Cole v. Retirement Bd. Policemen's Annu.

• Decision Date: 30 November 2009
• Docket Number: No. 1-08-2722.,1-08-2722.
• Citation: 920 N.E.2d 476,336 Ill. Dec. 267,396 Ill. App. 3d 357
• Parties: Louise COLE, Plaintiff-Appellee, v. The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY AND BENEFIT FUND OF the CITY OF CHICAGO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

920 N.E.2d 476

396 Ill. App. 3d 357

336 Ill. Dec. 267

Louise COLE, Plaintiff-Appellee, v. The RETIREMENT BOARD OF the POLICEMEN'S ANNUITY AND BENEFIT FUND OF the CITY OF CHICAGO, Defendant-Appellant.

No. 1-08-2722.

Appellate Court of Illinois, First District, First Division.

November 30, 2009.

David R. Kugler, Esq., Chicago, IL, for Appellant.

Thomas J. Pleines, Esq., Chicago, IL, for Appellee.

Presiding Justice HALL delivered the opinion of the court:

The plaintiff, Louise Cole, filed an application for disability benefits with the defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (the Board). Following a hearing, the Board denied the plaintiff duty disability benefits but awarded her ordinary benefits. The plaintiff filed a complaint for administrative review. The circuit court reversed the Board's decision and remanded the case to the Board with instructions to award the plaintiff duty disability benefits at 50% of the plaintiff's salary.

The Board appeals, raising the following issues: whether the circuit court erred in reversing the decision of the Board; and whether the circuit court exceeded its statutory authority when it remanded the case to the Board, directing the Board to enter the award of benefits determined by the court. The plaintiff seeks an award of prejudgment interest.

On April 24, 2007, the plaintiff filed her application for benefits. On September 24, 2007, the Board heard the plaintiff's disability claim. The evidence presented at the hearing consisted of the plaintiff's testimony and her medical records. No medical testimony was presented. Because the sufficiency of the evidence is at issue, a detailed review of the evidence is required.

The plaintiff was appointed a member of the Chicago police department on June 19, 1991. Prior to October 30, 1993, she had incurred injuries on August 7, 1991, August 6, 1992, March 8, 1993, and September 3, 1993. The plaintiff had returned to full duty after each incident.

On October 30, 1993, the plaintiff was involved in an act-of-duty accident. The squad car in which she was a passenger was struck by a vehicle traveling at a high rate of speed and containing multiple armed offenders fleeing from a carjacking. The plaintiff sustained injuries to her lower back, both knees, and her neck and chest. Following the accident, the plaintiff was examined by Dr. John D. Sonnenberg. According to his November 3, 1993, report, the doctor diagnosed the plaintiff as suffering from cervical myositis, lumbosacral strain, contusions to her left hand and left knee, strain of her left Achilles tendon but no rupture, and right ankle sprain. X-rays of cervical and lumbosacral spine revealed spondylosis of the cervical spine and L5-S1 degenerative disc disease with narrowing at the lumbosacral junction. She was placed on medications and prescribed a course of physical therapy. By January 26, 1994, she was on light duty and performing fairly well. The February 16, 1994, MRI of her lumbar spine showed a mild central bulge at the L5-S1 level and facet spurring. The MRI of her cervical spine showed spurs at C5-C6 and C6-C7. The February 22, 1994, progress note stated that the plaintiff had myofascial pain syndrome of her lower back and cervical spine which was improving. The plaintiff returned to duty with the police department.

On June 4, 1994, the plaintiff was involved in an altercation with an individual who was HIV positive and had tuberculosis. In December 1994, she fell while conducting a missing persons investigation. She returned to full duty after that incident. On May 31, 1995, she was involved in an off-duty automobile accident. She experienced pain on her right side, neck and shoulders. She was prescribed rest and was off work for 13 days. In September 1995, she sustained an insect bite and missed six days of work.

On May 10, 1996, while checking vehicle stickers, the plaintiff was injured when a vehicle backed into her, striking her right knee and thigh. She was diagnosed with a contusion and sprains of the right knee and thigh. The plaintiff was prescribed physical therapy and limited duty. On May 24, 1996, she was returned to full duty.

On January 16, 1997, the plaintiff fell while entering the police station. She was referred to Dr. Miller. Dr. Miller noted that the plaintiff had a three-year history of injuring her left foot and ankle and complained of chondromalacia to the knee. The doctor diagnosed a bunion and hammertoe and dorsal ankle strain with Achilles tendinitis. On March 13, 1997, the plaintiff returned to full duty. On March 30, 1997, the plaintiff was exiting a car when her right ankle "went out." She was referred to Dr. Gates, who diagnosed repetitive right ankle strain and right knee strain. The plaintiff was prescribed physical therapy and medication. She was released to return to work on May 27, 1997. On March 17, 1998, the plaintiff was bitten while rescuing a dog from a burning building.

On September 21, 1998, the plaintiff fell while leaving the police station. Her gun jammed into her hip, and she injured her right elbow, knee, hip and ankle. On November 17, 1998, Dr. Bockel examined her. The plaintiff complained of right knee pain relating to the September 21, 1998, incident. An X-ray showed mild osteophytes and mild patellofemoral degenerative joint disease. The plaintiff was referred to Dr. Luke. An MRI of the knee showed mild degenerative joint disease and mild mensical degeneration, but there was no tear. The plaintiff returned to full duty in December 1998.

On March 1, 1999, the plaintiff was examined by Dr. Luke. The plaintiff complained of lateral hip pain radiating just below the knee into the calf. Dr. Luke referred the plaintiff to Dr. Lambur. X-rays of her hip showed evidence of degenerative joint disease. According to Dr. Lumbar, the plaintiff's hip condition was not related to her September 21, 1998, injury. Subsequently, the plaintiff was examined by Dr. Girzadas and Dr. Al-Aswad, both of whom concluded that the plaintiff's hip condition was related to her September 21, 1998, injury.

On June 17, 1999, Dr. Girzadas recommended physical therapy, which the plaintiff under went from June to November 1999. On October 18, 1999, Dr. Girzadas noted that the MRI and EMG of the plaintiff's right hip were normal; physical therapy was continued. On November 15, 1999, the plaintiff complained to Dr. Girzadas of hip and leg pain. The plaintiff was ordered to continue the present treatment plan and to follow up. A bone scan was ordered on December 6, 1999.

On February 21, 2000, the plaintiff saw Dr. Girzadas complaining of hip pain. The bone scan showed degenerative changes to her ankle and feet.¹ By June 5, 2000, Dr. Girzadas noted that the plaintiff was doing well on light duty; she was to follow up in six months.

On June 20, 2001, the plaintiff was crossing the street to report to work when she slipped on an oily substance and fell, injuring her right hip and wrist. X-rays of her hip showed evidence suggesting prior trauma and no fracture to her right wrist.

On November 19, 2001, Dr. Everakes diagnosed the plaintiff with fibromyalgia and degenerative joint disease. The plaintiff was treated by Dr. Katz for her fibromyalgia. Due to the fibromyalgia diagnoses, the plaintiff was off duty or on limited duty between April 24, 2004, and February 25, 2005, when she returned to limited duty.

On April 26, 2005, the plaintiff began seeing Dr. Harun Durudogan. She was suffering from traumatic arthritis. The doctor recommended joint supplements and nonsteroidal anti-inflammatory medications. The plaintiff saw Dr. Durudogan on November 17, 2005, complaining of hip pain. The November 17, 2005, X-rays indicated degenerative disc disease at L5-S1 and minimal degenerative changes in her hip. Dr. Katz took the plaintiff off duty between February 11 and February 25, 2006.

On April 14, 2006, while exiting the restroom at the police station, the plaintiff slipped and fell, injuring both knees. On May 19, 2006, the plaintiff related to Dr. Durudogan that she had experienced lower back pain, bilateral knee pain and left shoulder pain ever since the October 30, 1993, incident. She complained of radicular symptoms, which had been intermittent but now were constant. She also complained of myositis and pain related to her fibromyalgia. Dr. Durudogan examined the plaintiff and diagnosed a herniated nucleus pulposus, L4-L5/L5-S1, greater on the right than the left. The doctor recommended sedentary light duty, physical therapy, medication and that the plaintiff undergo an MRI of her lumbosacral spine. Dr. Durudogan referred the plaintiff to Dr. Richard Lim.

In his May 25, 2006, report to the medical services department, Dr. Lim noted that the plaintiff had been on disability for right-sided hip and lower back pain. The plaintiff related that in 2000, she had fallen, and her gun had hit her lower back and her right side.² She believed that her 1993 injury was related to her current disability. Three weeks prior to this visit, she felt a "pop" in her back and a worsening of her back pain. X-rays of her spine showed degenerative changes in her lumbar spine and a degenerative lumbar scoliosis. Noting that the previous MRI had shown a prior L5-S1 disc bulge, Dr. Lim opined that the plaintiff should under go another MRI to assess her current condition. Dr. Lim was not certain what disability was associated with her lumbar spine and recommended that the plaintiff undergo a functional capacity evaluation to document what her functional capabilities were. On June 6, 2006, Dr. Lim reviewed the MRI results. The test showed primarily L5-S1 degenerative changes. There was no nerve root compression, and no surgical intervention was deemed necessary. The plaintiff was returned to work with restrictions.

On June 13, 2006, the plaintiff was evaluated by Dr. Durudogan. The doctor noted that the plaintiff,...