Hodges v. Board of Trustees of City of Granite City Police Pension Fund

• Decision Date: 13 July 1979
• Docket Number: No. 78-316,78-316
• Citation: 392 N.E.2d 417,73 Ill.App.3d 978,29 Ill.Dec. 860
• Parties: , 29 Ill.Dec. 860 Kelly HODGES, Plaintiff-Appellee, v. The BOARD OF TRUSTEES OF the CITY OF GRANITE CITY POLICE PENSION FUND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 417

392 N.E.2d 417

73 Ill.App.3d 978, 29 Ill.Dec. 860

Kelly HODGES, Plaintiff-Appellee, v. The BOARD OF TRUSTEES OF the CITY OF GRANITE CITY POLICE PENSION FUND, Defendant-Appellant.

No. 78-316.

Appellate Court of Illinois, Fifth District.

July 13, 1979.

Irvin C. Slate, Jr., Granite City, for defendant-appellant.

Rodney J. Pitts, Robert H. Gregory, Smith, Larson & Pitts, East Alton, for plaintiff-appellee.

KASSERMAN, Justice:

Plaintiff, Kelly Hodges, petitioned the Circuit Court of Madison County for review of an administrative decision of the defendant, Board of Trustees of the City of Granite City Police Pension Fund denying his application for a policeman's disability pension as provided by statute. (Ill.Rev.Stat.1975, ch. 1081/2, pars. 3-114.1 et seq.) The Board's decision was reversed by the circuit court, and plaintiff was awarded a service-connected total disability pension of 65 percent of his monthly salary, the court finding that plaintiff's disability arose out of his employment.

On appeal, the Board contends that the trial court's order reversing its decision and awarding plaintiff a total disability pension was error in view of the conflicting medical evidence presented at the hearing on the question of plaintiff's disability and because of plaintiff's refusal to undergo another physical examination as requested by the Board.

The pertinent facts are not in dispute and may be briefly stated. On the date of his hearing, plaintiff was 45 years of age and had been employed as a Granite City Policeman for over 21 years. According to plaintiff, he first injured his back in 1965 in a traffic accident while on duty and as a result missed 60 days of work. In 1974, he slipped and fell at the police station reinjuring his back, but he missed no work as a result of the mishap. Although he testified that he suffered recurring stiffness and soreness of his back and neck after his 1965 accident, he apparently received no major medical treatment until October, 1975, when he was admitted to Wood River Township Hospital for duodenitis and a hiatus hernia. During his nine day hospitalization, plaintiff's back was x-rayed revealing slight lumbosacral disc space narrowing and flattening of the cervical lordotic curve. There was no mention of any accident or trauma in the 11 page hospital report.

Plaintiff was hospitalized again in December, 1975, for 12 days and was found to have a cervical and lumbar spine sprain. During this hospital stay, a cervical myelogram was performed on plaintiff with negative results. Thereafter, plaintiff was examined or treated by several physicians whose reports and findings were primarily limited to subjective symptomology of neck and back pains. The most detailed medical report presented into evidence at the hearing by plaintiff was furnished by Dr. Sharon Woodruff, a neurologist and psychiatrist, based on her examination of plaintiff on October 12, 1976. Dr. Woodruff testified that plaintiff was 100 percent permanently and totally disabled finding that he had a degenerated disc and rupture "confirmed by the 1975 myelogram of Dr. Vong", although Vong had considered the myelogram negative as had the radiologist, Dr. Donald Bottom, and plaintiff's attending physician, Dr. R. J. Wood. Plaintiff was also examined by Dr. Jacob Cohen who had been selected by the Board to determine the existence and extent of plaintiff's disability. Dr. Cohen's findings, presented to the Board in the form of a letter, indicated that more evidence was necessary as his examination revealed the absence of any abnormality which would have posed a question of total disability and permanent disability at that time. All of the foregoing medical evidence was presented in the form of written reports without objection. At the close of plaintiff's testimony, the hearing was dismissed without a determination of the issue of plaintiff's disability.

On July 29, 1977, approximately eight months after the hearing on plaintiff's application for disability pension, plaintiff filed a petition for mandamus praying for the entry of an order directing the Board to render a final decision in regard to the evidence taken at the earlier hearing. In response to plaintiff's petition, the Board, by its secretary, Gerald Pinkerton, filed an affidavit reciting that the Board had met on August 4, 1977, and unanimously denied plaintiff's application on the grounds that insufficient proof of disability had been presented by plaintiff. The affidavit further recited that plaintiff's attorney had been contacted by the Board and requested to direct plaintiff to be examined by a specialist, but that plaintiff had refused the request and stated that he would submit to no further examinations. Thereafter, plaintiff amended his complaint to seek administrative review of the agency's decision under the Administrative Review Act. (Ill.Rev.Stat.1975, ch. 110, pars. 264 Et seq.) After considering the entire record of the proceedings before the Board, the trial court reversed the Board's determination, finding that it was against the manifest weight of the evidence. The court further found that plaintiff had been permanently disabled since October, 1975, as a result of work related accidents and, therefore, was entitled to disability benefits of 65 percent of his monthly salary.

The Board contends that its decision should have been affirmed by the circuit court because the evidence of plaintiff's disability presented at the agency's hearing was conflicting and in view of plaintiff's improper refusal to submit to another physical examination by a specialist as requested by the Board. The Board also asserts that the court compounded the error by granting plaintiff a service-connected disability pension in spite of the fact that plaintiff had applied for a non-duty pension. The Board does not argue that the medical evidence adduced in support of plaintiff's application for a disability pension was incompetent; rather, it urges that the evidence was inconclusive and, therefore, its denial of plaintiff's application cannot be said to have been against the manifest weight of the evidence. We agree.

Our resolution of the issue presented for review necessarily begins with the recognition of the rule that upon judicial review, the findings and conclusions of an administrative agency on questions of fact are deemed to be Prima facie true and correct. (Ill.Rev.Stat.1975, ch. 110, par. 274; Gloss v. Board of Trustees, Firemen's Pension Fund of Chicago Heights (1st Dist.1971) 132 Ill.App.2d 736, 270 N.E.2d 472.) On administrative review, the court's function is limited to ascertaining whether the findings and decision of the administrative agency on questions of fact are against the...