Opinion
NO. 5-16-0186
10-19-2017
CRAIG SYKES, Plaintiff-Appellee, v. GRANITE CITY FIRE PENSION BOARD OF TRUSTEES, Defendant-Appellant.
NOTICE
Decision filed 10/19/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County.
No. 15-MR-251
Honorable John B. Barberis, Jr., Judge, presiding.
JUSTICE WELCH delivered the judgment of the court.
Presiding Justice Moore concurred in the judgment.
Justice Goldenhersh dissented.
ORDER
¶ 1 Held: The circuit court's order is reversed where some competent evidence exists to support the Board's findings that Sykes was permanently disabled but had failed to meet his burden that his current back condition was the result of an act of duty or the cumulative effects of an act of duty.
¶ 2 The petitioner, Craig Sykes (Sykes), was a firefighter for the City of Granite City for 19 years. He filed a claim with the defendant, the Granite City Fire Pension Board of Trustees (Board), for duty-related disability which would entitle him to a pension of 65% of his salary. After a hearing the Board agreed that he was unable to perform the duties of a firefighter, but claimed that his disability was not duty-related and that, therefore, he
was entitled to a pension of only 50%. Sykes filed a complaint for administrative review in the circuit court, which reversed the decision of the Board, holding that the Board's decision was against the manifest weight of the evidence. The facts pertinent to this appeal are as follows.
¶ 3 We will review the testimony and medical records considered by the Board in reaching its determination that Sykes did not show a causal connection between his firefighting and his current back injury, which occurred on February 6, 2015.
¶ 4 During Sykes' tenure with the fire department, he suffered several injuries, including duty-related and nonduty injuries. In February 2004, Sykes suffered a duty-related back injury while he lowered a patient into an ambulance. Sykes experienced back pain and intense leg pain in both legs. As a result, he received epidural injections and physical therapy.
¶ 5 On June 26, 2006, Sykes suffered a duty-related back injury while opening the hood of a burning vehicle. Following this incident, he returned to work with no restrictions on August 29, 2006.
¶ 6 In March 2007, Sykes was getting out of bed at the fire station when he heard a popping noise in his back followed by severe pain in his back and legs. There was no claim of a duty-related injury pertaining to this incident. Following months of epidural injections and physical therapy, Sykes had lumbar fusion surgery at L4-L5 in July 2007. On December 28, 2007, Sykes returned to work with no restrictions. The record demonstrates that throughout 2012 and 2013, Sykes suffered from ongoing back pain. Sykes was evaluated by and received treatment from Dr. Kennedy, a neurosurgeon, and
his chiropractor, Dr. Eavenson. An MRI showed bulging disks at the thoracic spine, which caused Sykes to experience shooting pain from the mid-back to mid-sternum. As a result, Sykes was off of work for approximately two months.
¶ 7 In July 2014, Sykes complained of back pain but believed the source of pain was related to kidney stones, of which he had a long history.
¶ 8 On September 3, 2014, an MRI of Sykes' lumbar spine showed multilevel degenerative disc disease and lumbar radiculopathy. At that time, Dr. Eavenson instructed Sykes to take time off of work, for which he did from September 2014 through February 2015, while he had repeated chiropractic manipulations.
¶ 9 On January 8, 2015, Dr. Blake, who had performed Sykes' epidural injections, noted that joint injections would assist him in returning to work, with March 1, 2015, as a desired start date.
¶ 10 On February 2, 2015, Sykes' requested, and was provided with, an updated work release slip to return to full-time work with no restrictions on February 6, 2015, by Dr. Eavenson.
¶ 11 On February 6, 2015, Sykes' first day back to work, he was injured while responding to a fire. Sykes was ascending up a flight of stairs to the second floor when he reached around to his left, while bent over, to grab a water-filled fire hose. At that time, he felt a sudden pain in his lumbar back with radicular pain in his legs. Sykes was unable to continue work. Sykes was referred to a pain management specialist.
¶ 12 On February 24, 2015, Dr. Gornet, Sykes' treating physician, reviewed the MRI taken on February 10, 2015, and indicated that he believed Sykes had an annular tear at
L5-S1. However, Dr. Gornet noted that "this study is directly compared to his previous MRI dated 09/03/2014; I see no dramatic change." Regardless, Dr. Gornet concluded that Sykes had experienced an aggravation of his previously compromised lumbar spine, which rendered him unable to continue to serve as a firefighter.
¶ 13 On May 26, 2015, Sykes filed an application for a line-of-duty disability pension, as a result of the February 6, 2015, injury.
¶ 14 As required by statute, Sykes was required by the Board to submit to examinations by Dr. Kibby, Dr. Homan, and Dr. Malak, pursuant to the Firefighter's Pension Fund Act. 40 ILCS 5/4-112 (West 2012). The three physicians' opinions, testimony, and determinations, as contained in the record, are as follows.
¶ 15 On July 7, 2015, Dr. Kibby performed the first independent medical examination at the Board's request, finding that Sykes was permanently disabled as a result of the cumulative effects of his back injuries and treatment. Dr. Kibby found Sykes' statement that he was fully functional to return to work on February 6, 2015, as Sykes had claimed, was not supported by his medical record. Dr. Kibby concluded that Sykes' current back pain was not a result of the February 6, 2015, incident, but that the injury was "at most a minor aggravation."
¶ 16 On July 9, 2015, Dr. Homan performed the second independent medical examination at the Board's request, finding that Sykes was disabled. Dr. Homan determined that the February 6, 2015, incident was not a "new" work injury. Rather, Dr. Homan concluded that Sykes' back condition preexisted the February 6, 2015, incident, given the five months, which immediately preceded this incident, for which he did not
work. Additionally, Dr. Homan noted "whether or not over the long-term his multilevel degenerative dis[c] disease has a causation in his work, I would not be able [to] say that it does not. Obviously, this patient has done heavy strenuous work for many years. It is entirely possible that if this patient were not a firefighter, he would not be having the back problems that he is having today." Dr. Homan further noted that Sykes' "duties as a firefighter over the years had a large part to play in his current back condition ***."
¶ 17 On July 10, 2015, Dr. Malak performed the third independent medical examination at the Board's request. Dr. Malak concluded that Sykes was permanently disabled due to a nonoccupational degenerative disc disease. Dr. Malak indicated that Dr. Eavenson's February 2, 2015, progress note that released Sykes to work made "no mention *** of any testing or functional capacity evaluation or any attempt to evaluate if Mr. Sykes can lift or perform the listed work requirements." Sykes stated to Dr. Malak that Dr. Eavenson had not performed a functional capacity evaluation and that some lifting, pushing, and pulling determinations had been performed. Dr. Malak noted that no particular change existed when comparing MRIs, as indicated by Dr. Gornet. Additionally, Dr. Malak believed that Sykes' injury was not duty-related, given the significant period of time he had off of work, just prior to the most recent incident, for a non-duty-related injury. Dr. Malak stated that had Dr. Eavenson performed testing or a functional capacity evaluation, it would have been easily demonstrated that Sykes was not ready to return to full-duty work on February 6, 2015.
¶ 18 On August 24, 2015, the Board held proceedings for Sykes' disability application. At the hearing, Sykes testified that at the time Dr. Eavenson released him for work on
February 2, 2015, he had no back pain. Sykes testified that he had no back pain when he arrived at work on February 6, 2015, and that before he injured himself he had climbed 50 flights of stairs for his daily workout. At the scene of the fire, Sykes testified that with much force he "reached around to grab a hose that was charged and felt some pain in my back and my legs."
¶ 19 Upon cross-examination, Sykes was asked why he chose to disregard Dr. Blake's opinion to return to work on March 1, 2015, and allow Dr. Eavenson to approve his work release on February 2, 2015. Sykes responded that he was no longer in pain, and that March 1, 2015, was a tentative date to return to work.
¶ 20 On September 11, 2015, the Board unanimously voted and a final decision was filed to deny Sykes' request for a line-of-duty disability pension. The Board found that Sykes was permanently disabled from performing all duties with the fire department, but that his current condition was due to his degenerative condition and not the result of an act of duty, or cumulative effects of an act of duty. However, the Board awarded Sykes a nonduty pension at 50% his salary pursuant to section 4-111 of the Illinois Pension Code (Code) (40 ILCS 5/4-111 (West 2012)).
¶ 21 On October 6, 2015, Sykes filed a petition for administrative review regarding the Board's denial of his application for a line-of-duty disability pension.
¶ 22 On April 21, 2016, the circuit court found that the Board's denial of Sykes' line-of-duty pension application was against the manifest weight of the evidence. In reaching this conclusion, the court reviewed medical records from the three physicians who had evaluated Sykes following the February 6, 2015, incident. Ultimately, the court found
that Sykes had incurred injuries in the line of duty which had caused him permanent disability for service in the fire department. Thus, the court established that Sykes was entitled to a pension under the Code. 40 ILCS 5/4-110 (West 2012). The Board filed a timely notice of appeal on May 2, 2016.
¶ 23 Sykes' prior, degenerative condition in his lower back is not disputed, as he was diagnosed in October 2014 with lumbar degenerative disc disease and lumbar radiculopathy. The central issue on appeal is whether the Board's refusal to grant Sykes a 65% disability pension was against the manifest weight of the evidence. In reaching this determination, we need only decide whether there is competent evidence to support the Board's decision that Sykes' disability was due to the degenerative changes in his lower back and not due to the performance of his duties as a firefighter. See Evert v. Board of Trustees of the Firefighters' Pension Fund of the City of Lake Forest, 180 Ill. App. 3d 656, 659 (1989). More specifically, the issue is whether it was against the manifest weight of the evidence for the Board to find that the February 6, 2015, injury did not aggravate a preexisting physical condition, thereby barring claimant from a "line-of-duty" pension.
¶ 24 On appeal, we review the decision of the administrative agency, not that of the circuit court. Jensen v. East Dundee Fire Protection District Firefighters' Pension Fund Board of Trustees, 362 Ill. App. 3d 197, 202 (2005). It is not the duty of the reviewing court to reweigh evidence, but rather it is the court's duty to ascertain whether the findings and decision of the administrative agency are against the manifest weight of the evidence. Scalise v. Board of Trustees of the Westchester Firemen's Pension Fund, 264
Ill. App. 3d 1029, 1033 (1993). An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Scalise, 264 Ill. App. 3d at 1033; Evert, 180 Ill. App. 3d at 660. The mere fact that an opposite conclusion is reasonable or that the reviewing court might have ruled differently will not justify reversal of the administrative findings. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 534 (2006).
¶ 25 Section 4-110 of the Code provides a firefighter with special disability pension when the "firefighter, as the 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, is found, pursuant to Section 4-112, to be physically or mentally permanently disabled for service in the fire department, so as to render necessary his or her being placed on disability pension ***. A firefighter shall be considered 'on duty' while on any assignment approved by the chief of the fire department, even though away from the municipality he or she serves as a firefighter, if the assignment is related to the fire protection of the municipality." 40 ILCS 5/4-110 (West 2012).
¶ 26 The evidence in this case consisted of the testimony of Sykes and the reports of Drs. Kibby, Homan, and Malak, as well as progress notes by Drs. Gornet and Eavenson.
¶ 27 Although the Board found that Sykes was disabled, the Board concluded that Sykes had failed to prove that the February 6, 2015, injury was the cause of his disability. Based on the record, it is clear that Sykes suffered from a long, extensive history of lower and thoracic back pain. However, we find that competent evidence in the record did exist to support the Board's findings. Thus, we cannot conclude those findings are clearly
erroneous. Here, all three doctors did in fact deem Sykes permanently disabled. Drs. Homan and Malak found it instructive that Sykes was completely off of work for five months, had been diagnosed with degenerative disc disease roughly four months prior to the February incident, and had been undergoing ongoing treatment for chronic back pain and radicular symptoms just prior to the date of his injury.
¶ 28 Additionally, a comparison of the MRIs dated September 3, 2014, and February 10, 2015, showed no significant change, as indicated by Dr. Gornet-a conclusion relied upon by Drs. Kibby, Malak, and Homan in forming their conclusions. We cannot find the Board's finding was erroneous where it determined that this lack of change following the February 6, 2015, incident "could not reasonably be the cause of Mr. Sykes['] disability," and further bolstered the Board's determination that the medical record did not support Sykes' statement that he was fully functional before returning to work on February 6, 2015. Moreover, the record indicates that Dr. Eavenson's notes did not include the required functional and capacity testing to release Sykes back to work. Likewise, the Board indicated that Dr. Eavenson released Sykes just days after he had written in a January 26, 2015, progress note that Sykes' "pain is aggravated by all movements, especially with left lateral bending." The Board clearly relied upon this note in forming its conclusion that, first, Sykes was not fully functional on February 6, 2015, to return to work, and second, a new injury did not occur that day, but that he had not fully recovered from a non-work-related injury for which he had been previously receiving treatment.
¶ 29 Furthermore, it is likely that the Board had potential credibility issues with Dr. Gornet's statements. Dr. Gornet indicated on June 22, 2015, that he believed Sykes injured himself in a duty-related accident on February 6, 2015, by aggravating his underlying condition. However, in that progress note he made several incorrect statements in support of this position. In particular, Dr. Gornet stated that Sykes had been working full duty without restrictions prior to the February 6, 2015, injury and that he was not being treated prior to that date. Based on the record, those statements are clearly false, as the medical record states that Sykes was completely off of work for several months while undergoing treatment for his chronic back pain just prior to the February 6, 2015, incident.
¶ 30 A close review of the record compels us to conclude that Sykes has not met his burden of proof. Since there is some competent evidence in the record to support the Board's findings, we cannot say that those findings are erroneous and that the opposite conclusion is clearly evident. It is not sufficient that an opposite conclusion might be reasonable. Evert, 180 Ill. App. 3d at 661. Therefore, we reverse the judgment of the circuit court reversing the Board's decision.
¶ 31 The judgment of the circuit court of Madison County is reversed.
¶ 32 Reversed.
¶ 33 JUSTICE GOLDENHERSH, dissenting:
¶ 34 I respectfully dissent. In my view, the record, including the testimony of Sykes, clearly shows that the decision of the Board was against the manifest weight of the evidence. The recitation of various aspects of the doctors' testimony clearly shows a cumulative back injury directly related to various incidents in Sykes' 19-year history as a firefighter, and not, as the majority opinion would imply, a preexisting back condition unrelated to Sykes' duties and activities as a firefighter. Sykes' disability, which is not contested, is a result of his various acts of duty over his firefighting career and qualifying as a contributing and/or exacerbating factor. Luchesi v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago, 333 Ill. App. 3d 543 (2002). Both Dr. Homan and Dr. Kibby indicated that Sykes' current disability was due to the cumulative effect of prior back injuries he incurred in his firefighting duties. None of the medical experts contested that Sykes was permanently disabled as far as performing those duties, and all further agreed that the injury Sykes suffered while discharging his duties resulted in his presently being permanently disabled from service.
¶ 35 Under the circumstances, furthermore, the majority, in and of itself, undercuts the Board's conclusion. The majority indicates the Board relied on the doctor's note indicating that Sykes' "pain is aggravated by all movements, especially with left lateral bending." The opinion that the normal activities of life, such as bending, would aggravate a condition actually strengthens the circuit court's opinion and the opinion I express in this dissent that Sykes' cumulative disability was caused for the major part by his discharge of his duties as a firefighter. As noted in the record, Dr. Homan and Dr. Kibby directly related Sykes' disability to the cumulative effect of prior back injuries that
were work related and in the line of duty. The Board, in my opinion, clearly erred in its determination which was against the manifest weight of the evidence and the record before our court.
¶ 36 Accordingly, I would affirm the decision of the circuit court overturning the determination of the Board.