dissenting:
I respectfully dissent for two reasons. First, I believe the Board’s finding that Thigpen had not established he was “disabled as a result of an act or acts of duty” was not against the manifest weight of the evidence.
As the majority points out, a judgment is against the manifest weight of the evidence when it appears from the record that an opposite conclusion is clearly evident. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). In order to make a finding, however, that an opposite conclusion is clearly evident, we as a reviewing court:
“must conclude that all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous ***. [Citation.] It is not sufficient that there are mere conflicts in the testimony or that an opposite conclusion might be reasonable; since the weight of the evidence and the credibility of the witnesses are within the province of the agency, there need be only some competent evidence in the record to support its findings.” Evert v. Board of Trustees of the Fire Fighters’ Pension Fund, 180 Ill. App. 3d 656, 660, 536 N.E.2d 143 (1989).
In my opinion there is competent evidence in the record that supports the Board’s finding that Thigpen had not established he was disabled as a result of an act or acts of duty.
Although Dr. Motto did testify to a reasonable degree of medical certainty that Thigpen could not perform his duties as a firefighter, Dr. Motto’s testimony also indicated he could not “say for certain” that Thigpen’s disability stemmed from the February 1995 fall. He did say that, “chronologically or according to the testimony” of witnesses, he believed the “current disability stems from the September 22 — I believe it’s 1995.”
Dr. Motto’s letter to the Board dated March 25, 1998, does not suggest that he was of the opinion that Thigpen was disabled as a result of the February 25, 1995, fall. The letter does reflect that “Thigpen considers himself ‘totally disabled.’ ” Noteworthy is the fact that this letter was written after Dr. Motto conducted a medical examination of Thigpen.
At the hearing before the Board, Dr. Motto also conceded that Thigpen had a history of back problems that predated the 1995 incident. He also indicated, however, that all of Thigpen’s recent problems seem to postdate the 1995 fall.
Dr. Motto’s testimony and letter could be interpreted as equivocal and thus support the Board’s finding that Thigpen had not established he was disabled as a result of an act of duty.
Under Nowak v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 315 Ill. App. 3d 403, 733 N.E.2d 804 (2000), the majority explains that the Board must receive proof of the claimant’s disability from at least one physician appointed by the Board. Nowak, 315 Ill. App. 3d at 412. Looking at Dr. Motto’s testimony in its entirety, I believe there is some question whether the Board received proof of Thigpen’s duty disability from at least one physician appointed by the Board. Nowak, 315 Ill. App. 3d at 412; 40 ILCS 5/6 — 153 (West 1996).
There was also other evidence in the record that supports the Board’s finding that Thigpen failed to establish he was disabled as a result of an act of duty. Some of that evidence included the initial emergency room X rays taken the day of Thigpen’s February 1995 fall. Those reports were negative for any fracture or destructive bony process. While there was evidence of degenerative changes in the spine at that time, there was no evidence of a fracture to the lumbar spine.
The FCE report from June 1998 indicated that Phil Rios, the examiner, could make no recommendation regarding Thigpen’s functional capacity at that time due to Thigpen’s “positive testing for non-exertion of maximum effort and inappropriate illness behavior.”
Dr. Robert Gettleman’s letter of April 8, 1998, reflects that as of the 20th of October 1997, although Thigpen was complaining of low back pain that occasionally radiated down both legs, upon examination the doctor “found him to have no difficulty with straight leg raising to 90 degrees on either side. He had normal strength and sensation.” Dr. Gettleman who examined and treated Thigpen a number of times after the February 1995 fall could not state to a reasonable degree of medical certainty that Thigpen’s problems related to his 1995 fall from the ladder. Thigpen’s complaints of low back pain that radiated down his legs had been documented for several years before 1995, although objective findings supporting those complaints were absent from some of those reports.
Additionally, a three-phase bone scan performed in October 1997 was negative for a fracture or herniated disc. Thigpen’s sworn application for duty disability benefits indicated that he suffered from a herniated disc as a result of the February fall. There was no medical testimony to support that portion of the sworn statement. In fact, the medical evidence indicated the contrary, that Thigpen did not suffer from a herniated disc.
The Board also found portions of Thigpen’s testimony incredible. That finding was also supported by the evidence. Two separate functional capacity evaluations conducted in 1998 showed some symptom exaggeration by Thigpen. Thigpen could recall some of his medical history but had a very limited recall of his prior injuries related to motor vehicle accidents.
Thigpen had a history of back problems related to those nonduty accidents long before 1995 which kept him off work for a considerable period of time.
His layup history included a 207-day absence from work because of a 1979 nonduty car accident. In 1982, Thigpen was off 60 days because of back pain due to another nonduty motor vehicle accident. In 1984, Thigpen was off 36 days for “acute lumbar radiculopathy and cervical strain” unrelated to duty. He was off work for over 200 days in 1984 for the above injury coupled with a 183-day absence for a nonduty-related foot surgery.
In 1980 after Thigpen’s first automobile accident, Dr. Siqueira examined Thigpen for complaints of lower back pain and found no evidence of organic neurological disease.
Dr. Stephen Mather, who treated Thigpen after the February 1995 fall, concluded that Thigpen’s complaints of low back pain were without objective findings.
There is no question that in an April 1998 letter Dr. Ike Arene was of the opinion that Thigpen’s medical condition was the result of the trauma from the fall on February 22, 1995, and Thigpen could not perform the duties of a firefighter. However, this letter was not the only evidence presented, as was pointed out above.
The majority criticizes the Board because it makes no reference to Dr. Motto’s opinion. The majority notes that the Board’s decision narrowly focused on the June 1998 FCE, Rios’ comment in that same FCE that Thigpen’s performance was highly suspect and Thigpen’s testimony about his prior injuries. The majority then interprets those same FCE results as being negative for inappropriate illness behaviors. The majority says the Board “discounted” the 1998 FCE conducted by Comerowski. 317 Ill. App, 3d at 1019. The majority suggests that the Board has somehow improperly “inferred” Thigpen’s back problems stem from his earlier nonduty back injuries. 317 Ill. App. 3d at 1020. Based upon all of the evidence presented, the Board could reasonably infer this, in addition to inferring that Thigpen was not disabled as a result of an act of duty.
These findings made by the majority in my opinion indicate an impermissible reweighing of the evidence and an independent determination of the credibility of the witnesses. By reweighing the evidence and independently determining the credibility of the witnesses, I believe the majority and the circuit court below have substituted their judgment for that of the Board. Rhoads v. Board of Trustees of the City of Calumet City Policemen’s Pension Fund, 293 Ill. App. 3d 1070, 1076, 678 N.E.2d 266 (1997).
The majority also says “none of the witnesses have testified that Thigpen was not disabled as a result of the February 22, 1995 fall.” (Emphasis in original.) 317 Ill. App. 3d at 1019. I disagree with this comment for two reasons. First, the burden rests upon the applicant to establish that he was disabled as a result of an act of duty; and second, there was medical testimony in the record that could have been interpreted by the Board as demonstrating that Thigpen was not disabled as result of the February 22, 1995, fall. Evert, 180 Ill. App. 3d at 661.
The majority concludes that the Board cannot disregard the testimony of an unimpeached witness where the testimony is uncontradicted. Had the Board disregarded all the credible, uncontradicted evidence in this case I would agree with this conclusion. But that is not what occurred here. Some of the Board members chose to disregard either Dr. Motto’s testimony or Dr. Arene’s opinion as it was their prerogative to do. In addition, I believe Dr. Motto’s testimony could be interpreted unfavorably for Thigpen on the question of whether he was disabled as a result of an act of duty. Again, interpreting and weighing the testimony of witnesses is the Board’s function, not ours. Dr. Gettleman’s letter clearly supports the Board’s finding that Thigpen failed to establish his disability was the result of an act of duty. Although one may reach an opposite conclusion from the conflicting evidence presented in this case, I cannot say an opposite conclusion is clearly evident.
I also dissent because I do not believe the Board is required to accept medical evidence when there is other evidence in the record that supports the finding that the pension applicant is not disabled as a result of an act of duty. The Pension Code provides that, in addition to receiving proof of duty disability from one physician appointed by the Board, the Board may require other evidence of disability. 40 ILCS 5/6 — 153 (West 1996). In my opinion, this section allows the Board to consider evidence other than medical testimony. Here, even if Dr. Motto’s testimony could be interpreted only as the majority holds, the Board is not required to accept it, because it has the authority to “require other evidence.” 40 ILCS 5/6 — 153 (West 1996).
In addition, although Nowak did not specifically address this particular provision of section 6 — 153, it did note that “[t]he Board would not be bound to find a claimant disabled simply because the Board-appointed doctor so found.” Nowak, 315 Ill. App. 3d at 412. Because there is some competent evidence in the record that supports the Board’s finding, I would reverse the decision of the trial court and affirm the decision of the Board.
For all the above reasons, I respectfully dissent.