dissenting:
I must respectfully dissent.
First, we must both enforce the Illinois Pension Code (Code) as written and liberally construe the Code in favor of those to be benefit-ted. Hahn v. Police Pension Fund, 138 Ill. App. 3d 206, 211 (1985). To properly enforce the Code, we must give the Code its plain and ordinary meaning. People v. Pack, 224 Ill. 2d 144, 147 (2007). Section 3 — 114.2 of the Code states a police officer is entitled to a not-on-duty disability pension if he or she “becomes disabled as a result of any cause other than the performance of an act or duty, and who is found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service.” (Emphasis added.) 40 ILCS 5/3 — 114.2 (West 2002). Thus, the determination is solely whether plaintiff is physically or mentally disabled and, if so, whether her disablement occurred in the performance of her duties as a police officer or otherwise.
Second, I agree with the majority that the board of trustees’ (Board) decision is not against the manifest weight of the evidence that plaintiff was not injured in the line of duty during the October 17, 1996, police baton training session based on the evidence in the record. I do not agree with the majority, nor the Board’s finding that plaintiff is not physically disabled so as to render necessary her suspension or retirement from police service. I believe the trial court correctly ruled that the decision of the Board in this regard was against the manifest weight of the evidence.
“ ‘An administrative agency[’s] decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident.’ ” Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 534 (2007), quoting Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). “So long as the record contains evidence supporting the agency’s decision, that decision should be affirmed.” Marconi, 225 Ill. 2d at 540, citing Commonwealth Edison Co. v. Property Tax Appeal Board, 102 Ill. 2d 443, 467 (1984). The majority correctly notes we must confirm the Board’s decision if the record contains evidence to support its decision, and as Marconi instructed, the manifest weight of the evidence standard is a “very high threshold to surmount.” Marconi, 225 Ill. 2d at 540. Our review of the Board’s decision, however, must not amount to a mere rubber stamp of the Board’s proceedings merely because the Board heard witnesses, reviewed records and made findings. Bowlin v. Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App. 3d 205, 211 (2006); Brown Shoe Co. v. Gordon, 405 Ill. 384, 392 (1950); Drezner v. Civil Service Comm’n, 398 Ill. 219, 231 (1947). Furthermore, a reviewing court will not hesitate to grant relief where the record does not show evidentiary support for the agency’s determination. Bowlin, 368 Ill. App. 3d at 211.
As such, we must examine, and not merely rubber-stamp, the Board’s decision and ascertain whether the Board was permittedly “weighing the evidence,” as the majority asserts, or whether an opposite finding is clearly evident. See 402 Ill. App. 3d at 1049. In finding that plaintiff was not physically disabled, the Board relied entirely on the opinion of one physician, Dr. Charles Mercier, an orthopedic surgeon, whose written report contained erroneous assumptions and inherent contradictions and focused almost entirely on plaintiffs medical history prior to her cervical fusion surgery. Two other physicians who examined plaintiff found her to be physically disabled, as did her treating physician, so as to make her unsuitable for return to active duty as a police officer. The majority concludes that the trial court reversed the Board’s finding of no physical disability because of Dr. Mercier’s “erroneous belief that plaintiff had received neck treatment before the October 1996 training incident.” 402 Ill. App. 3d at 1049. Indeed, there are numerous incorrect mentions of a preexisting injury in Dr. Mercier’s report, but the trial court found other inconsistencies with Dr. Mercier’s report. Also, the Board improperly relied on Dr. Mercier’s conclusions that had no medical basis. I review the medical findings of the three physicians that were authorized to examine plaintiff by the Board and the treating physician in coming to my conclusion.
Dr. James W. Milgram, a board-certified orthopedic surgeon at Northwestern Hospital in Chicago, performed a clinical examination of plaintiff on October 17, 2003, on the instruction of the Board. He reviewed plaintiffs medical records, X rays, and the various medical reports in her file. He found a solid anterior cervical fusion at three levels with bone grafts at all three levels. He questioned the need for the fusion to cover such a vast area. He found that as a result of this vast fused area, plaintiff has no cervical spine and that the forces of the neck are transmitted to the disc above and below the fused area. Plaintiffs examination revealed restricted flexion and extension of the neck with only partial rotation. Dr. Milgram further found “that there is increased hazard of her having symptomatology above or below her fusion segment” from necessary police work. He described fights as causing further future disability and opined based on these objective findings that she was disabled for police work with a lifting restriction of 50 pounds. After receiving Dr. Milgram’s medical report in evidence, the Board dissected and read out of context the words “future disability” and disregarded the report, stating “[t]he Pension Board cannot find the plaintiff disabled based on a fear, concern, assumption or guess.” Dr. Milgram specifically referred to plaintiff’s current “disability” in a preceding paragraph and suggested further disability may occur if she were to return to police duty. The Board rejected Dr. Mil-gram’s report based on a mistaken interpretation of his findings. Dr. Milgram was merely telling the Board that common police work would cause future disability that would add to the disability she already had incurred.
The Board further rejected the findings of Dr. Sam S. Rosenblatt, a board-certified neurosurgeon at Northwestern, who conducted an independent clinical examination of plaintiff on June 7, 2004, at the Board’s direction. The Board rejected Dr. Rosenblatt’s opinions because he prepared a “cursory two (2) page report.” However, the only report it relied on was authored by Dr. Charles Mercier, and his report pertaining to his findings after spinal fusion surgery spans less than two pages. The Board also claims Dr. Rosenblatt simply accepted the plaintiff’s subjective complaints at face value and certified the plaintiff disabled. As the trial judge noted in her well-written, lengthy decision, the Board’s justification conveniently ignored that Dr. Rosenblatt reviewed the X rays and other diagnostic tests taken after the spinal fusion, which offered clear objective evidence as to the basis for his opinion that plaintiff was “significantly disabled” and not suitable for return to active duty as a police officer. Dr. Rosenblatt is the only physician who rendered a medical report that actually put down his measurements that supported his opinions as to the restrictive nature of plaintiff’s neck. He found her flexion at a mere 10 degrees and extension at 25 degrees, rotation to the right at 25 degrees and to the left at 35 degrees. He further found her lateral bending of her head restricted to 25 degrees to each side. He also found no right tricep reflex. Dr. Rosenblatt’s opinions are hardly subjective findings.
The treating doctor, Dr. Phillips, performed the anterior cervical fusion on November 7, 1999, fusing C3-C4 through C5-C6. Dr. Phillips recommended a functional capacity evaluation at the Veterans Administration (VA) and the examiner opined that plaintiff could not return to work. On March 13, 2001, Dr. Phillips found limitation in plaintiffs range of motion, found limitation of lifting to 50 pounds, and prescribed no overhead lifting and no excessive twisting of the neck. An additional functional capacity evaluation was conducted on August 5, 2002, and the examiner again opined that plaintiff could not return to work. Her weight lifting was reduced to 40 pounds, and Dr. Phillips suggested that the positions she uses for twisting and stooping be decreased or eliminated through the use of proper body mechanics. Dr. Phillips found plaintiff disabled for work return as a police officer based on his objective findings and the findings of the functional capacity evaluation.
The only physician of the three who examined plaintiff on behalf of the Board who disagreed that plaintiff was disabled to be a police officer was Dr. Charles Mercier. Dr. Mercier found strength and motion limitations but opined without any basis whatsoever “I am sure with some work hardening/work conditioning, any strength and motion limitations could be resolved allowing this patient to return [to] work as a full-time police officer.” Dr. Mercier’s report does not show any basis for his opinions or findings. He examined plaintiff on October 16, 2003, found a 50% reduction in flexion and extension, and then made a conclusion of “not disabled” on the physician’s certificate without any basis whatsoever and never mentioned disability or the lack of it in his written report. Further, Dr. Mercier’s report makes numerous mentions of a preexisting neck injury. However, as the trial court notes, there is no evidence in the record of a preexisting neck injury, and Dr. Mercier was mistaken regarding the existence of preexisting neck injury.
Furthermore, the vast majority of the medical history in Dr. Mercier’s report, which the Board found to be “the most thorough and thoughtful analysis,” was prior to plaintiffs November 1999 cervical fusion surgery. Defendant argues the cervical fusion surgery was an “unnecessary and unjustified” operation, and the majority notes “subsequent medical care for her neck problem [including the cervical fusion surgery] was not related to the training incident.” 402 Ill. App. 3d at 1049. Again, a plain and ordinary reading of section 3 — 114.2 allows a not-on-duty disability pension for a person “disabled as a result of any cause other than the performance of an act or duty.” (Emphasis added.) 40 ILCS 5/3 — 114.2 (West 2002). As such, the soundness of plaintiffs decision to undergo spinal fusion surgery or the relatedness to the training incident is immaterial to the analysis. As the trial court noted, “Although there were questions raised as to the necessity of the surgery, the fusion is an undeniable medical fact.” The report concludes with a short postoperative timeline, which mentions a VA functional capacity evaluation that plaintiff underwent in February of 2001 and then notes, “The examiner stated that the patient could not return to work as a police officer.” The report then mentions a March 2001 examination by plaintiff’s treating physician, Dr. Phillips, and states, “Dr. Phillips also stated that the patient could not return to work as a police officer.” As aforementioned, Dr. Mercier’s report concludes with, “I am sure with some work hardening/work conditioning, any strength and motion limitations could be resolved allowing this patient to return to work as a full-time police officer.” As the trial court noted, there is no further medical explanation or basis as to why Dr. Mercier believes he is “sure” further rehabilitation will cure plaintiff’s disablement or why he disagrees with plaintiff’s treating physician, the VA functional capacity evaluation of February 2001, and every other doctor who examined plaintiff.
“An expert’s opinion is only as valid as the basis and reasons for the opinion.” Wilson v. Bell Fuels, Inc., 214 Ill. App. 3d 868, 875 (1991), citing McCormick v. Maplehurst Winter Sports, Ltd., 166 Ill. App. 3d 93, 100 (1988). “When there is no factual support for an expert’s conclusions, the conclusions alone do not create a question of fact.” Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707, 715 (1994). This court has held that the opinions offered by a party’s experts lacked a sufficient factual basis and were therefore based on conjecture. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 976 (1997). Arbitrary and untenable reasons for denying a pension will not be tolerated. Bowlin, 368 Ill. App. 3d at 212. “Although the manifest evidence standard is a high hurdle, it still does not relieve the appellate court of ‘its duty to examine the evidence in an impartial manner and to set aside an order unsupported in fact.’ ” Boom Town Saloon, Inc. v. City of Chicago, 384 Ill. App. 3d 27, 32 (2008), quoting Leong v. Village of Schaumburg, 194 Ill. App. 3d 60, 65 (1990); Amigo’s Inn, Inc. v. License Appeal Comm’n, 354 Ill. App. 3d 959, 967 (2004).
Our Fifth District in Bowlin held a firefighter board’s reliance on one doctor’s inherently contradictory conclusion that the plaintiff firefighter was not disabled to be against the manifest weight of the evidence given that the other two examining doctors and treating physicians all found the plaintiff to be disabled. Bowlin, 368 Ill. App. 3d at 212. In the case at bar, I see little difference. Dr. Mercier has provided no basis for his opinion that plaintiff is not physically disabled, his report is contradictory, and the Board has offered no medical evidence to justify his position. Drs. Milgram and Rosenblatt provided a medical basis in finding their opinions that plaintiff was disabled, and plaintiffs treating physician, Dr. Phillips, concurs. The Board gave more weight to Dr. Mercier’s report because of its “detailed summary” of plaintiffs health history. The Board found Dr. Mercier’s conclusions to be better explained and reasoned, but there was no explanation and reasoning. The “detailed summary” of plaintiff’s health history was a history that was mostly prior to plaintiffs surgery. Dr. Mercier never cleared plaintiff for active duty nor did he ever say that she could return to work. He merely concluded that she “would be able to return” with work hardening and conditioning, which conflicts with his opinion that she is not disabled. Marconi set a “very high threshold to surmount” but plaintiff has surmounted this threshold. Marconi, 225 Ill. 2d at 540. I agree with the trial court that the Board’s decision to deny plaintiff benefits is against the manifest weight of the evidence.
For these reasons, I cannot agree with the majority.