                                                               SIXTH DIVISION
                                                               June 30, 2010




No. 1-09-1557

ROBERTA KRAMARSKI,                                              )   Appeal from
                                                                )   the Circuit Court
       Plaintiff-Appellant and Cross-Appellee,                  )   of Cook County
                                                                )
                v.                                              )
                                                                )   No. 08 CH 00553
THE BOARD OF TRUSTEES OF THE VILLAGE OF                         )
ORLAND PARK POLICE PENSION FUND,                                )
                                                                )   Honorable Mary K. Rochford,
       Defendant-Appellee and Cross-Appellant.                  )   Judge Presiding.



       PRESIDING JUSTICE CAHILL delivered the opinion of the court:

       Plaintiff, Roberta Kramarski, appeals the judgment of the trial court affirming the Village

of Orland Park Police Pension Fund Board of Trustees (Board). The Board denied her

application for a line-of-duty disability pension under section 3-114.1 of the Illinois Pension Code

(Code) (40 ILCS 5/3-114.1 (West 2002)). She contends that the Board’s decision is against the

manifest weight of the evidence. She argues that the evidence established she was injured in the

line of duty and is disabled as a result. She also contends that she did not receive a fair and

impartial hearing because two pension board members should have recused themselves.

       The Board cross-appeals the trial court’s reversal of the Board’ denial of a not-on-duty

disability pension under section 3-114.2 of the Code (40 ILCS 5/3-114.2 (West 2002)). We

confirm the decisions of the Board.
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        On January 20, 2003, plaintiff filed an application with the Board for a line-of-duty

disability pension, or alternatively, a not-on-duty disability pension under sections 3-114.1 and 3-

114.2 of the Code. 40 ILCS 5/3-114.1, 3-114.2 (West 2002). The Board held four hearings on

her application.

        Plaintiff filed a motion to recuse Board members Dargan and Bianchi. The motion was

argued on July 11, 2007. Plaintiff alleged that because Bianchi was named in the pleadings in an

earlier sexual harassment lawsuit filed by plaintiff against the Village of Orland Park (Village), he

would be biased against plaintiff. While no specific allegations were directed at Dargan in the

earlier lawsuit, plaintiff alleged that he was one of the officers who created a hostile work

environment for her. Plaintiff’s counsel stated at the hearing that the lawsuit had been settled.

Neither the Village nor Bianchi admitted liability and Bianchi paid no monetary damages.

Counsel did not know if Bianchi was ever disciplined. Bianchi and Dargan declined to recuse

themselves.

        The Board reconvened on August 27, 2007. A fifth Board member, Nash, was added to

the administrative panel at plaintiff’s request.

        Plaintiff testified that she was appointed as an officer with the Orland Park police

department in May 1996. On October 17, 1996, she underwent police baton training with 8 to 10

other officers under the instruction of Officers William Kinsella and Edward Hozzian. Hozzian

acted as an attacker during the training while plaintiff defended herself with a foam training baton.

She testified that Hozzian struck her in the face with his fists and feet, injuring her eye and nose

and causing her head to snap back multiple times during a two-minute drill. After the drill,

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plaintiff felt intense shooting pain in her neck. She also felt tired and stiff. Plaintiff called in sick

for her shift that night, explaining that she had not recovered from the training. She stated that

she had never felt this type of neck pain before. She subsequently completed her training and the

18-month probationary period for new officers.

        Plaintiff further testified that she sought medical treatment for her injuries on November

11, 1996, with Dr. J.E. Rocke because she was dropping things and had difficulty performing her

duties. She filled out an injury report and worker’s compensation claim on December 6, 1996.

She was referred to Palos Primary Care Center. The Center released her to return to work with a

light duty restriction.

        Plaintiff testified that she sought treatment over the next three years from a variety of

doctors to reduce the physical symptoms caused by her injuries. She underwent various

examinations, physical therapy, trigger point injections and a facet block procedure. In November

1999, she underwent cervical fusion surgery because of severe pain.

        Plaintiff testified that she continues to experience excruciating pain and stiffness in her

neck and weakness in her left arm. She continues to receive treatment for her physical injuries

and does not believe she can return to work as a police officer because of the limited range of

motion in her neck, upper body weakness and numbing of her left arm and hand.

        Plaintiff also testified that she began regular psychiatric treatment with Dr. Chris Johnson

in 2000. She claimed she suffers from post-traumatic stress disorder (PTSD) and depression due

to the injuries she suffered during the 1996 training drill. At the time of the hearing, she was

taking a drug for anxiety and as a sleep aid.

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        Officer Hozzian testified that he was an instructor at the October 16, 1996, police baton

training. Hozzian wore a “red man suit,” which covered him in padding from head to toe.

Hozzian engaged trainees using controlled punches and kicks with about 25% force. Hozzian

denied that he punched or kicked plaintiff in the face. He could not recall her head snapping back

or that he struck her nose or right eye. He testified that nothing unusual happened during

plaintiff’s training. He could not remember physical contact with her. He testified that if she had

been injured, he would have been required to contact the fire department under department

policy. Plaintiff went through the full baton training session with Hozzian and never said she was

injured. At the end of the class, Hozzian asked if everyone was all right, and everybody, including

plaintiff, said they were okay. Hozzian learned a week later from Sergeant Kinsella that plaintiff

said she was injured. Hozzian admitted he received a February 11, 1997, memorandum from

Lieutenant Doll, advising training instructors that two student officers had been injured and that

strong physical contact was not practical for the training. Hozzian testified that there had been no

violent contact with trainees, and he was never disciplined as a result of the memorandum.

        Sergeant Kinsella testified that he also was an instructor during the baton training. He saw

Hozzian engage in three drills with plaintiff where Hozzian made mild contact with her in the form

of a “spin back fist.” Kinsella did not see plaintiff injured or a report that she was injured.

Kinsella called an ambulance for another trainee who injured his finger on the same date. When

Kinsella called plaintiff a few days later as a “wellness” check, she reported she was tired but

feeling “pretty good.” She did not report being injured. Kinsella also saw Lieutenant Doll’s

memorandum but denied violent physical contact between instructors and students. He testified

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he was not disciplined as a result of the memorandum.

        The medical reports of Drs. Daniel Yohanna, Alexander E. Obolsky and Richard P. Harris,

who examined plaintiff at the Board’s request about her alleged psychiatric disabilities, were

admitted into evidence. Dr. Yohanna did not observe symptoms of PTSD or depression and,

based on his review of plaintiff’s medical records, concluded that she did not suffer from a

psychiatric disability. Yohanna noted that there were no objective signs and symptoms to justify

the diagnosis. He concluded that plaintiff was exaggerating her symptoms and malingering.

        Dr. Obolsky found that plaintiff did not suffer from PTSD or depression based on

plaintiff’s medical, work and legal records, the results of various tests and an interview. Obolsky

noted that plaintiff’s diagnosis was based on a self-report and that the training incident was neither

objectively nor subjectively sufficient to trigger PTSD. Obolsky concluded that plaintiff did not

suffer from a psychiatric disability.

        Dr. Harris, however, found that plaintiff was psychologically disabled based on an

interview and review of plaintiff’s medical records. He said plaintiff had credibility problems. He

stated that it was possible she lied about the training incident. But, he concluded that plaintiff’s

decision to undergo cervical fusion surgery supported her credibility. Harris noted that plaintiff

believed she had been continuously mistreated and attacked and that she engaged in self-defeating

behaviors. While plaintiff did not meet the criteria Harris typically uses to find disability, he

concluded that plaintiff would “not be able to function effectively in her current psychological-

physical state.”

        Plaintiff was examined at the Board’s request for physical disability by Drs. Charles

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Mercier, James W. Milgram and Sami Rosenblatt. She was also examined by her doctor, Jeffrey

E. Coe. The doctors’ reports were admitted into evidence. Mercier found after an exam and

review of her medical records that plaintiff was not physically disabled. Mercier appears to have

based his opinion, in part, on a belief that plaintiff had neck problems that occurred before she

was hired. But the record does not support this. Mercier stated that plaintiff recovered from her

alleged October 1996 injury by February 1997. Her subsequent medical care for her neck

problem was not related to the training incident. Mercier noted that plaintiff’s cervical fusion was

stable, her wounds were well healed and, except for subjective decreased range of motion, her

neck examination was normal.

        Dr. Milgrim concluded that plaintiff was physically disabled based on his examination of

plaintiff and her medical records. Milgrim found that the cervical fusion surgery rendered plaintiff

disabled because it decreased her range of motion and increased the “possibility of *** future

disability” should she be involved in a fight.

        Dr. Rosenblatt concluded that plaintiff was physically disabled based on his examination of

plaintiff and her medical records. Rosenblatt found plaintiff’s cervical range of motion to be

limited. Dr. Rosenblatt concluded she was not suitable for return to active duty.

        Dr. Coe concluded after a physical examination that plaintiff was physically disabled.

Coe’s examination revealed a decreased range of motion of the cervical spine in flexion,

extension, bilateral rotation and bending. Coe found that plaintiff required permanent work

restriction to “the medium physical demand level with avoidance of overhead activities.”

        Plaintiff’s records reveal that she first sought treatment for neck pain with Dr. Rocke on

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1-09-1557


November 11, 1996. Plaintiff reported that she had been injured in training. Rocke stated that

plaintiff had cervical spasms extending into her trapezius. On December 6, 1996, plaintiff was

diagnosed with cervical radiculopathy by Dr. Diab, who examined her in connection with her

worker’s compensation claim. Diab released plaintiff with light duty restrictions and referred her

to Dr. Mochizuki. On December 19, 1996, plaintiff was examined by Dr. Yen at the request of

the Village. Yen diagnosed plaintiff with bicep tendinitis of the left shoulder and noted that the X

ray of her shoulder and neck revealed essentially normal bone and joint findings. Yen released

plaintiff to work at full duty without restrictions. Mochizuki first saw plaintiff on January 8,

1997, and diagnosed her with either myofascial pain or a left radiculopathy. Mochizuki permitted

plaintiff to return to work without restrictions. Mochizuki reported that an EMG and MRI

produced “near normal” results.

       On January 14, 1997, plaintiff completed a cervical spine evaluation at Palos Community

Hospital, where she reported suffering from headaches, stiffness, weakness, numbness and

tingling. Dr. Mochizuki reexamined plaintiff on February 17, 1997, and reported that her

condition continued to improve and she had no difficulty at work. On October 17, 1997,

Mochizuki diagnosed plaintiff with residual myofascial pain and recommended a trigger point

injection and physical therapy. In November 1997, plaintiff underwent an evaluation with Dr. Joel

M. Press. Dr. Press diagnosed plaintiff with a probable chronic left C5-C6 facet irritation,

secondary myofascial pain syndrome and degenerative disk changes in the cervical spine. Plaintiff

continued physical therapy until March 1998. On March 16, 1998, plaintiff returned to Press,

who recommended facet injections. Dr. Jeffrey Katz gave the injection on April 29, 1998, but

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1-09-1557


noted that he did not believe further facet injections would help. Katz’s records note objective

symptoms of decreased flexion and rotation.

       Plaintiff was examined by Dr. Terrence Moisan on January 24, 1999, at the request of the

police department. Moisan noted a mild degree of cervical muscle spasm but stated that it

appeared plaintiff was voluntarily tensing her muscles. In November 1999, Dr. Phillips performed

a three-level cervical discectomy and fusion. Phillips had recommended more conservative

measures, but plaintiff elected to have the surgery.

       On August 21, 2000, plaintiff underwent a functional capacity evaluation (FCE). The

FCE revealed significant limitations in her cervical spine range of motion. The evaluator found

several essential duties of a police officer plaintiff would not be able to perform. On February 27,

2001, plaintiff underwent a second FCE which showed improvement over the first FCE, although

the evaluator concluded that plaintiff could not return to duty as a police officer. On March 13,

2001, after reviewing the FCE, Dr. Phillips stated that plaintiff was unable to work as a police

officer without restrictions. On June 17, 2002, Phillips stated that plaintiff was doing “reasonably

well,” and while he believed she could return to work in a limited capacity, Phillips was not

convinced that she could return to work in an “active duty capacity.” On August 5, 2002, another

FCE was conducted. The FCE stated that plaintiff could work at a light-medium level.

       On November 1, 2007, the Board denied plaintiff’s application for a line-of-duty disability

pension and a not-on-duty disability pension by a 3 to 0 vote. Board members Dargan and

Bianchi were present but abstained from voting.

       On December 21, 2007, the Board issued a written decision denying plaintiff a disability

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pension. The Board relied primarily on the medical opinions of Drs. Yohanna, Obolsky and

Mercier and plaintiff’s medical records. The Board did not give weight to the opinions or

conclusions of the physicians who “based their conclusions that [plaintiff] is disabled upon

[plaintiff’s] subjective complaints as to her limitations.” The Board found plaintiff’s testimony not

credible with regard to both the occurrence of an injury on October 17, 1996, and her physical

and psychological complaints.

       Following the Board’s decision, plaintiff filed a complaint for administrative review. The

trial court affirmed the Board’s findings that plaintiff was not mentally disabled and was not

injured in the line of duty. But the court reversed the Board’s finding that plaintiff was not

physically disabled and held she was entitled to not-on-duty disability pension benefits.

       We first turn to plaintiff’s contention that she was denied a fair and impartial hearing

because Board members Bianchi and Dargan were biased against her. Plaintiff argues that

Bianchi and Dargan should have recused themselves because Bianchi was named in a sexual

harassment suit filed by plaintiff against the Village and Dargan was one of the officers who

allegedly created a hostile work environment.

        In administrative law cases, we review the decision of the administrative agency, not the

trial court. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 531, 870 N.E.2d

273 (2007). Our review is limited to the administrative record. 735 ILCS 5/3-110 (West 2008);

Robbins v. Board of Trustees of the Carbondale Police Pension Fund, 177 Ill. 2d 533, 538, 687

N.E.2d 39 (1997).

       “A mere possibility of prejudice is insufficient to show that a board, or any of its members,

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was biased.” Collura v. Board of Police Commissioners of Village of Itasca, 113 Ill. 2d 361, 370,

498 N.E.2d 1148 (1986), citing Grissom v. Board of Education of Buckley-Loda Community

School District No. 8, 75 Ill. 2d 314, 321, 388 N.E.2d 398 (1978). A person claiming bias "must

demonstrate that the decision maker is not ‘ "capable of judging a particular controversy [fairly]

on the basis of its own circumstances" ’ ” and must overcome the presumption that the decision

makers are able to judge each particular case objectively and fairly based on the facts. Danko v.

Board of Trustees of the City of Harvey Police Pension Board, 240 Ill. App. 3d 633, 641-42, 608

N.E.2d 333 (1992), quoting Grissom, 75 Ill. 2d at 320, quoting Hortonville Joint School District

No. 1 v. Hortonville Education Ass'n, 426 U.S. 482, 493, 49 L. Ed. 2d 1, 9, 96 S. Ct. 2308, 2314

(1976). A claimant may show bias or prejudice if a disinterested observer might conclude that the

administrative body or its members had in some measure judged the case in advance. Danko, 240

Ill. App. 3d at 642. If one decision maker on an administrative body is not completely

disinterested, his participation “ ' "infects the action of the whole body and makes it voidable." '

[Citation.]” Danko, 240 Ill. App. 3d at 642.

       Here, plaintiff’s only evidence of bias is the sexual harassment lawsuit against the Village

of Orland Park, settled without a decision on the merits. Without more, plaintiff’s claim is

unpersuasive.

       Plaintiff cites to no case, nor are we aware of one, where abstention on a vote can be read

as probative of bias. In contrast, the police chief serving on the Harvey police pension board in

Danko made several statements during the hearing that evidenced his bias. Danko, 240 Ill. App.

3d at 643. These statements during the hearing were noted by the court. Danko, 240 Ill. App. 3d

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at 643. Nothing comparable appears in the record of this hearing. We believe plaintiff has failed

to show more than a “mere possibility” that Bianchi and Dargan were biased or that their bias

“infected” the Board’s decision.

        Next, we address plaintiff’s contention that the Board’s decision denying her a line-of-duty

disability pension is against the manifest weight of the evidence. She claims that the record shows

that the injuries of which she complains can be traced to the baton exercise on October 17, 1996.

        Section 3-114.1 of the Code states that “[i]f a police officer as the result of sickness,

accident or injury incurred in or resulting from the performance of an act of duty, is found to be

physically or mentally disabled for service in the police department, so as to render necessary his

or her suspension or retirement from the police service,” that officer is entitled to a line-of-duty

disability pension. 40 ILCS 5/3-114.1 (West 2002).

        The parties agree that this issue is a question of fact, reviewed under a manifest weight of

the evidence standard. Marconi, 225 Ill. 2d at 532. “ ‘An administrative agency decision is

against the manifest weight of the evidence only if the opposite conclusion is clearly evident.’ ”

Marconi, 225 Ill. 2d at 534, quoting Abrahmson v. Illinois Department of Professional

Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). “ '[F]indings and conclusions of the

administrative agency on questions of fact shall be held to be prima facie true and correct,' ” and

the “ 'mere fact that an opposite conclusion is reasonable or that the reviewing court might have

ruled differently will not justify reversal of the administrative findings.' " Marconi, 225 Ill. 2d at

534, quoting 735 ILCS 5/3-110 (West 2002), and Abrahmson, 153 Ill. 2d at 88. “If the record

contains evidence to support the agency’s decision, that decision should be affirmed.” (Emphasis

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added.) Marconi, 225 Ill. 2d at 534.

        The Board concluded that plaintiff was not injured during the October 17, 1996, police

baton training after weighing the testimony of plaintiff, Officer Hozzian and Sergeant Kinsella.

The Board stated that it was giving no weight to plaintiff’s testimony because at least three of the

doctors who examined her on behalf of the Board found she was “not believable.” This finding is

within the province of the Board, and it is not our function to reevaluate witness credibility or

resolve conflicting evidence. Marconi, 225 Ill. 2d at 540. Under the guidelines set out in

Marconi, we confirm the Board’s decision to deny plaintiff a line-of-duty disability pension.

        Finally, we address whether plaintiff is entitled to a not-on-duty disability pension under

section 3-114.2 of the Code (40 ILCS 5/3-114.2 (West 2002)). Section 3-114.2 states that 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 of 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.” 40 ILCS 5/3-114.2 (West 2002). Plaintiff urges us to: (1) reverse the trial court

judgment affirming the Board’s finding that plaintiff is not psychiatrically disabled because the

Board’s decision was against the manifest weight of the evidence; and (2) affirm the trial court’s

reversal of the Board’s finding that plaintiff is not physically disabled. Defendant cross-appeals

the trial court’s reversal of the Board’s finding that plaintiff was not physically disabled.

        As noted, we must confirm the Board’s decision “[i]f the record contains evidence to

support the agency’s decision.” Marconi, 225 Ill. 2d at 534, 540. Under this test, the record is

clear: it contains evidence to support the Board’s finding that plaintiff is neither psychiatrically nor

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physically disabled and not entitled to a not-on-duty disability pension under section 3-114.2 of

the Code (40 ILCS 5/3-114.2 (West 2002)). The Board found plaintiff was not psychiatrically

disabled based on the medical reports of Drs. Yohanna and Obolsky, who concluded that plaintiff

did not suffer from a psychiatric disability. Given Yohanna's and Harris’s conclusions about

plaintiff’s veracity, the Board also decided to give no weight to the opinions of physicians who

based their conclusions on plaintiff’s subjective complaints. Such determinations are within the

province of the Board, and it is not our function to reevaluate witness credibility or resolve

conflicting evidence. Marconi, 225 Ill. 2d at 540. The Board’s decision was not against the

manifest weight of the evidence as the record contains evidence supporting the Board’s finding

that plaintiff was not psychiatrically disabled. Marconi, 225 Ill. 2d at 540.

       The Board also found plaintiff was not physically disabled based on the opinion of Dr.

Mercier, plaintiff’s testimony and plaintiff’s medical records. Mercier was the only doctor who

examined plaintiff for physical disability on behalf of the Board who concluded that plaintiff was

not physically disabled. The trial court reversed the Board’s finding on this issue because of

Mercier’s erroneous belief that plaintiff had received neck treatment before the October 1996

training incident. Plaintiff goes to great lengths in her brief to discredit Mercier’s report and the

Board’s reliance on it. But again, this issue involves the assessment of the credibility of witnesses

and the weighing of evidence. The fact that we or the trial court might come to a different

conclusion than the Board over the weight to give conflicting evidence cannot justify reversal.

Marconi, 225 Ill. 2d at 540. If the record contains evidence supporting the Board’s decision that

plaintiff is not physically disabled, we must confirm. See Marconi, 225 Ill. 2d at 540.

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       The record contains evidence to support the Board’s finding that plaintiff is not physically

disabled. In spite of Dr. Mercier’s reliance on a belief that plaintiff had pre-existing neck

problems, the Board found his report to be the most thorough and thoughtful of the three doctors.

Mercier stated in his report that plaintiff had recovered by February 1997 from her alleged

October 1996 injury and subsequent medical care for her neck problem was not related to the

training incident. After his October 16, 2003, examination of plaintiff, Mercier noted that

plaintiff’s cervical fusion was stable, her wounds were well healed and, except for subjective

decreased range of motion, her neck examination was normal. The Board chose to discount Dr.

Milgrim’s opinion that plaintiff was disabled because it was premised on the possibility that

plaintiff might incur a “future disability” should she someday be in a fight, rather than a current

inability to work as a police officer. The Board also found Dr. Rosenblatt’s conclusions

unpersuasive because they were largely, if not entirely, based on plaintiff’s subjective complaints

and statements. As discussed above, the Board deemed plaintiff’s testimony about her physical

disability incredible based on its observations of plaintiff during the hearing and the opinions of at

least three physicians. In sum, there was evidence to support the Board’s finding that plaintiff

was not physically disabled. See Marconi, 225 Ill. 2d at 540.

       Plaintiff argues in her reply brief that defendant is attempting to mislead this court by

“misconstruing the evidence.” Plaintiff overstates the thrust of the Board’s brief. To support its

case, defendant does discuss plaintiff’s medical records and physical status before her application

for a disability pension. We find no attempt to mislead the court or misconstrue evidence.

Whatever the conflicts in the evidentiary material before the Board here, our traverse of the

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record leads us to conclude that there is evidence to support the findings of the Board under the

standard set out in Marconi. Marconi, 225 Ill. 2d at 540. We vacate the trial court’s reversal of

the Board’s denial of plaintiff’s application for a not-on-duty disability pension. We confirm the

judgment of the Board.

       Confirmed.

       J. GORDON, J., concurs.

       R.E. GORDON, J., dissents.




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       JUSTICE R.E. GORDON, 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 benefitted. 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

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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. Slip op. at 13. 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, inherent

contradictions, and focused almost entirely on plaintiff’s 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

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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.” Slip op. at 13. 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 plaintiff’s 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. Plaintiff’s 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

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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. Milgram’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

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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 plaintiff’s 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 pre-existing

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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 plaintiff’s 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.” Slip op. at 14.

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 plaintiff’s

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

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“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

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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 plaintiff’s treating physician, Dr. Phillips, concurs. The Board gave

more weight to Dr. Mercier’s report because of its “detailed summary” of plaintiff’s 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 plaintiff’s 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.




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