Luchesi v. RETIREMENT BD. OF FIREMEN'S ANN.

• Decision Date: 19 August 2002
• Docket Number: No. 1-01-1195.,1-01-1195.
• Citation: 776 N.E.2d 703,267 Ill.Dec. 331,333 Ill. App.3d 543
• Parties: Robert LUCHESI, Plaintiff-Appellee, v. RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

776 N.E.2d 703

333 Ill. App.3d 543

267 Ill.Dec. 331

Robert LUCHESI, Plaintiff-Appellee, v. RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.

No. 1-01-1195.

Appellate Court of Illinois, First District, First Division.

August 19, 2002.

Rehearing Denied September 16, 2002.

Burke Burns & Pinelli, Ltd., Chicago (Vincent D. Pinelli, Timothy P. Mahoney, of counsel), for Appellant.

Sugarman & Horwitz, Chicago (Stephen B. Horwitz, of counsel), for Appellee.

Justice McNULTY delivered the opinion of the court:

The Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago denied Robert Luchesi's application for duty disability benefits because he failed to have physical therapy following a shoulder injury. On administrative review the trial court reversed the board's decision, finding that no law made firefighter's benefits contingent on receiving medical treatment. The board, on appeal, claims that Luchesi's failure to perform physical therapy constitutes an intervening cause breaking the causal connection between the shoulder injury and the disability.

We reject the board's argument because no evidence supports the conclusion that Luchesi would not be disabled if he had performed all prescribed physical therapy. As the injury remains a cause of Luchesi's disability, the board improperly denied Luchesi's application for benefits. We affirm the trial court's judgment reversing the board's decision.

On March 30, 1998, the Chicago fire department took a fire truck out of service when it broke down. Luchesi and another firefighter tried to move a ladder from that fire truck to a functioning fire truck that needed a ladder. Luchesi needed to step backwards with the ladder. As he did so he fell backwards over an object another firefighter left on the floor. An ambulance took Luchesi to a nearby hospital. The fire station's log has a notation that Luchesi "fell on his tailbone." The log also reflected that doctors at the hospital found that Luchesi suffered "lumbar & shoulder contusion."

The doctor treating Luchesi referred him to physical therapy. When the shoulder failed to improve after months of physical therapy, the doctor ordered a magnetic resonance imaging (MRI) test. The radiologist reported no remarkable results from the MRI. Luchesi's treating physician reported "mild progress" from the physical therapy, but with significant limitations. The doctor prescribed injections to reduce the pain.

Despite Luchesi's continuing efforts at physical therapy, his shoulder did not heal. In October 1998 his doctor referred him to an orthopedic surgeon. The surgeon examined Luchesi, reviewed the MRI and X rays, and recommended an arthroscopy. When the surgeon operated in January 1999 he found a partial tear of the rotator cuff, an anterior labrum tear, and a slap lesion. The surgeon performed debridements of both tears, a decompression, and a resection.

Luchesi began a new course of physical therapy following the surgery, but he attended only three sessions. Although the surgeon prescribed an extended course of physical therapy, Luchesi refused any further treatment. The fire department terminated Luchesi's employment on March 12, 1999, because Luchesi missed medical appointments.

On April 1, 1999, Luchesi applied for duty disability benefits pursuant to section 6-151 of the Illinois Pension Code (the Code) (40 ILCS 5/6-161 (West 1998)). Dr. George Motto, a physician for the board, examined Luchesi.

The board held a hearing to consider the application. Luchesi testified that in the accident on March 30, 1998, he landed on his back and shoulder and he heard his shoulder pop. He had no previous problems with his shoulder.

The board presented a summary of the days Luchesi missed work due to health problems. The records showed that the fire department hired Luchesi in February 1980. Over the next 18 years Luchesi missed a total of 172 days for a variety of illnesses and injuries, none involving the shoulders. A board member, James Joyce, used the records for questioning Luchesi. Joyce found that Luchesi lost a year following the March 1998 injury for a total of more than 520 days off for health reasons in 19 years with the department. Joyce said:

"It looks like you average one month a year off work. I find that very unusual.

Then when you get down to your injury it[`]s reported as something to your lower back and then it comes out it is your shoulder and you started rehab but you quit rehab.

And there is a lot of inconsistencies. Very difficult to follow your case."

Two of Luchesi's coworkers corroborated his testimony about the accident, but they admitted that they did not see exactly how Luchesi landed. They agreed that Luchesi had not previously complained of inability to do any of the work, and they knew of no prior shoulder problems.

Dr. Motto testified that the present condition of Luchesi's shoulder prevented him from performing the duties of a firefighter. He found that atrophy, due to the lack of physical therapy following the operation, "would contribute" to the disabled condition of the shoulder. Motto said that Luchesi "obviously had a serious injury to his * * * shoulder," and "that injury was operated upon."

On cross-examination Luchesi's attorney specifically asked whether Motto found that Luchesi's disability resulted solely from the lack of physical therapy. Motto answered:

"No, I am not saying that. What I am saying is that I can not make a proper determination as to his level of [f]unctional [c]apacity; what it would have been if he had had the rehabilitation."

Motto also admitted that he saw no evidence of any incident other than the accident on March 30, 1998, that would have caused the shoulder injury. Counsel asked whether the present disability was related to the March 1998 accident. Motto said:

"[H]e does have the shoulder injury. * * * But his condition today is as much a result of the shoulder injury as the therapy for that injury or the absence thereof.

* * *

* * * I can't say what therapy would have done until I see the end result of therapy.

* * *

* * * [T]he surgery was for the shoulder injury. The therapy would have been follow-up to the surgery."

On redirect Motto said he was not "rendering an opinion" that the March 1998 accident caused the shoulder injury, although he reiterated that he saw no evidence of any other cause for that injury. He concluded again that the lack of physical therapy contributed to the disability.

The board found:

"The Fire Department logs * * * prepared at the time of the alleged injury reveal that the applicant fell on his tailbone. There is no mention in said Fire Department logs of any injury to the applicant's shoulder.

* * * The medical records establish that in June, 1998 the applicant underwent an MRI examination which concluded that `unremarkable MRI of the left shoulder' [sic]. * * *

* * * The applicant underwent surgery in January, 1999. The surgery revealed a tear in the left shoulder rotator cuff.

* * * After the surgery the applicant failed to undertake the prescribed physical therapy. As of the date of the hearing, the applicant still had not engaged in any physical therapy for his alleged shoulder injury.

* * *

* * * None of the witnesses called by the applicant to testify on his behalf at the hearing testified that they actually saw what had happened to the applicant when he allegedly was injured. None could testify as to what part of his body had hit the ground.

* * *

* * * George S. Motto, M.D. concluded that the applicant is unable to perform his duties as a firefighter in the Chicago Fire Department at the current time.

* * * The applicant is unable to perform his duties as a firefighter due to the lack of use of his shoulder, atrophy and severe de-conditioning. The atrophy in the applicant's shoulder was the result of his failure to undergo physical therapy following his surgical procedure. The applicant failed to undergo a standard prescribed total surgical rehabilitation program."

From these findings of fact, the board concluded that Luchesi failed to meet his burden of proving that "his disability was the result of a specific injury resulting from an act or acts of duty."

Luchesi filed an action for administrative review of the denial of duty disability benefits. The trial court found that the board made erroneous findings of fact, and the record showed that Luchesi injured his shoulder in the accident on March 30, 1998. The court expressly held that section 6-151 of the Code (40 ILCS 5/6-151 (West 1998)) did not disqualify an applicant from receiving benefits if the applicant failed to attend every medical appointment. Accordingly, the court reversed the board's decision.

ANALYSIS

We review the board's decision rather than the circuit court's judgment. Thigpen v. Retirement Board of Firemen's Annuity & Benefit Fund, 317 Ill.App.3d 1010, 251 Ill.Dec. 682, 741 N.E.2d 276 (2000). The parties disagree about the standard of review we must apply in this case. Luchesi admits that in most cases on administrative review, this court should not disturb the agency's findings of fact unless the manifest weight of the evidence contradicts those findings. Oregon Community Unit School District No. 220 v. Property Tax Appeal Board, 285 Ill. App.3d 170, 175, 220 Ill.Dec. 858, 674 N.E.2d 129 (1996). But the "deferential standard is not controlling where the [agency] is prejudiced or biased against the claimant and incapable of giving him a fair hearing." Danko v. Board of Trustees of the City of Harvey Pension Board, 240 Ill.App.3d 633, 641, 181 Ill.Dec. 260, 608 N.E.2d 333 (1992). Luchesi argues that the record here shows that the board harbored prejudice against Luchesi.

To show bias, the plaintiff must show that members of the adjudicating body had to some extent adjudged the facts as well as the law of the case in advance of hearing it. Waste Management of Illinois, Inc. v. Pollution...