                           NO. 4-05-0943       Filed: 9/7/06

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

ERIC McKEE,                             )    Appeal from
          Plaintiff-Appellant,          )    Circuit Court of
          v.                            )    Champaign County
THE BOARD OF TRUSTEES OF THE CHAMPAIGN )     No. 03MR392
POLICE PENSION FUND, an Illinois        )
Administrative Agency; and WILLIAM      )
NEUMANN, MARK MEDLYN, DONALD ATKINS,    )
RICHARD SCHNUER, and VAN DUKEMAN,       )
Individually and as Members of the      )
Board of Trustees of the Champaign      )    Honorable
Police Pension Fund,                    )    John R. Kennedy,
          Defendants-Appellees.         )    Judge Presiding.
_________________________________________________________________

           JUSTICE COOK delivered the opinion of the court:

           Plaintiff, Eric McKee, a Champaign police officer,

filed an application for disability benefits with the Board of

Trustees of the Champaign Police Pension Board (Board).    On May

21, 2003, the Board denied his application.    Plaintiff filed a

complaint for administrative review.   The circuit court affirmed

the Board's decision on October 13, 2005.   Plaintiff appeals.     We

affirm.

                           I. BACKGROUND

           At approximately 9:30 p.m. on September 15, 1998,

plaintiff and other officers attempted to place a combative

suspect in the rear of a squad car.    Plaintiff testified that the

morning of September 16 he woke up with severe back pain but did

not associate the pain with picking up the suspect the night

before.   He called in sick for his shift that was to begin at 3

p.m.   He called Dr. Robert Healy's office but was unable to get
an appointment until September 18.

           On September 18, plaintiff saw K. Smitlyn, the nurse-

practitioner at Dr. Healy's office.    Smitlyn's notes state, "No

known injury, but he did lift a man into his patrol car 2 days

prior--no pain at that time.   Played golf the next day and felt

fine til he woke up the following day."   Plaintiff testified he

did not play golf September 16 and did not tell Smitlyn that he

had; when Smitlyn asked about his exercise and recreational

activities, plaintiff told her he played golf and was a scuba
diver.   Smitlyn wrote a note excusing plaintiff from work until

September 21 and told him to take ibuprofen and call if he was

not better in two weeks.   On November 5, plaintiff saw Healy.   On

November 11, plaintiff underwent magnetic resonance imaging

(MRI).   The MRI indicated a bulging disc and a problem with the

exiting nerve root.   Plaintiff thereafter began to work light

duty; in February 1999, he stopped working for the police depart-

ment entirely.

           On November 6, 1998, plaintiff filed a duty-injury

report, stating he injured his lower back carrying the suspect on

September 15 but did not realize he had hurt himself until the

morning of September 16.   He wrote that he had not filed a duty-

injury report at that time because he believed the injury would

heal after a few days.   On April 23, 1999, plaintiff filed an

application for disability benefits with the Board.

           From November 1998 through August 2000, plaintiff saw

nine physicians and two chiropractors.    On December 2, 1998, Dr.


                               - 2 -
James J. Harms diagnosed a herniated disc at L4-L5 and saw "a

little premature degenerative disc disease."      Harms indicated

most people start improving within 6 to 12 weeks and recommended

temporary measures to help plaintiff's pain.      On March 28 or 29,

1999, Harms again saw plaintiff.    He wrote plaintiff was getting

better but signed a certificate of disability at that time.

Harms saw plaintiff in June 1999, after plaintiff underwent an

epidural steroid injection.   Harms wrote that if another injec-

tion did not help, plaintiff was a good candidate for surgery.
Plaintiff underwent a second epidural injection in August 1999,

which he reported aggravated his pain.      On April 28, 2000, Harms

wrote he could not tell how disabling plaintiff's injuries were;

80% of people with the condition get over it in a few months, but

sometimes it takes longer.

          At the request of the workers' compensation administra-

tor, plaintiff saw Dr. Patrick A. Hogan on January 27, 1999.

Hogan noted the MRI revealed a small disc herniation at L4-L5 on

the left but concluded that "some occurrence regarding his golf

or something that might have happened during the night" produced

the disc herniation "since he was asymptomatic for 48 or more

hours from the lifting incident."      In a May 23, 2000, report,

Hogan noted plaintiff had indicated the suggestion he had played

golf was incorrect.

          Dr. M.R. Carlson saw plaintiff on April 8, 1999, and

reported a "possible annular ligament tear/possible small disc

herniation" resulting in temporary disability.      Carlson also


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signed a certificate of disability.

           Plaintiff saw Dr. Lawrence Leventhal on April 12, 1999.

Leventhal reviewed the November 1998 MRI and diagnosed a bulging

disc at L4-L5 on the left.   He wrote, "It is medically probable

that the injury on September 15, 1998, caused an annular tear to

the disc at the L4-[L]5 level ***."    "Based on [plaintiff's]

history," Leventhal believed his current disability was a result

of his employment.   On August 16, 2000, Leventhal examined

plaintiff and completed a physician's certificate certifying
plaintiff was disabled for service in the police department.

Leventhal stated the herniated disc could be treated surgically

and there was a 75% to 80% chance plaintiff could return to duty

after six months of rehabilitation, although no guarantees could

be made.

           Plaintiff was requested to see Dr. John Gragnani on

April 18, 2000.   Gragnani wrote plaintiff did not "show signs,

either clinically or radiographically, of any particular changes

that would explain the severe degree of pain he is reporting."

Gragnini read Dr. Hogan's report and commented that plaintiff had

not mentioned playing golf the morning after trying to lift the

suspect into the patrol car.   Gragnini recommended a second MRI

and, after reviewing it, wrote there was nothing that would

explain plaintiff's pain complaints and "[n]o residual impair-

ments or disabilities would be expected as a result of the injury

of 9/15/98."

           On April 24, 2000, the Board's attorney, Charles H.


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Atwell, Jr., wrote plaintiff's attorney, stating that the Board

had designated Leventhal, Harms, Carlson, and Hogan as the

selected physicians.    See 40 ILCS 5/3-115 (West 1998).   On

November 14, 2001, Atwell wrote that Carlson had retired but the

remaining three physicians had provided medical reports.     Atwell

noted that Harms had indicated that plaintiff should be referred

to an occupational-medicine specialist, and as that was

Gragnini's specialty, Atwell suggested that Gragnani be desig-

nated as a selected physician, along with Harms, Hogan, and
Leventhal.

             On May 30, 2000, plaintiff saw Dr. Michael L. Gernant,

who diagnosed low-back pain with a herniated disc and nerve-root

compression.    He wrote, "At this point, I don't think [plaintiff]

is able to perform his duties as a police officer *** concerning

the injury he sustained on 9/15/98."

                       II. THE BOARD'S DECISION

             On May 21, 2003, the Board entered an order and deci-

sion denying plaintiff's request for disability benefits.       Four

members of the Board voted to deny benefits and one member

abstained.    The Board concluded plaintiff was not disabled,

noting it "accords great weight" to Hogan and Gragnini's "de-

tailed opinions."    As an independent reason for denying plain-

tiff's claim, the Board also cited section 3-115 of the Pension

Code (40 ILCS 5/3-115 (West 1998)), which requires that three

physicians the Board selects must certify an applicant is, in

fact, disabled.    The Board found that of the four physicians it


                                 - 5 -
selected, Harms, Hogan, Leventhal, and Gragnini, only Leventhal

and Harms suggested plaintiff was unable to perform his job as a

police officer.

           In an alternative holding, the Board stated that even

if plaintiff had proved he is disabled, he did not establish the

incident on September 15, 1998, was the cause of his alleged

disability.   The Board further noted plaintiff had made no

request in the alternative for a nonduty-disability pension

benefit.
           The Board also remarked that plaintiff "continues to

disdain any surgery which has been recommended by Dr. Leventhal

and Dr. Gernant, who have both expressed a likelihood of 80-85%

success rate, with the ultimate result to return to full service

as a police officer."   While the Board denied it considered

plaintiff's decision to forego surgery in coming to its decision,

it noted that "even the two physicians who have expressed their

opinions that [plaintiff] is disabled from performing full

service have stated that there is a high probability that minor

surgery could relieve [p]laintiff of his alleged discomfort."

           Plaintiff filed a complaint for administrative review,

and the circuit court affirmed.    This appeal followed.

                            III. ANALYSIS

                        A. Standard of Review

           Judicial review of the decision of the Board is gov-

erned by the Administrative Review Law.     735 ILCS 5/3-101 through

3-113 (West 2002).   The factual findings of the administrative


                                - 6 -
agency are considered to be prima facie correct (735 ILCS 5/3-110

(West 2002)) and will be reversed only if against the manifest

weight of the evidence.   Questions of law are reviewed de novo.

Marconi v. Chicago Heights Police Pension Board, 361 Ill. App. 3d

1, 16, 836 N.E.2d 705, 719 (2005).     A mixed question of law and

fact, however, is not reviewed de novo, but under the clearly

erroneous standard.   The clearly-erroneous standard of review is

"between a manifest[-]weight[-]of[-]the[-]evidence standard and a

de novo standard so as to provide some deference to the

[agency's] experience and expertise."    City of Belvidere v.
Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692

N.E.2d 295, 302 (1998).

                          B. Section 3-115

          Plaintiff argues that section 3-115 of the Pension Code

has not been complied with in this case.     Section 3-115 provides:

               "A disability pension shall not be paid

          unless there is filed with the board certi-

          ficates of the police officer's disability,

          subscribed and sworn to by the police officer

          if not under legal disability *** and by the

          police surgeon (if there be one) and 3 prac-

          ticing physicians selected by the board.    The

          board may require other evidence of disability."

          40 ILCS 5/3-115 (West 1998).

The certification requirement is an antifraud provision and

serves the legitimate legislative goal of ensuring the integrity


                               - 7 -
of the pension fund.    Trettenero v. Police Pension Fund of the

City of Aurora, 333 Ill. App. 3d 792, 799, 776 N.E.2d 840, 847

(2002).

            Plaintiff argues that, as a matter of law, the Board

was required to find him disabled because three Board-selected

physicians, Leventhal, Harms, and Carlson, signed certificates of

disability.    In response, the Board argues that Carlson had been

replaced and that plaintiff's claim must accordingly be denied

because only two physicians had certified that plaintiff was

disabled.    That argument was an alternative to the Board's

primary finding that plaintiff was not disabled.    Plaintiff also

argues that Hogan and Gragani, who examined him at the request of

the city's workers' compensation management company, were not

Board-selected physicians because he never stipulated that they

were and because they did not sign certificates of disability.

Plaintiff also argues, for the first time on appeal, that the

Board's rules provide for the selection of only three physicians.

 He supplemented the administrative record with the Board's

rules, which state that the Board "shall designate up to three

(3) physicians" to examine the applicant.

            If section 3-115 were interpreted to require that the

Board's three selected physicians unanimously declare an appli-

cant disabled, one physician's opinion that an applicant was not

disabled would ipso facto defeat a pension claim, thus rendering
section 3-115 a virtual summary-dismissal provision.    Coyne v.
Milan Police Pension Board, 347 Ill. App. 3d 713, 729, 807 N.E.2d


                                - 8 -
1276, 1289 (2004).    (A similar concern arises if section 3-115 is

interpreted to mean that the mere existence of three certificates

of disability automatically deems an applicant disabled, regard-

less of what other medical and nonmedical evidence reveals.)

          "A pension board would have no use for an

          evidentiary hearing in such cases because,

          regardless of the weight of the claimant's

          evidence, and regardless of any credibility

          issues pertaining to the lone dissenting
          physician, the outcome of the case would be

          predetermined by the mere existence of a dis-

          agreement between witnesses."   Coyne, 347
          Ill. App. 3d at 729, 807 N.E.2d at 1289.

The Third District, in Coyne, found the board's summary dismissal

for lack of three certificates to be unconstitutional and re-

versed and remanded the board's denial of benefits, agreeing with

the circuit court that section 3-115 only required three medical

certificates "addressing" the applicant's disability status.

Coyne, 347 Ill. App. 3d at 727-28, 807 N.E.2d at 1288.    The Third

District disagreed with Justice Schmidt's dissenting opinion that

the board could simply appoint a fourth physician to get the

necessary three certificates.   Coyne, 347 Ill. App. 3d at 729,

807 N.E.2d at 1289.

          The Second District, following remand from the supreme

court, has found a board's determination that an applicant was

not disabled to be against the manifest weight of the evidence


                                - 9 -
but nevertheless affirmed the denial of benefits because the

board did not receive three certificates of disability.     The

Second District agreed with Justice Schmidt's dissent.     Under the

clear language of section 3-115, three physicians selected by the

board must furnish certification that the applicant has a dis-

ability preventing him from performing any assigned duty or

duties in the police service.    Wade v. City of North Chicago

Police Pension Board, 359 Ill. App. 3d 224, 236, 833 N.E.2d 427,

437 (2005).    Nothing in the statute, however, precludes the board

from appointing additional physicians to examine the applicant in

an effort to secure the necessary three certificates.     Wade, 359
Ill. App. 3d at 236, 833 N.E.2d at 438.

            The First District disagreed with both the Coyne

majority and with Justice Schmidt's dissent.    Under Coyne, "the

certification requirement is reduced to a mere empty formality--

even three certificates stating that an applicant is not disabled

would satisfy the statute."    (Emphasis in original.)   Marconi,

361 Ill. App. 3d at 23, 836 N.E.2d at 725.    Justice Schmidt's

suggestion that additional physicians be appointed, however, was

viewed by the First District as too extensive a legislative

revision.    "Such attempted judicial interpolations would be in

open contravention to the express language of the statute."

Marconi, 361 Ill. App. 3d at 29, 836 N.E.2d at 729.      In Marconi,

two of the three board-selected physicians certified the plain-

tiff was disabled, as did a fourth physician, who was not se-

lected by the board.    However, because the board's finding of


                                - 10 -
fact that the plaintiff was not disabled was clearly erroneous,

the First District reversed the board's ruling, even though only

two of the selected physicians had filed a certificate of dis-

ability.

           We agree with previous decisions that an applicant

cannot be awarded disability benefits unless three physicians

have filed a certificate of disability.    Daily v. Board of

Trustees of the Police Pension Fund of Springfield, Illinois, 251

Ill. App. 3d 119, 126-27, 621 N.E.2d 986, 991 (1993).    The three

certificates are a precondition to the case going forward, and in

a simple case, may provide an adequate basis for granting (or

denying) a claim.   If three certificates cannot be obtained, the

claim may be summarily dismissed.    Three certificates from board-

selected physicians were obtained in this case, despite the fact

that Carlson had retired.   The presence of three certificates,

however, is not dispositive.    "The board may require other

evidence of disability" in addition to the three certificates.

40 ILCS 5/3-115 (West 1998).    Factual disputes cannot be resolved

by the mechanical counting of certificates but must depend on

findings made by the board.    See Turcol v. Pension Board of
Trustees of the Matteson Police Pension Fund, 214 Ill. 2d 521,

828 N.E.2d 277 (2005) (dismissing appeal and remanding for

appellate court to consider whether board's denial of benefits

may be confirmed on the ground that plaintiff failed to prove his

disability); Wade v. City of North Chicago Police Pension Board,

215 Ill. 2d 620, 828 N.E.2d 282 (2005) (same).


                               - 11 -
           Unanimity among the three physicians selected by the

board is not required.   The Board may, in an appropriate case,

select additional physicians who may file certificates.   We do

not read section 3-115 to prohibit the Board's selection of more

than three physicians to sign certificates, particularly in light

of the language, "[t]he board may require other evidence of

disability" in addition to the three certificates.   40 ILCS 5/3-

115 (West 1998).   Section 3-115 does not contain any formal

procedure for the Board's selection of physicians.   Selection is
left to the Board's discretion, but that discretion may be abused

where the Board chooses "to preselect those doctors whose nega-

tive position on the issue of disability has been firmly estab-

lished."   Marconi, 361 Ill. App. 3d at 27, 836 N.E.2d at 727.
There is no indication the Board's discretion was abused in this

case.   Harms, Carlson, and Leventhal were initially chosen by

plaintiff and presented his point of view.   Hogan and Gragnini

appear to be well-qualified physicians, practicing in the partic-

ular field.

           Certificates of the police officer's disability,

subscribed and sworn to by three practicing physicians, are

necessary before a disability pension is paid, but there is no

such requirement if the pension is not paid.   Rizzo v. Board of
Trustees of the Village of Evergreen Park Police Pension Fund,

338 Ill. App. 3d 490, 494-95, 788 N.E.2d 1196, 1200 (2003);

Daily, 251 Ill. App. 3d at 127, 621 N.E.2d at 991.   A physician

who testifies that a police officer is not disabled cannot be


                              - 12 -
expected to sign a certificate of disability.

          In this case, the physician's certificates reveal only

a part of the picture.   Of the five physicians who were, at one

time or another, designated as Board-selected, two flatly stated

that plaintiff was not disabled.   Two others, Carlson and Harms,

certified that plaintiff was disabled, but their accompanying

records indicate they believed plaintiff's injury was not severe.

 Viewing the totality of the evidence before the Board, we cannot

say that its determination that plaintiff was not disabled is
against the manifest weight of the evidence.    The Board was not

required to find plaintiff disabled simply because three physi-

cians certified that he was.

                         C. Other Arguments

          Plaintiff argues the Board improperly refused to

consider a nonduty-disability pension.   The Board, however,

concluded that plaintiff did not prove the existence of a physi-

cal or mental disability rendering his retirement necessary.

Even if plaintiff had specifically requested a nonduty-disability

pension in the alternative, the Board could not have granted one.

 The fact that the Board noted plaintiff had not requested a non-

duty-disability pension is of no significance here.

          Plaintiff claims he was denied due process when the

Board conducted deliberations in a closed session in contraven-

tion of the Illinois Open Meetings Act (Act) (5 ILCS 120/2 (West

2004)) and the Board's own rules and regulations.    One of the

exceptions to the Act allows the consideration of:


                               - 13 -
               "(4) Evidence or testimony presented

          in open hearing, or in closed hearing where

          specifically authorized by law, to a quasi-

          adjudicative body, as defined in this Act,

          provided that the body prepares and makes

          available for public inspection a written

          decision setting forth its determinative

          reasoning."   5 ILCS 120/2(c)(4) (West 2004).

It would have been better if the Board had explicitly referred to
 this specific subsection, but generally calling attention to the

exception was sufficient.   Henry v. Anderson, 356 Ill. App. 3d
952, 955, 827 N.E.2d 522, 524 (2005).   The Board's rules and

regulations provide that, on motion, the Board may go to closed

session pursuant to an exception set forth under the Act.   The

Board, therefore, did not violate its own rules and regulations

by holding a closed meeting.

          Plaintiff claims he was denied due process because

Atwell, the Board's attorney, acted as a hearing officer and a

prosecutor, attended the closed session, participated in the

Board's deliberations, and prepared the decision and order for

the Board's members signatures, citing Thurow v. Police Pension
Board of the Village of Fox Lake, 180 Ill. App. 3d 683, 536

N.E.2d 155 (1989).   The Board's attorney here cross-examined

witnesses and made objections, but there is no evidence that he

played a role in determining the outcome of the application or

that plaintiff was otherwise denied a fair hearing.


                               - 14 -
            Finally, plaintiff challenges the Board's reference to

his decision to forego surgery.    Here, plaintiff's decision to

forego back surgery was not unreasonable.     There was no evidence

that the surgery would be "minor."      Leventhal gave a 75% to 80%

success rate but added that plaintiff would have to endure six

months of rehabilitation "with no guarantees."     Even so, the

Board specifically stated that it did not take plaintiff's

decision not to undergo surgery into consideration in making its

determination.
                           IV. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN and McCULLOUGH, JJ., concur.




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