Scepurek v. Bd. of Trs. of the Northbrook Firefighters' Pension Fund

• Decision Date: 04 March 2014
• Docket Number: No. 1–13–1066.,1–13–1066.
• Citation: 2014 IL App (1st) 131066,379 Ill.Dec. 753,7 N.E.3d 179
• Parties: Gabriel SCEPUREK, Plaintiff–Appellant, v. The BOARD OF TRUSTEES OF the NORTHBROOK FIREFIGHTERS' PENSION FUND, Thomas Schaul, President, Clifford Woodbury, Secretary, Hal Sanger, Trustee, Mark Nolan, Trustee, and Jeff Rowitz, Trustee, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 131066
7 N.E.3d 179
379 Ill.Dec. 753

Gabriel SCEPUREK, Plaintiff–Appellant,
v.
The BOARD OF TRUSTEES OF the NORTHBROOK FIREFIGHTERS' PENSION FUND, Thomas Schaul, President, Clifford Woodbury, Secretary, Hal Sanger, Trustee, Mark Nolan, Trustee, and Jeff Rowitz, Trustee, Defendants–Appellees.

No. 1–13–1066.

Appellate Court of Illinois,
First District, Second Division.

March 4, 2014.

[7 N.E.3d 180]

Corrine Watson, Anthony G. Argeros, LLC, Glenview, for appellant.

Barbara A. Adams, Betsy L. Gates, Holland & Knight LLP, Chicago, for appellees.

OPINION
Justice SIMON delivered the judgment of the court, with opinion.
¶ 1 INTRODUCTION

¶ 2 Plaintiff, Gabriel Scepurek, a lieutenant and firefighter/paramedic with the Village of Northbrook Fire Department for over 20 years, sued the Board of Trustees of the Northbrook Firefighters' Pension Fund (Board) alleging that the Board wrongfully denied his application for a duty disability pension on April 10, 2012, despite the fact that all medical opinions unanimously agreed that plaintiff suffered an on-the-job injury that left him unable to perform his regular duties and permanently disabled. The circuit court affirmed the Board's decision in an order dated March 8, 2013, and stated “for reasons stated on the record, the court affirms the Final Order and Decision of the defendants, Board of Trustees of the Northbrook Firefighters' Pension Fund and its members.” There is no transcript of the March 8, 2013 court's proceedings in the original record. Plaintiff has not provided a transcript or summary of the court's stated reasons as a part of the record on appeal. The defendant attached the transcript of the circuit court's remarks from the March 8, 2013 proceedings as an appendix to its brief. “[T]he record on appeal cannot be supplemented by attaching documents to a brief or including them in an appendix.”

[7 N.E.3d 181]

McCarty v. Weatherford, 362 Ill.App.3d 308, 311, 297 Ill.Dec. 850, 838 N.E.2d 337 (2005). Neither party followed court rules and attempted to make the transcript a part of the official record on appeal. However, because this court reviews the Board's decision, not the circuit court's decision, this failure is not fatal to plaintiff's appeal.

¶ 3 Supreme Court Rule 329 (Ill. S.Ct. R. 329 (eff. Jan. 1, 2006)) allows the parties to “supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court.” Jones v. Ford Motor Co., 347 Ill.App.3d 176, 180, 282 Ill.Dec. 896, 807 N.E.2d 520 (2004). Although plaintiff's opening brief had already been filed before the defendant attached the transcript as an appendix to its responsive brief, we believe this supplement, even at this late date, does not unfairly prejudice the plaintiff, who was represented at the hearing. Consequently, we amend the record pursuant to Supreme Court Rule 329 to include the March 8, 2013 transcript of the circuit court's proceedings. Ill. S.Ct. R. 329 (eff. Jan. 1, 2006); McCarty v. Weatherford, 362 Ill.App.3d 308, 313, 297 Ill.Dec. 850, 838 N.E.2d 337 (2005).

¶ 4 Plaintiff filed a timely notice of appeal on April 2, 2013. Ill. S.Ct. R. 303(a) (eff. June 4, 2008).

¶ 5 BACKGROUND

¶ 6 Plaintiff is employed by the Village of Northbrook as a firefighter/paramedic. He has been so employed since August 21, 1987 and currently holds the rank of lieutenant. By application dated November 16, 2010, plaintiff filed for duty-related disability pension benefits alleging that he is permanently disabled and unable to perform the duties of a firefighter/paramedic due to an on-the-job back injury he received on May 26, 2010 at 2:45 a.m., while performing cardiopulmonary resuscitation (CPR) on a patient on the floor of a bathroom in response to an emergency call. Plaintiff pursued his application for disability benefits by presenting evidence that the May 26, 2010 back injury is a stand-alone injury that was, at least in part, responsible for his permanent disability and/or that the May 25, 2010 back injury exacerbated many prior back injuries he received on the job while performing his firefighter/paramedic functions over the past 23-plus years.

¶ 7 Plaintiff testified to receiving prior duty-related back injuries on June 8, 1989; June 28, 1991; January 11, 1995; October 2, 1995; January 7, 1998; March 2, 1998; September 4, 2007; January 7, 2008; February 21, 2008; March 17, 2008; October 19, 2008; March 9, 2009; and July 13, 2009, along with submission of official reports.

¶ 8 As a result of the May 25, 2010 back injury, contemporaneous official reports were filed that documented the CPR incident that plaintiff was involved in that triggered his back injury. One such report, written by plaintiff's coworker, firefighter/paramedic Chris Goer, and additionally witnessed by firefighter/paramedic Marinier states:

“E11 and A11 were called to 270 Skokie Blvd. for cardiac arrest. VA nursing staff was performing CPR on the pt. We took over CPR immediately. Pt. was lying on floor halfway in bath room. When Lt. Scepurek was asked to assist w/CPR he jumped right in. After several minutes of chest compressions he stated that his back was beginning to tighten up. After aggressive resuscitative efforts to bring pt. back, the hospital ordered us to withdraw our efforts. At this time, Lt. Scepurek stood up from his crouched position. He then complained of excruciating back pain.” (Emphasis added).

[7 N.E.3d 182]

¶ 9 Plaintiff admitted that although he was experiencing a great deal of back pain, he attempted to finish his shift, but could not due to the pain and was transported to the emergency room. He was prescribed pain relief medication and a muscle relaxant and ordered off work. On June 3, 2010, plaintiff returned to his treating orthopedic surgeon, Dr. Mark Lorenz, who is a member of a team of 25 orthopedic surgeons with Hinsdale Orthopedics group, because the prescribed pain relief and muscle relaxant medication from the emergency room visit had not provided any relief. Dr. Lorenz ordered X-rays, an MRI, a series of epidural steroid injections, an order to remain off work and physical therapy sessions. After plaintiff was provided only limited and temporary relief, a new functional capacity evaluation (FCE) was ordered. Based on the test results, Dr. Lorenz advised the plaintiff that his career as a firefighter/paramedic was over.

¶ 10 On October 12, 2010, plaintiff sought out a second orthopedic surgeon's opinion from Dr. Howard An, who initially prescribed more pain relief medication and more physical therapy. On November 12, 2010, Dr. An concluded that there was no realistic chance for plaintiff to return to duty and, in fact, returning to duty would likely worsen his condition.

¶ 11 Plaintiff returned to Dr. Lorenz on January 3, 2011, who advised plaintiff that his restrictions should be considered permanent. Dr. Lorenz's report states as follows:

“It is a medical and surgical certainty the patient's objective and subjective findings are consistent with a low back injury while working as a firefighter, April 17, 2008, lifting a cot, which caused aggravation, acutely, of underlying lumbar spondylosis and some chronic irritation with repetitive motion of his low back. This resolved with physical therapy treatment, time and rehabilitation. The patient was returned to work July 21, 2008, full duty as a fireman.

The patient was able to work until May 25, 2010, where he was performing CPR as a fireman and paramedic, where he developed increasing back pain. He was diagnosed with a left L5–S1 acute disc herniation. He went through conservative care, continued to have ongoing pain. He underwent a functional capacity assessment showing a restriction of 32 pounds. He was unable to return as a firefighter. He was placed at maximum medical improvement January 3, 2011. At this point in time, patient needs no further intervention regarding his back or surgical intervention. He may continue with pain management, as needed.”

¶ 12 Pursuant to section 3–115 of the Illinois Pension Code (Code) (40 ILCS 5/3–115 (West 2012)), the Board selected three physicians, Drs. Bernstein, Shapiro and Nolden, to perform independent medical evaluations of the plaintiff. Drs. Bernstein and Shapiro issued reports and concluded that the plaintiff was permanently disabled as a result of his on the job duties. Both doctors signed the Northbrook Firefighter's Pension Fund “Physician's Certification of Disability and answered “yes” to the form's question that asked: “Is it your opinion that the applicant's disability is a result of sickness, accident or injury incurred in or resulting from the performance of an act of duty or from the cumulative effects of acts of duty?” Dr. Nolden did not sign a certification of plaintiff's disability, but submitted a report in which he deferred to the FCE findings which indicated plaintiff could not perform firefighter/paramedic duties any longer. All three physicians were scheduled by the Board to present in-person testimony.

[7 N.E.3d 183]

During Dr. Nolden's testimony, he clarified his report and his opinion regarding the genesis of plaintiff's current disability as follows:

“Question: Would you agree with me that in this case, given the medical evidence we have from the films as well as the FCE data as well as the report of incident from the May of 2010, it is more likely than not true that the May of 2010 CPR incident was, in fact, a causal factor in aggravating or exacerbating the symptoms that Mr. Scepurek has had and have been objectively confirmed since that date?

Answer by Dr. Nolden: Yes.”

¶ 13 Despite the unanimous opinions of the plaintiff's treating physicians and those physicians hired by the Board, the Board did not discuss the conclusions reached by plaintiff's treating orthopedic surgeon or the above-quoted testimony of Dr. Nolden or the conclusions reached by Drs. Bernstein and...