                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




   Lambert v. Downers Grove Fire Department Pension Board, 2013 IL App (2d) 110824




Appellate Court            EDWARD LAMBERT, Plaintiff-Appellant, v. THE DOWNERS
Caption                    GROVE FIRE DEPARTMENT PENSION BOARD, Defendant-
                           Appellee.



District & No.             Second District
                           Docket No. 2-11-0824


Filed                      February 21, 2013
Rehearing denied           March 20, 2013


Held                       The denial of plaintiff’s application for a line-of-duty disability pension
(Note: This syllabus       was reversed and the cause was remanded to the pension board with
constitutes no part of     directions to enter an order granting the application, since the board’s
the opinion of the court   decision was against the manifest weight of the evidence, especially when
but has been prepared      plaintiff was found not credible as to matters tangential to the questions
by the Reporter of         at issue, and the medical evidence of plaintiff’s disability that was found
Decisions for the          credible was discounted by the board because of the finding that plaintiff
convenience of the         was not credible.
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 11-MR-183; the
Review                     Hon. Robert G. Gibson, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Barry A. Ketter, of Barry A. Ketter, P.C., of Chicago, for appellant.
Appeal
                           Lance C. Malina and Jacob H. Karaca, both of Klein, Thorpe & Jenkins,
                           Ltd., of Chicago, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justice Jorgensen concurred in the judgment and opinion.
                           Justice McLaren dissented, with opinion.



                                             OPINION

¶1          Plaintiff, Edward Lambert, a firefighter/paramedic employed by the Village of Downers
        Grove, applied for a line-of-duty disability pension from defendant, the Downers Grove Fire
        Department Pension Board (Board). Following a public hearing, the Board denied the request
        for the pension. Lambert then sought administrative review in the circuit court of Du Page
        County. The trial court upheld the Board’s decision, and Lambert now appeals from the trial
        court’s order. We reverse and remand.

¶2                                       I. BACKGROUND
¶3          Lambert was hired as a firefighter by the Village of Downers Grove in March 1997. On
        September 10, 2009, Lambert filed an application with the Board, seeking a line-of-duty
        disability pension because of a right-knee injury that “just is not responding to treatment
        which would allow [him] to return to active duty.” At the public hearing held on March 16,
        2010, Lambert testified that, in September 2005, he injured his right knee during a training
        exercise. He “had a pop” in the knee and felt “excruciating pain.” After going to the hospital,
        he was given a knee brace and was taken off duty for one month. On October 27, 2008, he
        was running on a treadmill during a mandatory fitness program when he had “excruciating
        pain” in his right knee. He told his lieutenant and filled out an accident report. He then
        completed his shift.
¶4          The next day, Lambert saw an orthopedic doctor, Dr. Gluek, and had a magnetic
        resonance imaging (MRI) of his right knee. Gluek recommended “conservative care.”
        Lambert sought a second opinion from Dr. David Mehl, who recommended arthroscopic
        surgery on the right knee, which Lambert underwent in April 2009. He had a second surgery
        on December 22, 2009, during which “debris and scar tissue” were removed.
¶5          After the 2008 injury, Lambert favored his right knee; he limped, and when he stood up
        from a seated position, he had to put all of his weight on his left leg. This caused back pain
        that radiated down his legs and caused tingling and numbness in his feet. An MRI of his back
        revealed bulging discs and a possible hernia. A doctor who examined him for an independent


                                                 -2-
       medical examination (IME) in his workers’ compensation case opined that the leg and foot
       pain was a result of his diabetes. Lambert’s treating physician for diabetes disagreed. Both
       the IME physician and Gluek advised him that he might need a total knee replacement at
       about age 50.
¶6         Lambert testified that he had undergone a functional capacity evaluation (FCE). During
       this evaluation, which he did not describe, he “fully expel[led] effort” to the best of his
       ability and was told to work through the pain that he experienced.
¶7         Lambert stated that he could not squat, kneel, crawl, or climb up or down ladders.
       Walking on stairs was difficult and painful. He was not allowed to carry more than 25
       pounds; he could not carry a hose or an air pack, let alone a person. He still had problems
       with his back and his right foot, which still became numb. He also had neck pain and
       headaches and did not have full movement in his neck.
¶8         Under questioning from the Board members, Lambert testified that he used a treadmill
       or elliptical exercise machine three to four times a month before the October 2008 injury. He
       had experienced knee pain “continuously” since the September 2005 injury; the doctor had
       told him that he would have pain and “would have to deal with it.” Since his December 2009
       surgery, the pain “around the knee on the outside” was fine, but “[i]nside the knee [was] just
       not improving.” He still had difficulty bending, kneeling, and squatting. His doctor described
       the problem as “maltracking,” where the kneecap did not properly slide in its track when the
       knee was bent. His knee locked up, and he experienced pain and could lose his balance. The
       doctor gave him a brace to help stabilize the knee. Lambert did not think that he could “do
       the job of a fireman.” He attended physical therapy three times a week, riding an exercise
       bike, doing basic exercises, and stretching. He weighed 260 pounds, 20 to 30 pounds more
       than when he started with the department. He had been with the department four or five years
       when he was first diagnosed with diabetes; his doctor diagnosed him as “a late onset Type
       1.” He used an insulin pump. He had taken Vicodin but he had stopped because his doctor
       wanted him to stop in order to prevent addiction.
¶9         Lambert had not been released to return to work since his second surgery, and he was not
       working in any capacity at the time of the hearing. He could not do any work around the
       house that required him to squat or get on his knees, nor could he do “any kind of heavy
       work.”
¶ 10       Various incident reports, medical records, IME reports, and FCE reports were entered
       into the record. The three doctors who performed IMEs at the request of the Board all
       concluded that Lambert was disabled for service in the fire department as a firefighter. Dr.
       William Malik diagnosed Lambert as suffering from “significant chondromalacia of the right
       patella” and noted that, while Lambert did “not have a significant patellar grinding test,” he
       did have “diffuse pain in the retropatellar area.” Lambert had failed to significantly improve
       even after “reasonable therapy postoperatively” and various injections. Malik opined that
       Lambert had “reached the point of maximum improvement.” Malik agreed with the July 21,
       2009, FCE that had found Lambert to be able to perform around 85% of the demands of his
       job and found that he “cannot perform the full duties of a firefighter at the present time.” Dr.
       Joseph Thometz found “advanced chondromalacia” and noted that Lambert had “structural
       problems with his knee that are causing pain that would preclude him from returning to his

                                                 -3-
       duties as a fire fighter.” Dr. Terrence Moisan noted that Lambert had undergone surgery,
       “significant physical therapy,” and injections, “with no apparent improvement.” His
       examination of Lambert’s knee revealed “normal range of motion, minimal crepitations, but
       pain over the medial joint line.” Lambert’s strength and gait appeared normal. Based on his
       examination and review of FCE and other evaluations, Moisan opined that, while Lambert
       could safely perform job duties up to the medium and occasionally heavy level, it was
       unlikely that he would return to the “very heavy” level of job duties.
¶ 11       Four FCEs were conducted by METT Therapy Services between July 31 and November
       3, 2009. The percentage of “job demands met” noted in the reports ranged from a low of 66%
       in July to a high of 85% in September, and the percentage of “consistent/valid tests” ranged
       from a high of 97% in August to a low of 83% in November. The FCEs noted that Lambert
       exhibited “pain behaviors of grimacing and grunting,” especially while squatting and also
       while crawling, lifting, and climbing stairs and ladders. The August and September FCEs
       suggested that Lambert would benefit from continued work conditioning “in order to return
       to work full time without restrictions.” The November FCE noted that the 83% consistency
       of effort/validity result “would suggest the client presented with segmental inconsistencies
       during this evaluation resulting in mild self limiting behaviors.” Lambert was still able to
       perform only at the “heavy physical demand level,” while his job was classified at the “very
       heavy physical demand level.” As of the November FCE, Lambert was still “restricted from
       work.”
¶ 12        The Board voted to continue the hearing, as Lambert’s most recent surgery was after all
       of the IMEs and FCEs had been performed. The Board explained that some of the
       information received after the surgery “appears to at least reflect some significant change in
       [Lambert’s] condition for the better.”
¶ 13       The Board reconvened the hearing on September 7, 2010. Lambert submitted additional
       evidence that was made part of the record. Mehl, who had treated Lambert for over a year,
       opined in a May 7, 2010, letter that Lambert “has not made a sufficient recovery to be able
       to return to [sic] a firefighter.” Further, Mehl opined that Lambert “is permanently disabled
       from his job as a firefighter.”
¶ 14       Lambert also underwent an FCE on August 28, 2010, the summary report of which was
       made part of the record. Michael Hornbuckle, a certified work capacity evaluator, reported
       that the overall test findings, combined with clinical observations, suggested both that
       Lambert exerted full physical effort in the test and that Lambert’s “subjective reports of pain
       and associated disability [were] both reasonable and reliable.” After describing his findings
       regarding Lambert’s ability to lift and carry weight, sit, stand, and walk, Hornbuckle
       summarized that Lambert “needs to be a full job match before he can return to work as a
       fireman, and he does not meet the full list of demands for his job at this time.” While
       Lambert had “general tolerable pain levels with everyday activities,” his pain levels increased
       “significantly with right knee flexion, direct pressure to the right knee, and loading of the
       right leg” such that, although he is “very strong,” he “is limited in his abilities due to pain.”
       Hornbuckle felt that Lambert would “have difficulty completing a work-conditioning
       program” at that time but suggested continued functional rehabilitation to help correct some
       noted “biomechanical hip faults” that added “undue stress to the right knee in gait, and have

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       the ability to contribute to his continued right knee dysfunction.” He also recommended
       further discussions regarding pain control to help manage pain, but concluded that “at this
       time [Lambert] is not ready to return to work full time.”
¶ 15       The record also included an August 30, 2010, report by Mehl, who noted that Lambert
       had “significant post-traumatic chondromalacia.” Lambert had received “some mild pain
       relief” from Euflexxa injections given to him in May 2010. Mehl noted “good range of
       motion from 5 degrees to 125 degrees” and “nearly normal” strength, but also noted “severe
       cropitus throughout motion.” He opined that Lambert “is not able to return to work as a
       firefighter and I believe this will be a permanent condition as a result of the injury to his knee
       and subsequent surgeries.” Lambert “will be permanently disabled from work as a
       firefighter” and “is not a candidate for further work conditioning.”
¶ 16       The Board then notified Lambert that, at its March meeting, it had authorized the use of
       a “surveillance data gathering service” to record Lambert’s activities outside his house on
       the morning of August 24, 2010, and had just received a DVD of that surveillance. Although
       the surveillance had been made over approximately one hour, the camera had been turned
       off when Lambert was not seen; the actual recording lasted 27 minutes and 48 seconds. After
       viewing the DVD, Lambert had no objection to its admission, and the Board voted to “enter
       the surveillance evidence into evidence.”
¶ 17       The Board then questioned Lambert regarding the new evidence. Lambert stated that he
       did not take any pain medication on the day of the August 2010 FCE, because the test would
       “not [be] a true evaluation of what my capabilities are.” Lambert’s counsel told the Board
       that Lambert would not be allowed to take one of his prescribed pain medications, Vicodin,
       if he returned to duty. Lambert stated that some days he could get by with taking only
       ibuprofen for pain, but some days he would take up to eight Vicodin. Pain often prevented
       him from going to sleep or staying asleep. During a discussion of Lambert’s physical
       restrictions, the following took place:
                “[BOARD] PRESIDENT LAZZARA: Help me with this one, because you just said
           you can’t kneel, you can’t crawl, but yet you have been sitting in that chair twisting back
           and forth on that right knee. Help me.
                MR. LAMBERT: No, I am twisting on my left knee and I have my right knee on top
           of my foot.
                PRESIDENT LAZZARA: I have been watching you. I have been.
                MR. LAMBERT: So have I, I am not.”
¶ 18       When asked about learning to manage his pain levels, Lambert stated that his doctor told
       him that pain management might help his everyday life but that it would not be sufficient to
       return him to work. He had made adjustments to the way that he walked and had worked on
       “certain aspects” of function rehabilitation of his hip. The Board commented that the August
       2010 FCE noted that Lambert could sit comfortably for only about 30 minutes at a time, and
       the Board asked Lambert if he had driven for more than 30 minutes at a time. Lambert stated
       that he had driven almost two hours to get to the hearing that day. The Board then asked
       Lambert if he drove a large vehicle (he occasionally drove his wife’s Suburban), if his house
       had stairs (14 stairs that he walked up and down 2 to 3 times daily), and if he used a ladder

                                                  -5-
       to do home maintenance (no). After Lambert’s counsel made a short closing statement,
       during which he mentioned, among other things, Lambert’s inability, per the FCE, to lift 100
       pounds and his difficulty climbing a ladder, Lazzara stated, “I have no question that he is
       disabled. What I am questioning is his credibility here.” Lazzara asked Lambert again how
       many times a day he walked up and down the stairs (2 or 3) and how much he weighed
       (“200–”), then stated, “That is what I’m getting at, well over the 100 pounds. That’s what I
       am getting at, the credibility.” Counsel then explained that, in his view, the FCE showed that
       Lambert could move his own body but could not carry the additional weight.
¶ 19       Lambert testified that he had requested an extension to keep up his certification as a
       paramedic but was unsure of the status of that request. Battalion Chief Matt Beyer then
       testified that the extension was not granted; Lambert’s license had expired, and he was no
       longer a paramedic. Because Lambert was hired as a firefighter/paramedic, he could not
       return to his job without the paramedic license.
¶ 20       The Board then unanimously passed a motion to deny Lambert’s pension application for
       lack of disability. In its written findings issued later, the Board noted that the three IME
       doctors whom it had selected and Lambert’s doctor all indicated that Lambert was “unable
       to perform the duties of a Firefighter.” However, while finding the reports from those doctors
       “to be credible,” the Board also found that the findings of disability “were based primarily
       on Firefighter Lambert’s subjective statements of pain to the physicians.” The Board noted
       that the IME doctors also considered the FCEs, and the Board was “not persuaded by
       portions of the FCEs that were based on Firefighter Lambert’s subjective statements of pain
       to the therapists.” The Board found Lambert “not to be a credible witness” as to his inability
       to perform the job of firefighter due to right knee pain; having “witnessed the physical
       position and demeanor” of Lambert during the two days of hearings, the Board found “his
       testimony regarding his level of pain not credible.” Lambert was able to control his pain with
       Vicodin and/or ibuprofen and “could help learn to manage his pain levels on the job.” The
       Board considered the surveillance DVD, which showed Lambert “in his yard walking up
       steps and carrying household objects with little trouble, activities that he has simultaneously
       testified that he has too much pain to perform (i.e., sitting, climbing, lifting and jostling).”
       In addition, the Board considered evidence that Lambert had not properly renewed his
       paramedic certification and that he had driven to the September 7 hearing and “had been
       stuck in traffic for more than an hour, yet claimed an inability to sit long periods of time or
       operate/drive department vehicles.”
¶ 21       Lambert then sought administrative review in the circuit court of Du Page County. After
       considering the briefs and arguments of the parties, the court found that there was “at least
       some evidence in the record to support the [B]oard’s findings and decisions” and upheld the
       Board’s decision denying Lambert’s pension application. Lambert thereafter filed a timely
       notice of appeal.

¶ 22                                       II. ANALYSIS
¶ 23       Lambert first contends that the Board’s decision to deny his application for a line-of-duty
       disability pension was against the manifest weight of the evidence. We agree. A disability
       pension “shall not be paid until disability has been established by the board by examinations

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       of the firefighter at pension fund expense by 3 physicians selected by the board and such
       other evidence as the board deems necessary.” 40 ILCS 5/4-112 (West 2010). In an appeal
       from an administrative agency’s decision, we review the agency’s determination, not that of
       the trial court. Szewczyk v. Board of Fire & Police Commissioners, 2011 IL App (2d)
       100321, ¶ 20. The agency’s factual determinations are held to be prima facie true and correct,
       and we will uphold those determinations unless they are against the manifest weight of the
       evidence. Goodman v. Morton Grove Police Pension Board, 2012 IL App (1st) 111480, ¶ 24.
       A factual finding is against the manifest weight of the evidence when the opposite conclusion
       is clearly apparent. Szewczyk, 2011 IL App (2d) 100321, ¶ 20. We review de novo, as a
       question of law, an agency’s interpretation of a statute or an administrative rule. Id. Finally,
       we apply the “clearly erroneous” standard to mixed questions of law and fact. Id. An
       agency’s decision is clearly erroneous when the reviewing court comes to the definite and
       firm conclusion that the agency has committed an error; this standard provides some
       deference based on the agency’s experience and expertise and falls between the de novo and
       manifest-weight standards of review. Id. In such proceedings, the plaintiff bears the burden
       of proof. Id. If there is evidence of record that supports the agency’s determination, it must
       be affirmed. Roszak v. Kankakee Firefighters’ Pension Board, 376 Ill. App. 3d 130, 138-39
       (2007). “However, if the agency relies on factors that the statute does not intend, fails to
       consider an issue, or the decision is so implausible, the decision may be reversed as arbitrary
       and capricious.” Ellison v. Illinois Racing, 377 Ill. App. 3d 433, 440-41 (2007).
¶ 24        In Roszak, a firefighter filed for a line-of-duty disability pension. All three pension-board-
       appointed physicians found that the plaintiff was disabled or incapable of performing his
       duties as a firefighter. Nonetheless, the pension board found that the plaintiff was not entitled
       to a disability pension because he was not a credible witness. The pension board found that
       the plaintiff was not credible because of his evasive testimony and his lack of candor.
       Specifically, the pension board found that the plaintiff was evasive because he initially
       refused to give a residence address, he refused to state what he was currently earning, and
       he refused to answer questions as to his net worth. The pension board further believed that
       the plaintiff had exacerbated his condition by going on a snorkeling vacation, postponing
       surgery, and failing to see a doctor for months. The pension board rejected the plaintiff’s
       explanation that he had not seen a doctor sooner due to workers’ compensation and
       affordability issues. The pension board concluded that, if the injury were as serious as the
       plaintiff contended, he would have taken reasonable medical steps to promote recovery.
       Roszak, 376 Ill. App. 3d at 137. Further, the pension board discounted the findings of all of
       the doctors who had determined that the plaintiff was disabled, because such findings were
       based on their subjective determinations of what the plaintiff, whom the pension board
       declared not credible, had told them. Specifically, the pension board stated:
            “ ‘[T]he physicians who determined that [the plaintiff] is still disabled, based their
            findings on what the [plaintiff] told them and on subjective determinations. If the
            [plaintiff] was not truthful with this Board, we can assume that he was not truthful with
            the Board’s examining physicians.’ ” Id. at 143.
       After the pension board ruled that the plaintiff was not entitled to a disability pension, the
       trial court affirmed. Id. at 138.

                                                  -7-
¶ 25       The reviewing court then reversed, finding that several of the pension board’s crucial
       findings used to deny the firefighter’s disability were against the manifest weight of the
       evidence. Id. at 139. The reviewing court noted that the pension board found that the plaintiff
       was not credible because he was evasive in responding to questions about where he lived,
       where he worked, what he earned, and his current net worth. The reviewing court found that
       these issues were tangential at best to the issues before the pension board and did not impact
       the plaintiff’s veracity concerning his injury. Id. at 140. The reviewing court found that the
       plaintiff’s “evasiveness” was not wilful obstructionism but rather reflected that he was
       confused or did not understand the pension board’s questions. Id. at 141.
¶ 26       The reviewing court further rejected the pension board’s finding that the plaintiff engaged
       in “symptom magnification.” Id. at 142. The court noted the pension board’s example that
       the plaintiff claimed that he was in constant pain and needed surgery, yet he postponed
       surgery to go on a snorkeling vacation. The reviewing court found that the record actually
       revealed that the plaintiff had postponed surgery due to uncertainty over whether workers’
       compensation would pay for the surgery. Id. Moreover, the plaintiff had tried to promote his
       recovery at home, as he continued his therapy doing various exercises. Additionally, there
       was no evidence supporting the pension board’s assertion that the plaintiff cancelled surgery
       dates to go snorkeling. Id.
¶ 27       The reviewing court further noted that, after the pension board had determined that the
       plaintiff was not credible, it used this determination to discredit all of the medical opinions
       presented at the hearing that indicated that the plaintiff was disabled. The reviewing court
       found that this was improper. Id. at 143. The reviewing court explained that the pension
       board’s doctors’ medical opinions and diagnoses had been supported by the medical testing,
       e.g., their physical examinations of the plaintiff and the results of the MRI. The reviewing
       court additionally noted the assumption that patients tell their doctors their true conditions
       and have no motive to falsify. Id. at 143-44 (citing Greinke v. Chicago City Ry. Co., 234 Ill.
       564, 570-71 (1908)). Furthermore, the reviewing court explained that, as it had already
       determined that the pension board’s assessment of the plaintiff’s credibility was against the
       manifest weight of the evidence, it was error for the pension board to discount the doctors’
       reports based on the plaintiff’s purportedly suspect credibility. Id. at 144.
¶ 28       Finally, the reviewing court found that the pension board had mischaracterized some of
       the doctors’ opinions to suggest that the plaintiff was no longer disabled. Id. As the
       reviewing court found that the pension board’s decision was against the manifest weight of
       the evidence, it reversed the lower court’s decision and remanded with directions that the
       pension board enter an order granting the plaintiff’s application for line-of-duty benefits and
       any other relief to which he was entitled. Id. at 148-49.
¶ 29       We believe that, as in Roszak, the Board’s decision here was against the manifest weight
       of the evidence because (1) it found that Lambert was not credible based on matters that were
       tangential at best to the issues that were before the Board, and (2) although the Board found
       “credible” the medical evidence that indicated Lambert was disabled, it then went on to
       discount all of the evidence based on its finding that Lambert was not credible. We address
       in turn each of the Board’s findings as to Lambert’s credibility.
¶ 30       First, the Board found that Lambert was not credible based on the physical position and

                                                -8-
       demeanor that he demonstrated at the hearing. Specifically, the Board found that Lambert’s
       testimony regarding his level of pain was not credible based on his apparent ability to sit
       without pain. Lazzara also found that at the hearing Lambert was able to twist back and forth
       on his right knee without any problems (although Lambert strongly disputed that assessment,
       claiming that he was actually twisting back and forth on his uninjured left knee). We note
       that Lambert never testified that he could not sit. Rather, he repeatedly testified that he could
       not kneel, squat, crawl, climb a ladder, or carry heavy loads. Indeed, Lambert testified that,
       when playing with his children, he would sit rather than kneel or crawl. We note that in the
       August 2010 FCE there is a reference that Lambert was not able to sit for more than 30
       minutes at any one time. There is no indication in the FCE, however, that Lambert self-
       reported that he could not sit or drive for a prolonged time. Instead, the FCE’s finding that
       Lambert could sit only for a certain amount of time was based on the examiners’
       observations of what they believed he could do. We do not agree with the Board’s apparent
       logic that, because he could sit better than the most recent FCE indicated that he could, he
       necessarily could do everything else (kneel, squat, crawl, climb, or carry) better to the point
       that he was not disabled. Moreover, even if Lambert was able to twist on his right knee, it
       did not mean that he could kneel, squat, crawl, climb, or carry heavy objects, all things that
       the medical examiners consistently said that he could not do.
¶ 31       Further, we note that at the hearing Lambert indicated that he agreed with the most recent
       FCE, particularly with its conclusion that he was not able to continue to work as a firefighter
       due to his disability. Lambert’s agreement with the FCE is the only basis to say that his
       testimony regarding his ability to sit was inconsistent. We believe that this one small point
       in the record is insufficient to undermine the entirety of Lambert’s testimony and all of the
       other evidence that indicated Lambert was disabled.
¶ 32       Second, the Board rejected Lambert’s testimony that he could not work as a firefighter
       due to his knee pain because Lambert had testified that he could control his knee pain with
       Vicodin and ibuprofen. However, the record reveals that Lambert was not allowed to take
       Vicodin while he was working. Thus, whether Lambert was able to control his pain while he
       was not working was not relevant to the issue before the Board.1
¶ 33       Third, the Board found that the most recent FCE undermined Lambert’s testimony that
       he could not manage his pain levels on the job. To support its finding, the Board took
       language from the August 2010 FCE out of context. The complete sentence upon which the
       Board partially relied states: “Further discussions regarding pain control could help him learn
       to manage his pain levels, but at this time he is not ready to return to work full time.”
       (Emphasis added.) Thus, despite the Board’s conclusion to the contrary, the most recent FCE


               1
                 We note that the dissent suggests that Lambert provided contradictory testimony regarding
       his use of Vicodin for pain control. At the March 16 hearing, Lambert testified that he was not taking
       Vicodin because his doctor wanted him to stop taking it in order to avoid addiction. At the
       September 7 hearing, Lambert testified that he would take up to eight Vicodin on some days in order
       to control his pain. We do not believe that Lambert’s testimony is inconsistent. A reasonable
       inference from his testimony is that he attempted to stop taking Vicodin, but due to his continued
       pain, he had to keep taking it.

                                                    -9-
       does not contradict Lambert’s testimony.2
¶ 34        Fourth, the Board found that Lambert was not credible because of his failure to renew his
       paramedic certification. The limited number of extensions he sought to renew his
       certification arguably showed that he was not working toward improvement and
       reemployment. Even so, this evidence was minor in light of all the other evidence that
       indicated Lambert was unable to work as a firefighter/paramedic due to his disability.
¶ 35        Fifth, the Board found that a surveillance recording taken of Lambert doing various
       projects around his home undermined his credibility that he was disabled. We note that the
       surveillance DVD was not made part of the record. Ordinarily, the absence of such evidence
       in the record would be construed against the appellant, Lambert. See Foutch v. O’Bryant, 99
       Ill. 2d 389, 391-92 (1984) (explaining that any doubts that might arise from the
       incompleteness of the record will be resolved against the appellant). However, here it is not
       appropriate to construe the incomplete record against Lambert, because it was the Board’s
       burden to make the DVD part of the record before the trial court if it wished to rely on it to
       support its findings. Specifically, section 3-108(b) of the Administrative Review Law (735
       ILCS 5/3-108(b) (West 2010)) provides that it is the administrative agency’s burden to
       present the court of review with the entire record of proceedings, including the evidence it
       considered. See also Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726,
       733 (1994) (it is the administrative agency’s duty to provide the trial court on administrative
       review with a sufficiently complete record of the proceedings so that the trial court can
       properly perform its judicial review function). As the Board did not introduce the DVD into
       the record at the trial court, the DVD did not become part of the record on appeal. Thus, the
       missing DVD should not be held against Lambert, who never had it in his control or
       possession.
¶ 36        Moreover, as it was the Board’s obligation to submit the DVD, we cannot presume in its
       favor that whatever was on it was sufficient to support its credibility findings. This is
       particularly true since counsel for the Board represented at oral argument that “any part of
       the video that was relied on is in the transcript of the hearing before the Pension Board.” See
       People v. Banks, 378 Ill. App. 3d 856, 865-66 (2007) (absence of videotape from record did
       not render record incomplete where videotape did not include any evidence not already
       appearing in the record). In its findings, the Board stated that the DVD showed Lambert “in
       his yard walking up steps and carrying household objects with little trouble, activities that
       he has simultaneously testified that he has too much pain to perform (i.e., sitting, climbing,
       lifting and jostling).” The Board made no finding as to whether Lambert appeared to be in
       pain. We also note that the Board did not question Lambert whether he was on pain


               2
                 The dissent also asserts that the November 2009 FCE supports the Board’s questioning of
       Lambert’s credibility, because that report indicated that Lambert gave only 83% effort during the
       examination, which suggested that he was engaging “in mild self limiting behaviors.” However, as
       Lambert submitted to four other FCEs and all of those indicated that he gave maximum effort, we
       believe that the November 2009 FCE, to the extent that it questions Lambert’s effort, is an anomaly.
       We also note that the Board did not cite the November 2009 FCE as a reason to reject Lambert’s
       credibility.

                                                  -10-
       medication at the time the video was taken. Overall, we find that Lambert’s testimony and
       what the Board observed on the DVD are not inconsistent. Lambert never testified that he
       could not walk up steps. He testified that he could not climb up a ladder. Lambert also did
       not testify that he could not carry household objects. He testified that he could not carry
       heavy objects, such as another person down a ladder, something he would be required to be
       able to do if he were to continue working as a firefighter. Accordingly, in the absence of the
       DVD, we cannot find the described actions to be inconsistent with Lambert’s testimony or
       to otherwise undermine his credibility.
¶ 37       Finally, the Board found that Lambert’s testimony that he had driven two hours to the
       hearing conflicted with his testimony that he could not sit for long periods of time or operate
       a department vehicle. Again, Lambert never testified that he could not sit. He also did not
       testify that he could not drive a vehicle. As noted above, there was a reference in the August
       2010 FCE that Lambert could not sit for a long period of time. The FCE also indicated that
       Lambert could not drive a vehicle for a long period of time. Lambert agreed with the
       conclusions of the FCE. Even if we were to find that Lambert’s testimony conflicted with
       these parts of the FCE, however, we believe that it is a small point in relation to the
       overwhelming evidence that Lambert could not kneel, squat, crawl, or use a ladder, actions
       that were necessary for him to do in order to work as a firefighter.
¶ 38       The Board used its finding that Lambert was not credible to discount all of the medical
       evidence that indicated that Lambert was not able to continue to work as a firefighter. As in
       Roszak, this determination was erroneous. See Roszak, 376 Ill. App. 3d at 144. The Board’s
       doctors’ medical opinions and diagnoses were supported by their physical examinations of
       Lambert. The doctors’ observations and diagnoses themselves constituted objective evidence
       of Lambert’s pain. See Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit
       Fund, 234 Ill. 2d 446, 466 (2009). Accordingly, the Board’s decision to dismiss the objective
       findings of its appointed doctors was against the manifest weight of the evidence. Roszak,
       376 Ill. App. 3d at 144.
¶ 39       The underlying premise of the dissent is that, once the Board made a determination as
       to Lambert’s credibility, the Board successfully prevented this court from conducting any
       review of its decision. However, that is not the law of our state. See id. at 139; see also
       People v. Drwal, 27 Ill. 2d 184, 188-89 (1963) (a conviction that is based on the
       determination of the credibility of the witnesses will be set aside if necessary to prevent an
       apparent injustice). Indeed, such a law would be contrary to this court’s overriding concern
       to ensure that justice be done. See McCloud v. Rodriguez, 304 Ill. App. 3d 652, 658 (1999)
       (court’s duty is to ensure that justice is rendered to every party).
¶ 40       The dissent is also based on the false premise that, if there is any evidence in the record
       that supports the Board’s decision, regardless of how minuscule, then the Board’s decision
       must be affirmed. Although there is case law that would seemingly support the dissent’s
       premise (see Ellison, 377 Ill. App. 3d at 440), a complete review of the applicable law
       reveals that an agency’s decision will nonetheless be reversed if it is implausible (see id. at
       440-41). Thus, contrary to the dissent’s insistence, an agency’s decision that is supported by
       some evidence, but is against the manifest weight of the evidence, cannot stand. See Roszak,
       376 Ill. App. 3d at 144.

                                                -11-
¶ 41        In determining that the Board’s decision was against the manifest weight of the evidence,
       we find the Board’s reliance on People ex rel. Ulrich v. Board of Trustees of Firemen’s
       Pension Fund, 344 Ill. App. 210 (1951), to be improper. In Ulrich, this court issued only an
       abstract opinion, which cannot be relied upon as precedent. See Schusse v. Pace Suburban
       Bus Division of the Regional Transportation Authority, 334 Ill. App. 3d 960, 968 n.1 (2002).
       Further, we note that the Board cites no other Illinois case where a board’s decision to reject
       the vast majority of the medical evidence and deny disability benefits has not been found to
       be against the manifest weight of the evidence. Our research reveals instead that, in such a
       situation, our courts have consistently reversed the board’s decision. See Kouzoukas, 234 Ill.
       2d at 467 (every medical professional who examined the plaintiff found that she suffered
       pain as a result of a lower back strain and that the pain, in turn, prevented the plaintiff from
       returning to work as a full-duty police officer); Roszak, 376 Ill. App. 3d at 135 (all three
       pension board-appointed physicians found that the plaintiff was disabled or incapable of
       performing his duties as a firefighter); Bowlin v. Murphysboro Firefighters Pension Board
       of Trustees, 368 Ill. App. 3d 205, 212 (2006) (pension board relied on only one doctor’s
       opinion over the opinions of five others); Thigpen v. Retirement Board of Firemen’s Annuity
       & Benefit Fund, 317 Ill. App. 3d 1010, 1014-16 (2000) (only physician selected by the board
       found that the plaintiff could not return to firefighting work); Sullivan v. Retirement Board
       of Firemen’s Annuity & Benefit Fund, 267 Ill. App. 3d 965, 971 (1994) (one doctor who
       found the plaintiff was not disabled misstated evidence in reaching that conclusion); Zien v.
       Retirement Board of the Firemen’s Annuity & Benefit Fund, 236 Ill. App. 3d 499, 511 (1992)
       (all of the medical personnel who had evaluated the plaintiff’s condition were in agreement
       that the plaintiff’s disability was permanent and would prevent him from resuming his
       employment as a paramedic).
¶ 42        We also reject the Board’s argument that Lambert is asking this court to consider
       additional evidence that was not considered by the Board. All of the evidence that Lambert
       asks us to consider was available for the Board’s consideration. This evidence was relied
       upon by the Board-appointed doctors, all of whom determined that Lambert was not
       physically able to continue working as a firefighter. Lambert is essentially asking this court
       to consider the medical evidence to counter the Board’s determination that he did not present
       any credible evidence as to his physical disability. However, as we have already determined
       that the Board’s assessment of Lambert’s credibility (and hence the credibility of the doctors
       who relied on the information that Lambert provided them) was against the manifest weight
       of the evidence, we need not dwell on the medical evidence further.
¶ 43        Finally, based on our resolution of Lambert’s first contention on appeal, we need not
       consider his second contention, that the trial court erred in considering descriptions of the
       surveillance recording as demonstrative evidence.
¶ 44        For the foregoing reasons, the decisions of the circuit court of Du Page County and the
       Downers Grove Fire Department Pension Board are reversed and the case is remanded to the
       Board with directions to enter an order granting the application for a line-of-duty disability
       pension and any other relief to which Lambert is entitled.

¶ 45      Reversed and remanded.

                                                -12-
¶ 46       JUSTICE McLAREN, dissenting.
¶ 47       Conspicuously absent from the majority’s analysis of a case that rests almost exclusively
       on the issue of credibility is any standard of appellate review as regards credibility. Also
       missing from the majority opinion is any real analysis regarding the import of the missing
       DVD. The failure to properly address these issues results in a judgment from which I must
       dissent.

¶ 48                                        CREDIBILITY
¶ 49       The Board, as the finder of fact responsible for overseeing testimony, makes credibility
       determinations and assigns weight to the testimony and other evidence; we do not weigh the
       evidence or substitute our judgment for that of the Board. See Goodman v. Morton Grove
       Police Pension Board, 2012 IL App (1st) 111480, ¶ 25. The trier of fact, by virtue of its
       ability to actually observe the conduct and demeanor of witnesses, is in the best position to
       make credibility determinations. See In re Marriage of Berberet, 2012 IL App (4th) 110749,
       ¶ 56. A credibility determination by a pension board will often be dispositive. Mingus v.
       Board of Trustees of Police Pension Fund, 2011 IL App (3d) 110098, ¶ 15. If the record
       contains evidence that supports an agency’s decision, it should be affirmed. Payne v.
       Retirement Board of the Firemen’s Annuity & Benefit Fund, 2012 IL App (1st) 112435, ¶ 43.
¶ 50       The Board made specific findings as to credibility, and evidence in the record supports
       the Board’s questioning of Lambert’s credibility regarding his claimed level of pain and his
       inability to perform his job as a firefighter because of that pain. While most of the FCEs did
       not question Lambert’s effort during the evaluations, the November 2009 FCE noted that
       Lambert’s 83% consistency of effort/validity suggested that Lambert “presented with
       segmental inconsistencies during this evaluation resulting in mild self limiting behaviors.”
       During the hearing, Board President Lazzara questioned Lambert about his “twisting back
       and forth on that right knee” while Lambert claimed that he could not kneel or crawl; though
       Lambert denied doing so, Lazzara said that he had seen it. Lambert also testified that he had
       driven two hours to attend the September hearing, while the most recent FCE noted that
       Lambert could sit comfortably for only about 30 minutes at a time.3 In its findings, the Board
       also stated that its review of the surveillance DVD showed Lambert “walking up stairs and
       carrying household objects with little trouble, activities that he has simultaneously testified
       that he has too much pain to perform (i.e., sitting, climbing, lifting and jostling).”
¶ 51       We cannot substitute our judgment for that of the Board regarding Lambert’s credibility,
       nor can we ascribe weight to that lack of credibility any differently than did the Board. Yet


               3
                Lambert argues that there were no questions addressing what type of vehicle he drove,
       whether he took breaks during the drive, and how long he drove at one sitting; thus, “the Board
       draws a conclusion unsupported by evidence based upon conjecture and speculation that he drove
       for two (2) hours non-stop.” However, such questions could have been asked by Lambert’s counsel,
       or Lambert could have provided such answers on his own when he was asked by the Board about
       the drive. The conclusion that Lambert drove for two straight hours is not unsupported by Lambert’s
       statement that he had driven almost two hours to get to the hearing that day.

                                                  -13-
       the majority does just that, tossing in some factual inaccuracies along the way, in order to
       reverse the Board’s decision. The majority believes that the matters upon which the Board
       found that Lambert lacked credibility were “tangential at best to the issues that were before
       the Board”4 and that the Board “went on to discount all of the evidence based on its finding
       that Lambert was not credible.” Supra ¶ 29. To the Board’s finding that it “witnessed the
       physical position and demeanor of Firefighter Lambert throughout the two public hearings,
       finding his testimony regarding his level of pain not credible,” the majority counters:
           “We do not agree with the Board’s apparent logic that, because he could sit better than
           the most recent FCE indicated that he could, he necessarily could do everything else
           (kneel, squat, crawl, climb, or carry) better to the point that he was not disabled.
           Moreover, even if Lambert was able to twist on his right knee, it did not mean that he
           could kneel, squat, crawl, climb, or carry heavy objects, all things that the medical
           examiners consistently said that he could not do.” Supra ¶ 30.
¶ 52       Lambert’s testimony that he had taken Vicodin but was weaned off the medication to
       prevent addiction (March 16) and that on some days he would take up to eight Vicodin
       (September 7) are found not to be “inconsistent”; the majority finds that a “reasonable
       inference from his testimony is that he attempted to stop taking Vicodin, but due to his
       continued pain, he had to keep taking it.” Supra ¶ 32 n.1. Evidence in the November 2009
       FCE that Lambert gave only 83% effort is discounted by the majority, “to the extent that it
       questions Lambert’s effort,” as “an anomaly.” Supra ¶ 32 n.2. The Board found that Lambert
       was “stuck in traffic for more than an hour, yet claimed an inability to sit long periods of
       time”; the majority depreciates this by stating that the FCE finding that noted Lambert’s
       inability to sit for more than 30 minutes “was based on the examiners’ observations of what
       they believed he could do” and that “[t]here is no indication in the FCE, however, that
       Lambert self-reported that he could not sit or drive for a prolonged time.” Supra ¶ 30.
       Lambert’s agreement with the findings contained in the FCE, including the inability to sit for
       more than 30 minutes, is “one small point,” according to the majority. Supra ¶ 31. The
       majority chastises the Board for “partially” relying on language from the August 2010 FCE,
       regarding Lambert learning to manage pain, that was allegedly taken “out of context” (supra
       ¶ 33) but fails to acknowledge the other evidence upon which the Board “partially” relied for
       this finding. Evidence that Lambert did not renew his paramedic certification is termed
       “minor.” Supra ¶ 34. While noting that Lambert had testified that walking on stairs was
       “difficult and painful” (supra ¶ 7), the majority dismisses the Board’s finding that the DVD
       showed Lambert “ ‘walking up steps *** with little trouble, *** [which] he has
       simultaneously testified that he has too much pain to perform’ ” (supra ¶ 20), by noting that


               4
                The majority obtained the phrase “tangential at best” from Roszak, where the court
       addressed the board’s findings regarding the claimant’s credibility arising from “questions about
       where he lived, where he worked, what he earned, and his current net worth.” Roszak, 376 Ill. App.
       3d at 140. The Board here questioned Lambert’s credibility regarding his level of pain and inability
       to perform his job, based on his testimony and his physical position and demeanor during the
       hearing. These are hardly the “tangential” issues addressed in Roszak, and the application of that
       phrase to this case is inappropriate and inaccurate.

                                                  -14-
       the Board “made no finding as to whether Lambert appeared to be in pain” and “did not
       question Lambert whether he was on pain medication at the time the surveillance video was
       taken.” Supra ¶ 36. Every Board finding is weighed; every conclusion is dissected; every
       basis that supports the Board’s decision is minimized. What is any of this other than a naked
       attempt to discount evidence that supports the Board’s decision, reweigh the evidence, and
       substitute the majority’s judgment for that of the Board?
¶ 53       The majority’s reweighing of the evidence is also peppered with inaccuracies regarding
       the evidence actually in the record with the injection of its own realities. The majority states:
       “Specifically, the Board found that Lambert’s testimony regarding his level of pain was not
       credible based on his apparent ability to sit without pain.” Supra ¶ 30. However, Board
       finding No. 34 states that the finding that Lambert’s testimony regarding his level of pain
       was not credible was based on Lambert’s “physical position and demeanor *** throughout
       the two public hearings.” No mention of Lambert’s sitting is made until finding No. 39,
       which deals with Lambert’s “being stuck in traffic for more than one hour” in his SUV
       despite a claimed “inability to sit long periods of time or operate/drive department vehicles.”
       The majority also brings up Lazzara’s conversation with Lambert regarding the twisting of
       his knee in the supposed context of his not being able to sit (“We note that Lambert never
       testified that he could not sit.” Supra ¶ 30). However, I note that Lazzara did not raise this
       question in the context of Lambert’s ability to sit: “ ‘[BOARD] PRESIDENT LAZZARA:
       Help me with this one, because you just said you can’t kneel, you can’t crawl, but yet you
       have been sitting in that chair twisting back and forth on that right knee. Help me.’ ” Supra
       ¶ 17.

¶ 54                                       MISSING DVD
¶ 55       Lambert provided this court with a record that failed to include the DVD of surveillance
       video taken on August 24, 2010. The majority similarly fails to provide a logical analysis of
       the implications of the missing DVD. The appellant bears the burden of presenting a
       sufficiently complete record. In re Marriage of Holtorf, 397 Ill. App. 3d 805, 811 (2010).
       While acknowledging that any doubts arising from the incompleteness of the record is to be
       resolved against the appellant (supra ¶ 35), the majority proceeds not only to fail to resolve
       doubts from the incompleteness of the record against Lambert but to resolve such doubts
       against the Board, the appellee. Because the majority fails to properly apply these basic
       tenets of appellate review, the majority’s discussion of the DVD evidence crumbles.
¶ 56       The majority is correct that it was the Board’s burden to present the court of review with
       the entire record of proceedings, including the evidence it considered. See supra ¶ 35.
       However, I must point out certain flaws in the majority’s description of the Board’s burden.
       The burden to include the DVD in the record existed not only, as the majority states, “if it
       [(the Board)] wished to rely on it to support its findings.” Supra ¶ 35. An administrative
       agency does not get to pick and choose which evidence to include; can it leave out portions
       of the record that it wishes to ignore? Further, the Board was not required to “introduce the
       DVD into the record at the trial court.” Supra ¶ 35. The DVD was introduced into evidence
       at the administrative hearing. The Board was required to include the DVD as part of “the
       entire record of proceedings under review, including such evidence as may have been heard

                                                 -15-
       by it and the findings and decisions made by it.” 735 ILCS 5/3-108 (West 2010).
¶ 57        The majority continues that, since the DVD did not become part of the record on appeal,
       “the missing DVD should not be held against Lambert, who never had it in his control or
       possession.” Supra ¶ 35. However, Lambert forfeited the issue of the missing DVD at the
       administrative review in the trial court. Lambert filed (and the trial court granted) an agreed
       motion to amend the administrative record, in which he sought to include in the record two
       missing pages of medical reports (one of which “has not been located”); the “addition of
       these pages will give the Court a full and complete record.” (Emphasis added.) Thus, not
       only did Lambert not object in the trial court that the record was incomplete without the
       DVD; when he was granted the opportunity to amend the record with evidence that had been
       left out, he chose not to seek the inclusion of the DVD. According to Lambert, the record was
       “full and complete” even in the absence of the DVD. Apparently, the absence of the DVD
       did not prevent the trial court from considering the full and complete record of the
       administrative hearing, as Lambert addressed the alleged contents of the DVD in his written
       briefs and his oral arguments to the trial court.5
¶ 58        The Board was obligated to provide to the trial court the entire record of proceedings
       under review. It failed to do so. Lambert was obligated to object in the trial court to an
       incomplete record; however, he and the Board agreed that the inclusion of missing pages
       created a full and complete record for the trial court. Issues not raised in the trial court are
       deemed forfeited and may not be raised for the first time on appeal. Martinez v. River Park
       Place, LLC, 2012 IL App (1st) 111478, ¶ 29. Lambert was obligated, as appellant, to present
       this court with an adequate record on appeal. Holtorf, 397 Ill. App. 3d at 811. He failed to
       do so. Under long-established precedent (Foutch was decided in 1984), this court should
       resolve any doubts arising from the incompleteness of the record against Lambert. The
       majority has failed to do so.
¶ 59        The majority cryptically asserts that it cannot presume in the Board’s favor that whatever
       was on the DVD was “sufficient to support its credibility findings,”6 particularly because
       “counsel for the Board represented at oral argument that ‘any part of the video that was relied
       on is in the transcript of the hearing before the Pension Board.’ ” (Emphasis added.) Supra
       ¶ 36. The majority attempts to support this conclusion by citing to Banks, 378 Ill. App. 3d
       at 865-66, for the proposition that the “absence of videotape from record did not render
       record incomplete where videotape did not include any evidence not already appearing in
       the record.” (Emphasis added.) Supra ¶ 36. However, the majority then fails to cite to any
       description of the contents of the DVD contained in the transcript of the hearing before the
       Board or to any other evidence regarding those contents. This is understandable, as there was
       no transcript from the hearing before the Board or any other evidence regarding what was


              5
                According to counsel, Lambert was shown “riding around on a sitting lawn mower holding
       his kid and occasionally doing a little walking.”
              6
                I must also point out that “whatever was on the DVD” was not the only evidence that the
       Board relied on in making its credibility findings; thus, the contents of the DVD need not be
       “sufficient,” on their own, to support the Board’s credibility findings.

                                                -16-
       shown on the DVD. Instead, the majority quotes from the Board’s finding (No. 38) regarding
       the DVD’s contents. See supra ¶ 36 (“In its findings, the Board stated that the DVD showed
       Lambert ‘in his yard walking up steps and carrying household objects with little trouble,
       activities that he has simultaneously testified that he has too much pain to perform (i.e.,
       sitting, climbing, lifting and jostling.’ ”). (Emphasis added.) The majority does not explain
       how or why it can equate alleged on-the-record testimony or other evidence regarding the
       DVD contents with the Board’s later finding; it merely makes the leap. In essence, the
       majority attempts to discredit the Board’s finding regarding the surveillance DVD with the
       Board’s finding regarding the surveillance DVD.
¶ 60        Further, the majority’s reliance on Banks is misguided and flawed. The defendant in
       Banks argued that the loss of the videotape of his traffic stop “alone, with no other showing,
       renders the record incomplete for meaningful review on appeal and entitles him to a new
       trial.” Banks, 378 Ill. App. 3d at 865. This court disagreed, finding that the defendant had not
       sustained his burden of demonstrating that he was not at fault for failing to preserve the tape
       and that the tape was material to his contentions on appeal. Id. at 870. We found that the
       defendant failed to “articulate what the videotape would show” and failed “to suggest that
       the videotape was exculpatory or contradictory of any other evidence presented at trial” such
       that he failed to demonstrate a colorable need for the videotape. Id. at 866. Therefore, we
       addressed the issues on appeal and affirmed the trial court. Here, Lambert does not argue that
       the missing DVD prevents this court from giving a meaningful review on appeal, and
       apparently the majority agrees. In fact, the majority not only analyzes the content of the DVD
       without the benefit of actually seeing the DVD or any other actual evidence of what the DVD
       shows, but actually draws from the nonexistent evidence inferences in favor of Lambert (who
       failed to sustain his burden of providing a complete record on appeal) on the issue of
       credibility in order to reverse the decision below. The majority corrupts the long-standing
       and well-established rule from Foutch and stands the rule on its head; instead of presuming
       support for the judgment due to an incomplete record, the majority does exactly the opposite.
       Further, the majority goes further than even the defendant in Banks, who argued that the
       remedy for the missing videotape was a new trial, not a finding of not guilty. Here, the
       majority does not merely vacate the trial court’s judgment and remand the case so that a
       sufficient record might be assembled and actually reviewed in the trial court; instead, it
       outright reverses the Board’s decision and orders the granting of Lambert’s application for
       a line-of-duty disability pension.
¶ 61        Lambert complains in his brief that the trial court “never actually viewed the video, but
       ruled it a valid basis for the Board’s decision.” The majority here commits the same error of
       using nonexistent “evidence” to support its ruling but compounds the error by using it to
       reverse the decision below. Lest we forget, it is not the function of this court to scour the
       record to find a reason for reversal. In re G.W., 357 Ill. App. 3d 1058, 1061 (2005). It is even
       less so the function of this court to search outside the record for a reason to reverse.
¶ 62        Journalist Ron Suskind quoted an unnamed aide to President George W. Bush as saying,
       “ ‘when we act, we create our own reality.’ ” Ron Suskind, Faith, Certainty and the
       Presidency of George W. Bush, N.Y. Times Magazine (Oct. 17, 2004). The majority here
       creates no less.

                                                -17-
