Opinion
3-23-0666
09-27-2024
VERONICA MONTOYA, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE ILLINOIS MUNICIPAL RETIREMENT FUND, BRIAN COLLINS, in His Official Capacity as Executive Director of the Illinois Municipal Retirement Fund, NATALIE COPPER, in Her Official Capacity as Employee Trustee and President of the Illinois Municipal Retirement Fund, TOM KUEHNE, in His Official Capacity as Executive Trustee and Vice-President of the Illinois Municipal Retirement Fund, PETER STEFAN, in His Official Capacity as Employee Trustee and Secretary of the Illinois Municipal Retirement Fund, GWEN HENRY, in Her Official Capacity as Executive Trustee of the Illinois Municipal Retirement Fund, LOUIS KOSIBA, in His Official Capacity as Annuitant Trustee of the Illinois Municipal Retirement Fund, DAVID MILLER, in His Official Capacity as Executive Trustee of the Illinois Municipal Retirement Fund, TRACIE MITCHELL, in Her Official Capacity as Employee Trustee of the Illinois Municipal Retirement Fund, and SUE STANISH, in Her Official Capacity as Executive Trustee of the Illinois Municipal Retirement Fund, Defendants-Appellants.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois, Appeal No. 3-23-0666 Circuit No. 22-MR-756 Honorable Craig R. Belford, Judge, Presiding.
JUSTICE PETERSON delivered the judgment of the court. Justice Holdridge concurred in the judgment. Presiding Justice McDade dissented.
ORDER
PETERSON JUSTICE
¶ 1 Held: The Board's denial of plaintiff's claim for total and permanent disability benefits was not against the manifest weight of the evidence.
¶ 2 Defendants, Board of Trustees of the Illinois Municipal Retirement Fund and its members in their official capacities (collectively, "the Board"), appeal the Du Page County circuit court's reversal of their decision denying plaintiff, Veronica Montoya's, claim for total and permanent disability benefits. The Board argues that there was evidence supporting its decision such that it was not against the manifest weight of the evidence. We reverse the circuit court and affirm the Board's decision.
¶ 3 I. BACKGROUND
¶ 4 Montoya applied for temporary disability benefits from the Illinois Municipal Retirement Fund (IMRF) based upon diagnoses of idiopathic epilepsy, idiopathic pericarditis, and ST elevation myocardial infarction involving other sites. She received temporary disability benefits from April 18, 2017, to September 30, 2019. As her temporary benefits were going to be exhausted, IMRF reviewed Montoya's file to determine if she was eligible for permanent disability benefits. Montoya's physician, Dr. Dale Gray, provided physical capabilities evaluations dated September 24, 2018, and August 30, 2019. The 2018 evaluation indicated that Montoya could stand for an hour at a time and sit for an hour at a time but that she could not walk or drive for any number of hours. The 2019 evaluation indicated that Montoya could stand for two hours at a time, sit for two hours at a time, and drive for one hour at a time, but that she could not walk for any number of hours. The 2019 evaluation also indicated that Montoya could occasionally lift or carry up to 10 pounds and that she could perform simple grasping and fine manipulation. The IMRF's medical consultant, Dr. Shadwan Alsafwah, who is board certified in cardiovascular disease and interventional cardiology, reviewed all medical documentation to determine whether Montoya qualified for benefits under the total and permanent disability standard. Dr. Alsafwah determined that Montoya was capable of performing sedentary work and therefore, was not totally and permanently disabled from ongoing employment. He specifically noted that the physical capabilities assessment by Dr. Gray indicated that Montoya was capable of performing work in a sedentary fashion. On November 18, 2019, IMRF sent notice to Montoya that she did not qualify for total and permanent disability benefits. Montoya appealed that decision to the Board's benefit review committee.
¶ 5 As part of the review, Montoya was advised she would be required to undergo a functional capacity evaluation (FCE). In letters to both Dr. Alsafwah and cardiologist, Dr. Marysia Tweet, a disability claims specialist with IMRF stated that Montoya was required by IMRF law to undergo an FCE. Dr. Gray originally authorized the FCE but later rescinded the authorization. The request for medical clearance provided to Dr. Gray indicated that the FCE may last 3-4 hours and included "aerobic capacity assessment utilizing a single stage treadmill protocol, static/isometric strength testing, maximal lift and carry testing, frequent lift and carry testing, push/pull testing and positional tolerance testing including: sitting, standing, walking, stair climbing, ladder climbing, reaching, stooping, kneeling, crouching, crawling, upper extremity manipulative functions and job specific simulation." The Board conducted a hearing on December 16, 2021, during which Montoya testified. Montoya indicated her cardiologist, Dr. Tweet, advised in a letter that Montoya should not undergo the FCE. The hearing was deferred so that the Board could obtain additional medical records and the letter indicating that Montoya should not participate in an FCE. The letter, dated January 20, 2022, indicated that Dr. Tweet was treating Montoya for spontaneous coronary artery dissection and advised that Montoya should not complete the FCE, which Dr. Tweet noted was described as lasting 3-4 hours with a variety of maximal aerobic and strength protocols. Additionally, a medical record from Dr. Tweet dated October 27, 2021, indicated that Montoya, apparently describing the FCE, described "a lengthy physical exercise evaluation that her work would like to perform on her." The record indicated that Dr. Tweet advised Montoya that she would not recommend participating in the evaluation "without appropriate medical (cardiologistlevel) supervision or immediate emergent staff services" and that "[i]t would be better to determine which tests that can be performed in the clinical setting would be acceptable alternative since the appropriate safety measures will be in place."
¶ 6 The IMRF provided Dr. Tweet's letter and additional medical records to Dr. Alsafwah for review. It asked Dr. Alsafwah if the letter and medical records support the conclusion that Montoya should not undergo an FCE and whether the additional documentation changed his prior opinion. Dr. Alsafwah opined that the medical records and Dr. Tweet's letter supported the conclusion that Montoya should not undergo an FCE. He stated that given Montoya's extensive cardiac history and her ongoing symptoms, especially with exertion, the risks did not justify moving forward with an FCE. Dr. Alsafwah opined that Montoya could engage in sedentary work that does not require physical exertion, as Montoya's symptoms occurred largely with exertion. He stated that "if [Montoya] by law is required to undergo an FCE to perform sedentary work alone, then [she] meets the criteria for being totally and permanently disabled because there are too many risks to [her] health if she were to move forward with the FCE."
¶ 7 The IMRF also had Dr. Dan Fintel, a board certified cardiologist and professor of medicine at Northwestern University, conduct an independent review of Montoya's medical records, as well as an independent medical examination. Dr. Fintel agreed that Montoya should not undergo an FCE. Dr. Fintel opined that "from a cardiac perspective, [Montoya] is not totally and permanently disabled as defined by section 7-150 of the Illinois Pension Code, given that she would be able to engage in gainful activity as long as it does not involve physical exertion." Dr. Fintel indicated that Montoya would be able to perform gainful activity if it did not require her to walk and that it was physical exertion that brought on her physical symptoms.
¶ 8 A vocational rehabilitation consultant, Robert Wegman, stated that according to the IME by Dr. Fintel, Montoya had residual functional capacity for full-time work in the sedentary strength category. He stated that a transferable skills analysis was performed, which took into account medically defined restrictions and limitations from various physicians and that records from Montoya's various physicians were utilized. Wegman opined that, based on Montoya's education, training, skills, abilities, work history, and medically-defined physical functional restrictions, Montoya was suitable for the following occupations (1) customer service representative; (2) customer complaint clerk; (3) order clerk; (4) data entry clerk; and (5) charge account clerk. Wegman further determined that these occupations exceeded the Social Security Administration's gainful activity criteria and that the occupations could be found in high numbers as remote/work from home positions, which would reduce workplace stressors and any required physical exertion, including walking or standing.
¶ 9 Dr. Gray provided the Board with a letter dated November 16, 2022, stating that Montoya "is disabled and is unable to work in any capacity. I don't understand what the problem is with her case in terms of granting her a disabled status." The letter set forth Montoya's various diagnoses and stated that she was "unable to work on a regular basis due to these multiple diagnoses that limit her breathing and cause chest pain with minimal activity." Dr. Gray also indicated that it was dangerous for Montoya to drive.
¶ 10 Dr. Sangita Deveshwar, one of Montoya's cardiologists, provided a letter dated December 12, 2019, stating that "Due to the severity of [Montoya's] diagnosis and subsequent symptoms she is unable to work." In addition to the letter Dr. Tweet provided regarding the FCE, she also completed a questionnaire in approximately April 2022, regarding Montoya's conditions, wherein she indicated that Montoya was able to drive. In response to a question asking when she anticipated Montoya would be able to return to work to any gainful activity with restrictions, Dr. Tweet wrote "unknown at this time." Dr. Tweet responded "[n]ever" to a question asking when she anticipated Montoya would return to work to any gainful activity without restrictions.
¶ 11 After receiving additional medical records and documentation from Montoya's treating physicians and the opinions of Dr. Alsafwah, Dr. Fintel, and Wegman, the Board's benefit review committee heard the matter on November 17, 2022. The committee recommended denial of Montoya's application for total and permanent disability benefits. The next day, the Board voted to deny Montoya total and permanent disability benefits. Montoya appealed the Board's decision. The circuit court reversed the Board's decision. The Board appeals.
¶ 12 II. ANALYSIS
¶ 13 The Board argues that the record contains evidence to support its decision that Montoya was not totally and permanently disabled under the Illinois Pension Code (Code). The Board argues that because there was evidence to support its decision, such decision is not against the manifest weight of the evidence.
¶ 14 In order to be considered totally and permanently disabled under the Code, a person must be "unable to engage in any gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or be of a long continued and indefinite duration, other than as a result of self-inflicted injury or addiction to narcotic drugs." 40 ILCS 5/7-150(a)(1) (West 2018). The Code provides that judicial review of the Board's decisions is governed by the Administrative Review Law, 735 ILCS 5/3-101 et seq. 40 ILCS 5/7-220 (West 2022). On appeal in such cases, we review the Board's decision, not the decision of the court. Thomsen v. Village of Bolingbrook, 2023 IL App (3d) 220365, ¶ 44. When the question presented on appeal is one of fact, we apply the manifest weight of the evidence standard of review. Hadler v. Board of Trustees of the Illinois Municipal Retirement Fund, 2018 IL App (2d) 170303, ¶ 24. "A decision is against the manifest weight of the evidence only when the findings appear to be unreasonable, arbitrary, or not based on evidence or when an opposite conclusion is apparent." Thomsen, 2023 IL App (3d) 220365, ¶ 46.
The dissent asserts that this matter involves a mixed question of law and fact and thus, the clearly erroneous standard of review applies. However, as in Hadler, "the parties essentially dispute whether the facts support the Board's determination that the plaintiff is able to engage in any gainful activity. This is a question of fact, subject to the manifest-weight standard." Hadler 2018 IL App (2d) 170303 ¶ 24.
¶ 15 The Board based its decision that Montoya was not totally and permanently disabled, but was capable of sedentary work, on the medical opinions of cardiologists, Dr. Alsafwah and Dr. Fintel. The Board further based its decision on the opinion of Wegman, a vocational rehabilitation consultant, that Montoya was suitable for various occupations which would meet the threshold of gainful employment and that there were jobs available in these occupations, many of which could be done remotely. Although there was some contrary evidence available-Dr. Gray's and Dr. Deveshwar's opinions that Montoya was disabled and could not work-we cannot say that the Board's decision to accept the opinions of Dr. Alsafwah, Dr. Fintel, and Wegman and conclude that Montoya was not permanently and totally disabled was unreasonable or arbitrary. Further, we cannot say that the opposite conclusion-that Montoya is totally and permanently disabled-is apparent. Specifically, two board certified cardiologists opined that Montoya could perform sedentary work. One of the contrary opinions was from Montoya's primary physician, Dr. Gray, who is not a cardiologist. Further, Dr. Gray's letter expressing his opinion that Montoya could not work, did not provide any discussion as to why she could not perform sedentary work. Additionally, Dr. Deveshwar's letter provided only a conclusory statement that Montoya could not work due to her symptoms and conditions but did not provide any explanation, let alone an explanation as to why she could not perform sedentary work. Notably, Dr. Tweet did not provide an opinion that Montoya could never return to work with restrictions in place.
¶ 16 Further, we note that Montoya places great weight on the fact that none of the doctors believed she should participate in an FCE. However, contrary to her arguments, participating in an FCE is not a requirement under the Code. See 40 ILCS 5/7-150(b)(4) (West 2018) (requiring claimants to submit to a reasonable physical examination at the request of the Board). Additionally, the form seeking authorization for the FCE specifically noted that the exam could be 3-4 hours in length and that it would be testing Montoya's physical limits in various areas. All of the doctors agreed that it is physical exertion that posed a risk to Montoya's health and therefore, it is logical that they would not agree to have those limits tested. That does not mean that she cannot do sedentary work that does not entail physical exertion, as both Dr. Alsafwah and Dr. Fintel opined. Both doctors reviewed Montoya's medical records and Dr. Fintel also examined Montoya. In light of such review and exam, along with the fact that both are board certified cardiologists, we cannot say that the Board's decision to accept their opinions, despite Montoya not participating in an FCE, was unreasonable or arbitrary.
The Social Security Administration's 2019 decision, wherein it found that Montoya was disabled, also found that she had "the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a)," with the exception of a few specific activities but that considering Montoya's "age, education, work experience, and residual functional capacity, there [were] no jobs that exist in significant numbers in the national economy that" Montoya could perform.
¶ 17 In sum, there was no legal requirement that Montoya undergo an FCE and there was enough evidence supporting the Board's decision that Montoya was not totally and permanently disabled, such that we cannot say its decision was against the manifest weight of the evidence. Thus, the circuit court should not have overturned the Board's decision. We therefore reverse the circuit court's judgment and affirm the Board's decision.
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Du Page County is reversed and the Board's decision is affirmed.
¶ 20 Circuit court judgment reversed.
¶ 21 Board's decision affirmed.
¶ 22 PRESIDING JUSTICE McDADE, dissenting:
¶ 23 I respectfully dissent from the majority's decision to affirm the Board's decision that denied Montoya permanent disability benefits.
¶ 24 In an appeal brought under the Administrative Review Law, we review the decision of the agency, not the decision of the circuit court. Hadler, 2018 IL App (2d) 170303, ¶ 23. The standard of review applicable to the appeal depends on the question presented. Factual findings of the agency will not be disturbed unless they are contrary to the manifest weight of the evidence. Id. The agency's conclusions of law are reviewed de novo. Id. Mixed questions of fact and law are subject to the clearly erroneous standard, which results in reversal of the agency's decision only if our review of the record leaves us with the definite and firm conviction that a mistake was made. Id.
¶ 25 I disagree with the majority that the appropriate standard of review is the manifest-weight standard. Supra ¶ 14. This case involves a challenge to the Board's determination that Montoya was not permanently disabled under the Pension Code. That determination was a legal conclusion made pursuant to section 7-150(a) of the Pension Code (40 ILCS 5/7-150(a) (West 2020)). However, to arrive at that legal conclusion, the Board necessarily had to assess whether Montoya was able to engage in any "gainful activity" under section 7-150(a) (id.), which involved weighing the evidence presented by both sides. Thus, I believe our review of the Board's decision in this appeal presents a mixed question of fact and law, thereby requiring clearly erroneous review. See Hadler, 2018 IL App (2d) 170303, ¶ 23.
¶ 26 Section 7-150(a) of the Pension Code provides:
"A participating employee shall be considered totally and permanently disabled if:
(1) He is unable to engage in any gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or be of a long continued and indefinite duration, other than as a result of selfinflicted injury or addiction to narcotic drugs;
(2) The Board has received a written certification by at least 1 licensed and practicing physician stating that the employee meets the qualification of subparagraph 1 of this paragraph (1)." 40 ILCS 5/7-150(a) (West 2020).
The majority recognizes that section 7-150(a) applies in this case. Supra ¶ 14. However, confoundingly, the majority does not (1) acknowledge that "gainful activity" is left undefined by the Pension Code, (2) provide the definition the Board itself adopted to define "gainful activity," or (3) cite to any cases that have interpreted this law and applied it.
¶ 27 The Board has adopted a resolution defining "gainful activity":
" 'gainful activity' for purposes of Section 7-150 of the Illinois Pension Code shall mean whether the applicant, at the time of his or her application for total and permanent disability, is capable of obtaining potential employment in any occupation or position under which the applicant has the ability to earn at a minimum the monthly Social Security gainful work activity earnings limitation. In making this gainful activity determination, consideration shall be given to an applicant's education and work experience although the determination of whether an applicant is able to engage in gainful activity is not limited to employment in the field where the applicant had previously worked, studied or trained. In addition, in making this gainful activity determination, the geographic availability of gainful activity shall not be considered. In certain cases, at the discretion of IMRF, a vocational expert may be used to make the determination of whether an applicant is unable to engage in any gainful activity as herein defined due to any medically determinable physical or mental impairment which can be expected to result in death or be of a long continued and indefinite duration, other than as a result of selfinflicted injury or addiction to narcotic drugs. An impairment which is considered remediable does not qualify as a total and permanent disability if, with reasonable effort and safety to the applicant, the impairment can be diminished to the extent
that the individual will not be prevented by the impairment from engaging in any gainful activity as defined herein." Illinois Municipal Retirement Fund Board Resolution No. 2016-02-08 (approved Feb. 26, 2016), available at https://www.imrf.org/en/about-imrf/board-resolutions/disability-benefits/br-2016-02-08.
¶ 28 In applying the law to the facts of this case, I find Hadler to be instructive. There, the Second District reversed the Board's decision that denied the plaintiff permanent disability benefits. The Hadler court noted that the Board is not required to give the opinions of the plaintiff's treating physicians more weight than the Board's own experts. Hadler, 2018 IL App (2d) 170303, ¶ 30. However, the Hadler court found it significant that the Board's main expert had not explained the basis for his opinion that the plaintiff was not permanently disabled. Id. The other evidence the Board relied on in Hadler was similarly criticized by the Second District, including the evidence's insufficient consideration of limitations that would have to be placed on the plaintiff's employment. Id. ¶¶ 31-32. Additionally, the Hadler court noted a stark distinction between the specificity contained within the opinions of the plaintiff's treating physicians and the experts relied upon by the Board. Id. ¶¶ 33-34.
¶ 29 Like the Hadler court, I find it significant in this case that none of the Board's experts actually treated Montoya. While Dr. Fintel did conduct an in-person, "independent medical evaluation" of Montoya on June 22, 2022, he never treated her. In contrast, Montoya's treating physicians clearly had sounder, more specific bases for their opinions. Additionally, I find it significant that the FCE was initially required by the Board, but that requirement was later rescinded. In fact, the decision to forgo the FCE came after Montoya's treating physicians recommended to the Board that she not undergo the FCE. Those opinions were enough to convince the Board's nontreating physician to recommend that the Board rescind its FCE requirement. This is a significant consideration when assessing the expert opinions presented to the Board.
¶ 30 I also question the significance of the report compiled by the "vocation consultant." Regarding work limitations, while it indicated that the vocation consultant reviewed records from physicians who treated Montoya, the report appeared to focus on the work limitation recommended by nontreating physician Dr. Fintel, who opined that Montoya could perform sedentary work if she did not have to walk. There was evidence from a treating physician that Montoya could neither stand nor sit for significant periods of time. Even assuming, as the vocation consultant did, that remote/work-from-home positions would be available in the five recommended occupations, the report's discussion of whether appropriate limitations could be placed on those positions for Montoya was more conclusory than it was thorough.
¶ 31 Under the circumstances of this case, I would find that the Board's decision was clearly erroneous. Accordingly, I dissent.