policemen's Annuity and Benefit Fund of the City of Chicago
(the Board). Following a hearing, the Board denied the plaintiff
duty disability benefits but awarded her ordinary benefits. The
plaintiff filed a complaint for administrative review. The
circuit court reversed the Board's decision and remanded the case
to the Board with instructions to award the plaintiff duty
disability benefits at 50% of the plaintiff's salary.
The Board appeals, raising the following issues: whether the
circuit court erred in reversing the decision of the Board; and
whether the circuit court exceeded its statutory authority when
it remanded the case to the Board, directing the Board to enter
the award of benefits determined by the court. The plaintiff
seeks an award of prejudgment interest.
On April 24, 2007, the plaintiff filed her application for
No. 1-08-2722
benefits. On September 24, 2007, the Board heard the plaintiff's
disability claim. The evidence presented at the hearing
consisted of the plaintiff's testimony and her medical records.
No medical testimony was presented. Because the sufficiency of
the evidence is at issue, a detailed review of the evidence is
required.
The plaintiff was appointed a member of the Chicago police
department on June 19, 1991. Prior to October 30, 1993, she had
incurred injuries on August 7, 1991, August 6, 1992, March 8,
1993, and September 3, 1993. The plaintiff had returned to full
duty after each incident.
On October 30, 1993, the plaintiff was involved in an act-
of-duty accident. The squad car in which she was a passenger was
struck by a vehicle traveling at a high rate of speed and
containing multiple armed offenders fleeing from a carjacking.
The plaintiff sustained injuries to her lower back, both knees,
and her neck and chest. Following the accident, the plaintiff
was examined by Dr. John D. Sonnenberg. According to his
November 3, 1993, report, the doctor diagnosed the plaintiff as
suffering from cervical myositis, lumbosacral strain, contusions
to her left hand and left knee, strain of her left Achilles
tendon but no rupture, and right ankle sprain. X-rays of
cervical and lumbosacral spine revealed spondylosis of the
cervical spine and L5-S1 degenerative disc disease with narrowing
at the lumbosacral junction. She was placed on medications and
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No. 1-08-2722
prescribed a course of physical therapy. By January 26, 1994,
she was on light duty and performing fairly well. The February
16, 1994, MRI of her lumbar spine showed a mild central bulge at
the L5-S1 level and facet spurring. The MRI of her cervical
spine showed spurs at C5-C6 and C6-C7. The February 22, 1994,
progress note stated that the plaintiff had myofascial pain
syndrome of her lower back and cervical spine which was
improving. The plaintiff returned to duty with the police
department.
On June 4, 1994, the plaintiff was involved in an
altercation with an individual who was HIV positive and had
tuberculosis. In December 1994, she fell while conducting a
missing persons investigation. She returned to full duty after
that incident. On May 31, 1995, she was involved in an off-duty
automobile accident. She experienced pain on her right side,
neck and shoulders. She was prescribed rest and was off work for
13 days. In September 1995, she sustained an insect bite and
missed six days of work.
On May 10, 1996, while checking vehicle stickers, the
plaintiff was injured when a vehicle backed into her, striking
her right knee and thigh. She was diagnosed with a contusion and
sprains of the right knee and thigh. The plaintiff was
prescribed physical therapy and limited duty. On May 24, 1996,
she was returned to full duty.
On January 16, 1997, the plaintiff fell while entering the
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No. 1-08-2722
police station. She was referred to Dr. Miller. Dr. Miller
noted that the plaintiff had a three-year history of injuring her
left foot and ankle and complained of chondromalacia to the knee.
The doctor diagnosed a bunion and hammertoe and dorsal ankle
strain with Achilles tendinitis. On March 13, 1997, the
plaintiff returned to full duty. On March 30, 1997, the
plaintiff was exiting a car when her right ankle "went out." She
was referred to Dr. Gates, who diagnosed repetitive right ankle
strain and right knee strain. The plaintiff was prescribed
physical therapy and medication. She was released to return to
work on May 27, 1997. On March 17, 1998, the plaintiff was
bitten while rescuing a dog from a burning building.
On September 21, 1998, the plaintiff fell while leaving the
police station. Her gun jammed into her hip, and she injured her
right elbow, knee, hip and ankle. On November 17, 1998, Dr.
Bockel examined her. The plaintiff complained of right knee pain
relating to the September 21, 1998, incident. An X-ray showed
mild osteophytes and mild patellofemoral degenerative joint
disease. The plaintiff was referred to Dr. Luke. An MRI of the
knee showed mild degenerative joint disease and mild mensical
degeneration, but there was no tear. The plaintiff returned to
full duty in December 1998.
On March 1, 1999, the plaintiff was examined by Dr. Luke.
The plaintiff complained of lateral hip pain radiating just below
the knee into the calf. Dr. Luke referred the plaintiff to Dr.
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No. 1-08-2722
Lambur. X-rays of her hip showed evidence of degenerative joint
disease. According to Dr. Lumbar, the plaintiff's hip condition
was not related to her September 21, 1998, injury. Subsequently,
the plaintiff was examined by Dr. Girzadas and Dr. Al-Aswad, both
of whom concluded that the plaintiff's hip condition was related
to her September 21, 1998, injury.
On June 17, 1999, Dr. Girzadas recommended physical therapy,
which the plaintiff under went from June to November 1999. On
October 18, 1999, Dr. Girzadas noted that the MRI and EMG of the
plaintiff's right hip were normal; physical therapy was
continued. On November 15, 1999, the plaintiff complained to Dr.
Girzadas of hip and leg pain. The plaintiff was ordered to
continue the present treatment plan and to follow up. A bone
scan was ordered on December 6, 1999.
On February 21, 2000, the plaintiff saw Dr. Girzadas
complaining of hip pain. The bone scan showed degenerative
changes to her ankle and feet.1 By June 5, 2000, Dr. Girzadas
noted that the plaintiff was doing well on light duty; she was to
follow up in six months.
On June 20, 2001, the plaintiff was crossing the street to
report to work when she slipped on an oily substance and fell,
injuring her right hip and wrist. X-rays of her hip showed
evidence suggesting prior trauma and no fracture to her right
wrist.
1
The record does not indicate which ankle.
5
No. 1-08-2722
On November 19, 2001, Dr. Everakes diagnosed the plaintiff
with fibromyalgia and degenerative joint disease. The plaintiff
was treated by Dr. Katz for her fibromyalgia. Due to the
fibromyalgia diagnoses, the plaintiff was off duty or on limited
duty between April 24, 2004, and February 25, 2005, when she
returned to limited duty.
On April 26, 2005, the plaintiff began seeing Dr. Harun
Durudogan. She was suffering from traumatic arthritis. The
doctor recommended joint supplements and nonsteriodal anti-
inflammatory medications. The plaintiff saw Dr. Durudogan on
November 17, 2005, complaining of hip pain. The November 17,
2005, X-rays indicated degenerative disc disease at L5-S1 and
minimal degenerative changes in her hip. Dr. Katz took the
plaintiff off duty between February 11 and February 25, 2006.
On April 14, 2006, while exiting the restroom at the police
station, the plaintiff slipped and fell, injuring both knees.
On May 19, 2006, the plaintiff related to Dr. Durudogan that she
had experienced lower back pain, bilateral knee pain and left
shoulder pain ever since the October 30, 1993, incident. She
complained of radicular symptoms, which had been intermittent,
but now were constant. She also complained of myositis and pain
related to her fibromyalgia. Dr. Durudogan examined the
plaintiff and diagnosed a herniated nucleus pulposus, L4-L5/L5-
S1, greater on the right than the left. The doctor recommended
sedentary light duty, physical therapy, medication and that the
6
No. 1-08-2722
plaintiff undergo an MRI of her lumbosacral spine. Dr. Durudogan
referred the plaintiff to Dr. Richard Lim.
In his May 25, 2006, report to the medical services
department, Dr. Lim noted that the plaintiff had been on
disability for right-sided hip and lower back pain. The
plaintiff related that in 2000, she had fallen, and her gun had
hit her lower back and her right side.2 She believed that her
1993 injury was related to her current disability. Three weeks
prior to this visit, she felt a "pop" in her back and a worsening
of her back pain. X-rays of her spine showed degenerative
changes in her lumbar spine and a degenerative lumbar scoliosis.
Noting that the previous MRI had shown a prior L5-S1 disc bulge,
Dr. Lim opined that the plaintiff should under go another MRI to
assess her current condition. Dr. Lim was not certain what
disability was associated with her lumbar spine and recommended
that the plaintiff undergo a functional capacity evaluation to
document what her functional capabilities were. On June 6, 2006,
Dr. Lim reviewed the MRI results. The test showed primarily L5-
S1 degenerative changes. There was no nerve root compression,
and no surgical intervention was deemed necessary. The plaintiff
was returned to work with restrictions.
On June 13, 2006, the plaintiff was evaluated by Dr.
Durudogan. The doctor noted that the plaintiff, "ever since the
2
The record does not reflect that the plaintiff was involved
in such an incident in 2000, but was on September 21, 1998.
7
No. 1-08-2722
motor vehicle accident in 2000 [sic],3 has had persistent pain
and problems related to this injury date." Dr. Durudogan noted
that the plaintiff continued to demonstrate lower back pain with
symptoms of fibromyalgia and had contracted a Bells palsy. The
doctor recommended medication, behavior modification and light-
duty work status on a permanent basis. The doctor also stated,
"I do feel her condition is casuly [sic] related to the original
injury on [the] duty date of her motor vehicle accident."
Between June 29 and August 8, 2006, the plaintiff underwent
physical therapy. On August 22, 2006, she returned to Dr.
Durudogan for a reevaluation of her lower back pain. The
plaintiff continued to have complaints related to her lumbar
spine and her right leg. She had no obvious radicular symptoms
or pain with the rolling of her hip. She was considerably weak
at "4/5 strength." None of her complaints went past her knee.
The doctor recommended continued conservative therapy, anti-
inflammatories, weight loss and physical therapy. Owing to the
physical restrictions imposed, the plaintiff would be on
permanent light duty at work.
On October 3, 2006, the plaintiff was examined by Dr.
Durudogan to recheck her right knee, right hip and lower back.
The plaintiff complained of right knee pain, pain in the lateral
aspect of her hip and lower back pain. The plaintiff believed
3
The record shows that the plaintiff was involved in motor
vehicle accidents in 1993, 1995 and 1996.
8
No. 1-08-2722
that her fibromyalgia and chronic pain condition resulted from
her four work-related injuries.4 The plaintiff was to continue
her home exercise program and the conservative therapy program,
the anti-inflammatories medications. She was to continue on
limited duty at work. On October 13, 2006, given the plaintiff's
persistent pain, Dr. Durudogan recommended that she have a spinal
surgical consultation. In response to an inquiry from the
medical services department, the doctor states that the
plaintiff's current symptoms were related to her October 30,
1993, accident.
On November 9, 2006, the plaintiff was examined by Dr. Frank
M. Phillips. The plaintiff gave a history of injuries sustained
in the October 30, 1993, accident and the 1996 accident in which
she sustained significant direct trauma to her right side. While
she did not sustain any fractures, she had significant soft
tissue pathology and experienced pain in her right lower
extremity ever since. Her back pain had grown progressively
worse over the last three years. Her current complaints were of
severe back pain with some radiation down her right thigh to her
knee and right-side hip pain. An MRI of the plaintiff's lumbar
spine showed loss of disc height and "signal intensity" at L5-S1
level and some modic changes at that level. There was a subtle
4
On appeal, the plaintiff does not dispute that only the
October 30, 1993, and the May 10, 1996, incidents resulted in
act-of-duty injuries.
9
No. 1-08-2722
disc bulge at L4-L5.
Dr. Phillips opined that the plaintiff had a hip joint
problem as well as lower back issues. He noted that the hip
problem was her dominant complaint and recommended that the hip
be further evaluated. The doctor recommended addressing the hip
problem first before considering any surgical intervention on her
low back. The plaintiff was not to resume work until she was
seen by a specialist for her hip.
On November 28, 2006, in response to an inquiry from the
Chicago police department, Dr. Phillips reported that the
plaintiff had a hip problem as well a lumbar problem. He
categorized the plaintiff's hip problem as "likely degenerative."
He opined that her lumbar problem was contributing to her
symptoms. If the plaintiff wished to proceed with the surgical
option, he recommended fusion or disc replacement.
On December 14, 2006, the plaintiff complained of left knee
pain to Dr. Durudogan. She maintained that she had no previous
knee symptoms prior to the original accident in 1993 and believed
that her left knee pain was connected to posttraumatic arthritis,
which, in turn, was related to her previous injury. The
plaintiff further maintained that, due to pain she experienced,
she was unable to adhere to the light duty the doctor
recommended. Further work restrictions were to be left to Dr.
Phillips to determine. The plaintiff was receiving injections
for her left knee pain and was to continue with conservative
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No. 1-08-2722
therapy. Dr. Durudogan recommended that the plaintiff have a
functional capacity evaluation.
On January 16, 2007, Dr. Durudogan rechecked the plaintiff's
left knee. The doctor recommended further injections and
medications. The plaintiff was to remain off duty and follow up
with Dr. Phillips.
On January 18, 2007, Dr. Phillips met with the plaintiff to
resolve her work issues. She continued to complain of back pain,
hip pain, and left knee pain. In his office notes, Doctor
Phillips stated:
"As I have discussed previously from a spine point of view I
believe she does indeed have discogenic low back pain. I
believe this would certainly prevent her from working
unrestricted as a police officer. In addition it would
prevent prolonged sitting. Her other physicians have
apparently informed Ms. Cole that due to the constellation
of musculoskeletal problems she is unlikely to be able to
function as [an] active duty police officer. I would
certainly not disagree with this."
Dr. Durudogan examined the plaintiff on February 20 and in
March, April and June of 2007 for complaints related to her left
knee. According to the April 19, 2007, functional capacity
evaluation report, the plaintiff demonstrated significant
difficulties with standing and moderate difficulties with
sitting. She had significant difficulties stooping and was
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No. 1-08-2722
unable to position herself to crouch, stoop, squat or crawl. She
had moderate difficulty with overhead and horizontal reaching.
She performed poorly in the simulated gun range test. Based on
the physical capabilities she did demonstrate, she would be able
to function at "the Sedentary category of work." (Emphasis in
original.)
On May 17, 2007, Dr. Wesley Y. Yapor examined the plaintiff.
The plaintiff maintained that she had never fully recovered from
the October 30, 1993, accident but that she remained on the
police force. In "1997 [sic]," she was struck by another
automobile and sustained another injury when she fell and her gun
jammed into her right hip. The doctor noted that the plaintiff
was obese, walked with a significant limp favoring her left leg
and had limited range of motion of the lumbar spine. She
complained of multiple aches and pains throughout her neck, back,
lumbar spine, left leg and right hip. The year-old MRI showed
advanced degenerative disc disease at the L5-S1 lever with "very
irregular endplates and collapsed disc spaces," which explained
the plaintiff's back pain. Dr. Yapor explained that "[c]ertainly
this is the culprit for causing severe back pain, which in
addition to the right hip problems and the left knee problems, is
my impression that the patient is certainly not fit for doing
regular police work." Given that the plaintiff had rejected the
surgical option of a lumbar reconstructive procedure, Dr. Yapor
opined that the plaintiff was completely and permanently disabled
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No. 1-08-2722
from working as a police officer.
The plaintiff was referred to Dr. George Charuk for an
independent examination. On June 21, 2007, Dr. Charuk examined
the plaintiff. In his report, Dr. Charuk detailed the
plaintiff's prior medical history. He diagnosed the plaintiff as
suffering from degenerative disc disease at L5-S1, as evidenced
by the MRI he reviewed, as well as degenerative joint disease of
the right knee and the right hip, and fibromyalgia. Asked to
establish whether there was a causal relationship between the
plaintiff's symptoms and the accident of October 30, 1993, Dr.
Charuk stated as follows:
"With regards to the injuries that she sustained in
October, 1993, it appears she had a cervical whiplash with a
sprain and strain response. She was also diagnosed with
lumbosacral strain as well as contusion to the left knee.
She has [sic] x-rays done on November 3, 1993, which showed
L5-S1 degenerative disc disease with narrowing. Findings of
degenerative disc disease and narrowing do not occur in a
matter of four days after the injury. Therefore, I do
believe her problems preceded this motor vehicle accident of
October 30, 1993."
Dr. Charuk further stated that with a work-conditioning program,
the plaintiff could be returned to light duty and that she would
be able to fire a weapon safely.
The plaintiff testified at the hearing that, due to the
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No. 1-08-2722
injuries to her back, knees and right hip she sustained from the
incidents of October 30, 1993, May 10, 1996, and September 21,
1998, she was no longer able to perform her duties as a police
officer. Prior to 1993, she had not lost any time from work due
to back pain. The plaintiff acknowledged that, at the time of
the April 14, 2006, incident, she was on limited duty. She
further acknowledged that she had been offered the option of
surgery but that Dr. Yapor could not guarantee that it would
resolve her problem, and it could possibly exacerbate it.
On October 29, 2007, the Board issued its written decision
and order. The Board found that the plaintiff had suffered
degenerative disc disease prior to the October 30, 1993,
incident. Her disc disease condition was not disabling at the
time, did not result from the October 30, 1993, incident, and it
did not prevent the plaintiff from returning to full duty. The
Board further found that the January 16, 1997, September 21,
1998, June 20, 2001, and April 11, 2006, incidents were not act-
of-duty incidents as defined in the Pension Code (40 ILCS 5/5-113
(West 2006)) (the Code). Therefore any resulting injury from
those incidents did not entitle the plaintiff to duty disability
benefits. The Board further found that the plaintiff was
entitled to an ordinary disability benefit as a result of the
degenerative disc disease of the right knee and right hip and
degenerative joint disease attributable to non-duty-related
accidents following the October 30, 1993, incident or the
14
No. 1-08-2722
plaintiff's degenerative disc disease preceding the October 30,
1993, incident.
On November 14, 2007, the plaintiff filed a complaint for
administrative review. The plaintiff argued that the Board's
findings of fact were clearly erroneous and that its decision was
against the manifest weight of the evidence. The plaintiff
requested that the circuit court reverse the Board's order and
award her duty disability benefits at the rate of 75% of her
salary and interest pursuant to section 2 of the Interest Act
(815 ILCS 205/2 (West 2006)). The circuit court found that the
plaintiff was disabled as a result of duty-related injuries but
that the disability resulted from a pre-existing physical defect.
Concluding that the Board's decision was against the manifest
weight of the evidence, the court reversed the decision and
remanded the case to the Board with directions to award the
plaintiff duty disability benefits at 50% of the plaintiff's
salary. The plaintiff's request for prejudgment interest was
denied.
The Board filed a timely notice of appeal.
Analysis
I. Jurisdiction
Although the parties have not raised an issue as to this
court's jurisdiction, a reviewing court has a duty to consider
sua sponte its jurisdiction over the issues raised by the
parties. See Revolution Portfolio, LLC v. Beale, 341 Ill. App.
15
No. 1-08-2722
3d 1021, 1024-25, 793 N.E.2d 900 (2003). In response to the
Board's argument that the circuit court erred in awarding the
plaintiff a 50% duty disability benefit, the plaintiff argues
that she is entitled to a 75% duty disability benefit. The
plaintiff also argues that she was entitled to an award of
prejudgment interest, which the circuit court denied. The
plaintiff did not file a cross-appeal raising these issues.
In General Auto Service Station v. Maniatis, 328 Ill. App.
3d 537, 544, 765 N.E.2d 1176 (2002), the court addressed when a
cross-appeal must be filed, explaining as follows:
"Findings of the trial court adverse to the appellee do not
require the appellee's cross-appeal if the judgment of the
trial court was not at least in part against the appellee.
[Citation.] It follows that findings adverse to the
appellee require a cross-appeal if the judgment was in part
against the appellee."
The circuit court's judgment awarding her a 50% duty
disability benefit instead of the 75% duty disability benefit and
denying her prejudgment interest was at least in part against the
plaintiff. Therefore, she was required to file a cross-appeal
if she wished to raise those issues in this appeal. In the
absence of a cross-appeal, this court lacks jurisdiction over
those issues. See Aurora East School District v. Dover, 363 Ill.
App. 3d 1048, 1059, 846 N.E.2d 623 (2006) (in the absence of a
cross-appeal, the court lacked jurisdiction to consider the
16
No. 1-08-2722
defendant's request for additional fees, costs and prejudgment
interest); but see In re K.A., 335 Ill. App. 3d 1095, 782 N.E.2d
937 (2003) (Fourth District Appellate Court found that the rule
of waiver, not jurisdiction, applied to the failure to file a
cross-appeal).
As we lack jurisdiction to determine if the plaintiff was
entitled to a 75% duty disability benefit and prejudgment
interest, we do not reach those issues. We now turn to the
issues properly before us on appeal.
II. Duty Disability Benefit
The Board contends its decision to deny the plaintiff a duty
disability benefit was not against the manifest weight of the
evidence.
A. Standard of Review
The Administrative Review Law (735 ILCS 5/3-101 et seq.
(West 2006)) provides that our review extends to all questions of
fact and law presented by the entire record. 735 ILCS 5/3-110
(West 2006). We review rulings on questions of law de novo;
rulings on questions of fact will be reversed only if they are
against the manifest weight of the evidence. Wade v. North
Chicago Police Pension Board, 226 Ill. 2d 485, 504-05, 877 N.E.2d
1101 (2007). We apply the clearly erroneous standard to mixed
questions of law and fact. Marconi v. Chicago Heights Police
Pension Board, 225 Ill. 2d 497, 532, 870 N.E.2d 273 (2006).
17
No. 1-08-2722
B. Applicable Principles
In administrative review cases, we review the decision of
the administrative agency, not the decision of the circuit court.
Marconi, 225 Ill. 2d at 531. Whether the evidence of record
supports the Board's denial of the plaintiff's application for a
disability pension is a question of fact to which this court
applies the manifest weight standard. Wade, 226 Ill. 2d at 505.
"'An administrative agency decision is against the manifest
weight of the evidence only if the opposite conclusion is clearly
evident.'" Wade, 226 Ill. 2d at 504-05, quoting Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
88, 606 N.E.2d 1111 (1992). Under any standard of review, the
burden of proof is on the plaintiff, and the failure to sustain
that burden will result in denial of the relief sought. Wade,
226 Ill. 2d at 505.
C. Discussion
In this case, the Board denied the plaintiff a duty
disability pension as provided for in section 5-154 of the Code.
Section 5-154 provides in pertinent part as follows:
"(a) An active policeman who becomes disabled on or
after the effective date as the result of injury incurred on
or after such date in the performance of an act of duty, has
a right to receive duty disability benefit during any period
of such disability for which he does not have a right to
receive salary, equal to 75% of his salary, as salary is
18
No. 1-08-2722
defined in this Article, at the time the disability is
allowed ***." 40 ILCS 5/5-154(a) (West 2006).
Instead the Board awarded the plaintiff an ordinary disability
benefit pursuant to section 5-155 of the Code. Section 5-155
provides in pertinent part as follows:
"A policeman less than age 63 who becomes disabled
after the effective date as the result of any cause other
than injury incurred in the performance of an act of duty,
shall receive ordinary disability benefit during any period
or periods of disability exceeding 30 days for which he does
not have a right to receive any part of his salary.
* * *
Ordinary disability benefit shall be 50% of the
policeman's salary, as salary is defined in this Article, at
the time disability occurs." 40 ILCS 5/5-155 (West 2006).
In reversing the decision of the Board, the circuit court
found that the plaintiff was "disabled as a result of injuries
incurred in the performance of active duty, however said
disability resulted from a physical defect which existed at the
time the injury was sustained." The court ordered that the Board
award the plaintiff a duty disability benefit pursuant to section
5-154(a)(i), which provides in pertinent part as follows:
"If the disability resulted from any physical defect or
mental disorder or any disease which existed at the time the
injury was sustained, or if the disability is less than 50%
19
No. 1-08-2722
of total disability for any service of a remunerative
character, the duty disability benefit shall be 50% of
salary as defined in this Article." 40 ILCS 5/5-154(a)(i)
(West 2006).
The duty disability benefit is payable until the police officer
reaches age 63 or is retired by operation of law. 40 ILCS 5/5-
154(c) (West 2006). The ordinary disability benefit also ceases
when the police officer reaches age 63 or retires. 40 ILCS 5/5-
155 (West 2006). However, in addition, section 5-155 further
provides that the payment of the ordinary disability benefit
"shall not exceed, in the aggregate, throughout the total service
of the policeman, a period equal to one-fourth of the service
rendered to the city prior to the time he became disabled, nor
more than 5 years." 40 ILCS 5/5-155 (West 2006).
When reviewing the agency's decision, a reviewing court may
not reverse administrative findings merely because an opposite
conclusion is reasonable or because the court might have ruled
differently. Marconi, 225 Ill. 2d at 534. In our examination of
an administrative agency's factual findings, we do not weigh the
evidence or substitute our judgment for that of the agency.
Marconi, 225 Ill. 2d at 534. Where the record contains evidence
to support the agency's decision, we will affirm. Marconi, 225
Ill. 2d at 534.
It is undisputed that in the October 30, 1993, incident, the
plaintiff sustained injuries while performing an "act of duty" as
20
No. 1-08-2722
defined under the Code.5 See 40 ILCS 5/5-113 (West 2006).
It is also undisputed that the plaintiff is disabled.
In Samuels v. Retirement Board of the Policemen's Annuity &
Benefit Fund, 289 Ill. App. 3d 651, 682 N.E.2d 276 (1997), this
court construed section 5-154 as providing benefits in two
separate instances: "(1) where a disability occurs as a result of
(is caused by) an on-duty injury; and (2) where a disability
results from (stems from) a preexisting condition as opposed to
being caused by the injury." (Emphasis in original.) Samuels,
289 Ill. App. 3d at 661. The court further explained as follows:
"In the first instance, the duty disability benefit is 75%
of the officer's salary. In the second instance, where the
disability 'resulted from any physical defect or mental
disorder or any disease which existed at the time the injury
was sustained,' the duty disability is 50% of the officer's
salary. (Emphasis added.) [Citation.] The statute does
not include language stating that, even if an officer has a
physical defect, mental disorder or disease prior to the
subsequent on-duty injury, the officer is entitled to a duty
disability pension of 75% of salary if 'but for' the on-duty
injury the disability would not exist. Instead, under the
5
In her application for benefits, the plaintiff did not
include the May 10, 1996, incident as a basis for an award of
benefits. However, the Board does not dispute that May 10, 1996,
was also an act-of-duty incident.
21
No. 1-08-2722
statute, the officer will be given a duty disability pension
of 50% of his salary if the disability 'resulted from' the
preexisting condition, notwithstanding the effect the on-
going injury may have had on the preexisting condition."
Samuels, 289 Ill. App. 3d at 661-62, quoting 40 ILCS 5/5-154
(West Supp. 1995).
In this case, if the plaintiff's disability resulted from a
preexisting condition, which existed at the time the act-of-duty
injury was sustained, she is entitled to a duty disability
benefit at 50% of her salary rate.
In Samuels, the plaintiff sustained act-of-duty injuries to
her neck and the lower area of her right shoulder. She was
diagnosed with a herniated disc. It was determined that she also
suffered from degenerative disc disease. The plaintiff was
placed on medical leave and received treatment but never returned
to her duties as a police officer. At the second hearing on her
application for benefits, there was conflicting medical evidence
as to whether the plaintiff's inability to work was related to
her on-duty injuries or her degenerative disc disease. The
doctor who examined her at the Board's request testified that he
did not find a herniated disc, but he concluded that the
plaintiff had degenerative disc disease which was present on the
date of her on-duty injury. Therefore, the on-duty injury could
not have caused the disc disease. The doctor opined that the
plaintiff could not return to work because of the degenerative
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No. 1-08-2722
disc disease. Samuels, 289 Ill. App. 3d at 659.
The Board made the following findings: (1) the plaintiff had
sustained an injury during an act of duty, (2) her current
disability, the degenerative disc disease, prevented her from
returning to work, and (3) the plaintiff's inability to return to
work was the result of a physical defect, the degenerative disc
disease, that existed at the time of her on-duty injury was
sustained. The Board awarded the plaintiff a duty disability
pension in the amount of 50% of her base salary. Samuels, 289
Ill. App. 3d at 659-60. The plaintiff filed a complaint for
administrative review. The circuit court reversed the Board's
decision and remanded the case to the Board. The court framed
the issue before it as whether or not the record reflected that
the injury was the result of a preexisting condition. In light
of the evidence that the plaintiff went from being an active
person to a disabled person following her injury, it concluded
that the Board's finding was not supported by the evidence.
Samuels, 289 Ill. App. 3d at 660.
On review before this court, the parties disputed the
meaning of section 5-154. The Board maintained that if a police
officer suffered an act-of-duty injury and the injury exacerbated
or otherwise made active a preexisting condition, the officer is
entitled to the 50% benefit. The plaintiff maintained that the
"resulting from" language of section 5-154 implied causation and
required the Board to consider whether, "'but for' the injury,
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No. 1-08-2722
[her] disability would not have occurred." Samuels, 289 Ill.
App. 3d at 661.
This court held that the circuit court erred in reversing
the Board's decision awarding the plaintiff a duty disability
benefit at 50% of her salary. The court found that competent
evidence supported the Board's decision that the plaintiff's
disability resulted from preexisting degenerative disc disease.
Therefore, the circuit court erred in reversing the Board's
decision as against the manifest weight of the evidence.
Samuels, 289 Ill. App. 3d at 662-63.
As in Samuels, in the present case, there was evidence that
the plaintiff showed signs of degenerative disc disease at the
time she suffered her act-of-duty injuries. Unlike the plaintiff
in Samuels, the plaintiff here returned to full duty after she
was injured in the act-of-duty incidents of October 30, 1993, and
May 10, 1996. However, as the court in Samuels stated, "the
officer will be given a duty disability pension of 50% of his
salary if the disability 'resulted from' the preexisting
condition, notwithstanding the effect the on-duty injury may have
had on the preexisting condition." Samuels, 289 Ill. App. 3d at
662.
The decision in Flaherty v. Retirement Board of the
Policemen's Annuity & Benefit Fund, 311 Ill. App. 3d 62, 724
N.E.2d 145 (1999), does not require a different result. In
Flaherty, the plaintiff sustained duty-related injuries in 1979
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No. 1-08-2722
and 1985. In 1989, he was again injured in a duty-related
accident when his motorcycle was struck from behind, and he was
treated for back sprain. He also suffered back injuries as the
result of an off-duty car accident in 1980 and a fall in 1984.
The plaintiff was able to return to full duty following each of
these incidents. After the July 1989, accident, he did not
suffer any further back-related injuries. Then, in April 1995,
while getting out of bed, he felt a sharp pain and collapsed a
short while later with pain radiating from his left lower back
down his left leg. There was evidence that the plaintiff had
been suffering from degenerative disc disease prior to 1995. The
Board granted the plaintiff an ordinary disability benefit at 50%
of his salary rather than the 75% duty disability benefit the
plaintiff sought. The circuit court affirmed the Board's
decision, and the plaintiff appealed.
This court affirmed the decision of the Board. The court
determined that the Board's decision to award the ordinary
disability benefit was supported by the record as none of the
doctors who testified could state with certainty that the
plaintiff's herniated disc was caused by a series of on-duty
accidents culminating in the July 1989, incident. Therefore, the
court concluded that the Board's decision was not against the
manifest weight of the evidence. Flaherty, 311 Ill. App. 3d at
66.
Flaherty is distinguishable from the present case. In
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No. 1-08-2722
Flaherty, while there was evidence that the plaintiff had
degenerative disc disease, the Board found that the plaintiff's
inability to work was due to his 1995 off-duty incident, not a
preexisting condition. Therefore, no issue as to whether the
plaintiff in Flaherty was entitled to a 50% duty disability
benefit arose in that case. In the present case, the Board's
decision denied the plaintiff any duty disability benefit.
However, the record in this case clearly establishes that the
plaintiff's disability resulted from a preexisting condition,
entitling her to a 50% duty disability benefit. As the opposite
conclusion is clearly evident, the Board's decision is against
the manifest weight of the evidence.
The Board contends that the circuit court lacked the
authority under the Administrative Review Law to order it to
award the plaintiff duty disability benefits. We disagree.
Under the Administrative Review Law, the circuit court has
the power:
"(5) to affirm or reverse the decision in whole or in
part;
(6) where a hearing has been held by the agency, to
reverse and remand the decision in whole or in part, and, in
that case, to state the questions requiring further hearing
or proceedings and to give such other instructions as may be
proper." 735 ILCS 5/3-111 (West 2006).
The circuit court did not exceed its authority here. It
26
No. 1-08-2722
remanded the case with directions to award the plaintiff the 50%
duty disability benefit to which she was clearly entitled under
the record in this case. The Board's reliance on Mitchem v. Cook
County Sheriff's Merit Board, 196 Ill. App. 3d 528, 554 N.E.2d
331 (1990), is misplaced. There the appellate court found the
circuit court had exceeded its powers by awarding back pay. The
court was limited to the record before it, and the award of back
pay and benefits required the taking of additional evidence.
Mitchem, 196 Ill. App. 3d at 534. In the present case, the
circuit court's determination that the plaintiff was entitled to
the 50% duty disability benefit was based on the record before
it.
The judgment of the circuit court is affirmed.
Affirmed.
GARCIA and PATTI, JJ., concur.
27