appellate there's two reasons why at the agency level the retirement board denied daniel paine's application for duty disability and the first one was that the board determined that payne could perform payne the reason why he couldn't resort to return to work was that according to the board the his disability was a direct result of his refused to have the surgery what i want to do this warning is focus on just the first issue and the reason why i'm doing it is authorized under the law to deny or just someone's benefits because they disagree with the health decisions that that person made so and lucchese i noticed and i submit it's identical or as we say on all fours with this case it's not even referred to in the at least so it seems to me that the real issue before the court is whether nat the board was correct when it determined that payne could go back to work as deputy district chief because his shoulder was a flying to perform th job and that decision was wrong and it was manifestly erroneous based on the evidence in the record and the case law that pension statute here requires that when someone applies for duty disability that they prove facts one that the applicant is disabled and two that the disability was caused by an injury occurred in or resulting from an active duty and those two elements are set forth right in the statu do get the cancer unfortunately the chicago fire department doesn't have light duty positions for firemen are people who can return to work with the with the shoulder condition of limits to build their ability to carry weight or to still wanted to work up until the time when he doesn't know it wasn't for me but a maybe maybe when you're fighting fires for all those years although he agrees that justice got to him he didn't want to retire he want to keep working until he was required by the law to retire so but the point is in this record there is no evidence or no there was never an indication or move by the fire department offer pain a kind of accommodation and they just don't do that and i would note by the way that rare that's true the record to silent on me daniel payne was on medical leave for one year and when his doctor said he could not perform the functions of a firefighter he applied for a duty disability pension led the f payne was injured and when he was asked by mr pelly about what deputy district chiefs do one of his answers was they respond to fires and they respond to the biggest fires in other words if a battalion chief calls in what they call the legal uses we call in a box which fire supervision direction is when you're well i don't think that's true if you're in the firing of people working your command out or moving around i mean i guess the point is in the fire department there when these folks show up to the cedar fire they're there to to help if need be and what if all heck broke broke loose and building started falling apart and people running if ten dooper or dan payne was standing there they would be expected to pitch in to help injured people to move ladders to move closer stay in something is that in the record promoted and he started doing the travel to close administrative functions but it includes all the things that he said he did which include by the way on may tenth two thousand and nine i mean the scene administrator or a bureaucrat when he's twelve feet up on a ladder supervisor much of your company was a supervisor yeah he's up on no ladder and he's during a training exercise which is what he's supposed to do and when a call comes in for the crew to respond to a real fire not a training exercise according capable of performing the firefighters job right would suggest to firefighters how did you see that you know i just think when i think with this job it's not accurate to say that deputy district chief shouldn't also be able to fight fires when he's at the scene of a fire shouldn't isn't the standard though i mean what's mandated under his job description well that is that there is no written job description for the position of deputy district chief that's what that's what pain testify to it accurate description of what you do and he read it on the record and he said this is about sixty or seventy percent of what i do this is not accurate it was up a posting issued by a different city agency when apparently there was an opening for this position some time after the call description that's correct and even if you want to look at that document you look in there and there are a lot of things that are administrative in nature that that someone with their job would have to do but it it's also true that that job says you're supposed to be at the scene of his maps or errancy rescues and respond to fires and in it you know the one up highest ranking person on the scene of a fire is present i submit that the public policy and common sense indicates that we should expect that that person is going to do everything possible to pitch in and to fight a fire and to do everything that's physically necessary not to stand there and these guys aren't in business suits or not dressed in in casual attire they're dressed in all the gear that the it's not possible to say if something's torn or partially torn or not torn of all but based on the symptoms here his treating doctor who saw him for many months said he had a partial rotator cuff here and by the way that injury and i don't think there's any dispute in this case that he's legitimately injured when he went for his functional capacity valuation on november fourth two thousand and nine that record that document from at reticle was very very clear that he was giving it his best you know that test is designed to and then pain is not there and you know he was he was doing everything possible to try and succeed they even commented on the effort he was making but he can't according to st position he cannot lift to give us something in this record so you have pains testimony the person who was injured the person who had to strap foremost a decade or a little bit less than a decade when he was making separation he described what his job was and you also have clear from the record that this particular document the six of the fifteen was tendered to the applicant and the date of the hearing and the other point i want to point out here one of the ex official members of this board is the deputy commissioner of the fire department his name is stewart he was present for the hearing according to not on the court reporter's notes you can see who's actually present he does not vote and he doesn't ask any questions but if that person who's a member of the board had anything to say contrary to what payne was saying about the the nature of his job then then he would have said that and and i think we can get i think it's fair to infer that deputy fire commissioner stuart had nothing to say in opposition to pain in store by the way his name comes up by the way there's a case that was decided back in two thousand and three or two thousand and four by this court were stewart's name comes up before being the deputy fire commissioner he was the by any witness including anyone that can look at this exhibit fifteen and say yes this is accurate and this job is full the ministry of then the board has doesn't have the authority even under the manifest weight of the evidence standard to just you know ignore reject that testimony and the the final point i want to make it without i want to run into a time situation here but there's a point i want to leave the justices with there's something unique about this case when you look at the previous decisions from this court which even under the the deferential standard that we apply here this board has been reversed in the past in cases that were cited in my brief lucchese case sullivan big band scene at c i he and there's a case called wilford that's out there in the last ten or twelve years so even under the differential standard at replying here courts including this court has been willing to reverse findings of this board under the standard and in all of those cases what the question was about was the extent of the person's injuries like was the person really injured or the injured as seriously as they as they go on as they claim they were you can read the cases to see that this case is different because in this case it does not seem that the board is saying that he's not injured or that there's some problem with the functional capacity evaluation or there's some problem with the opinion of his treating physician dr model completely unworkable in fact impossible an intractable job for the board to determine ok this job deputy district chief we know you're going to be responding to fires because that's right in our own job description relying on but what about if comes in or someone of his rank the battalion chief was one rung below pain it does his job slides a little bit more towards the firefighter function as opposed to the to the supervisor and what about someone who's the next one down the line or going to the fire commission it was all over the news and i know it's not in the record but i think i'm within my rights to talk about something that's publicly known to people when the nato summit was here and the police were out on the street at michigan roosevelt it was all over national t the superintendent of police was out there in like a fifteen or twenty feet behind of the phalanx of men and women who were trying to stop the protests from getting wherever they wanted to go he's clearly an administrator or a supervisor but he's out there doing things that we expect leaders in these organizations to do and the public has the same right to expect that at the scene of a fight or be in pain and then anyone else in his rank is going to be up there in front not a block away on the radio or not you know giving directions and he could not perform right and i submit that the testimony from pain in the testimony from dover and the fact that when the fire department was sending pain to be tested the functional capacity valuation they were given him was for the job of firefighter  it just the fact of his injury on may tenth two thousand and nine when he's on a ladder twelve feet off the ground and he has to come down quickly to respond to another call if he could not go out and do they act with yourself the way he did to present a fall from ten or twelve feet and i just i think there's a reason why the statute is written so plainly requiring us to prove the fact of a disability in effect it was caused by an injury at work and that's the way the statute written and that's the way we should be interpret in these cases and not be having the board of this court determine whether or not this particular job pressure to do something because the next job that's one rung below you in the organization might require something different and you know these are paramilitary type organizations hastert of the fund for all of the participants and as the supreme court said m r carney that's the highest duty we have and that duty even takes precedence over the individual interpretation of the code in favor of the beneficiaries which mr pena so the board has a road for to share responsibility and in analyzing a case like this which i think we all agree this is a question of edged under the manifest weight of the evidence standard which means if there's competent evidence in the record to support the board's decision it must be affirmed even if the reviewing court would weigh it differently on at that report closely you will see that they actually put him through a series of simulations after that functional capacity evaluation climbing ladders pulling weight lifting things these were supposed to be simulations of what a fire fighter would do in the field and it said that he did all of those without any difficulties other than that his heart rate went up which is a question of conditioning not of limitations so the question became for the poor old ok can we manage his condition to his job duties and responsibilities as a deputy district chief now as a record makes clear from the testimony of mr payne there are some twenty three d c s in the department this is a higher one week there's firefighter there's engineer there's lieutenant there's captain there's battalion chief and then you get to the deputy district chief now i think we can all agree that as you go up those wrongs the responsibilities to change depending on the channel here the only written evidence  record is to write those job duties were so that the bird could match his physical capabilities to what his jab theories were is they're required to do under the pension called article six as justice counters pointed out six run twelve mandates that if you can't sure that you couldn't perform your assigned duties then you can't get a disability you have to show that they have the burden of proof in any event there's no that i am your honor and that job posting by the way is posted by the city of chicago all firemen are hired by the city of chicago they go through the hiring process of the human resources the postman of the fire the part of the city so that chad posting votes issued by the city's department of human resources is a posting for a deputy district chief in the chicago fire department and i can't tell you for sure there's written restraints as i sit here is to each of those different career service ranks i know from history at the front that there's always testimony at a minimum about what the job descriptions are in close to me that would be helpful but it certainly would be it certainly would be and i would add that the job posting description was put into evidence as a b addition to that i thought i'd like to just address briefly the put the testimony on this issue because i think it's important that the two people who testify that actually there were three people and they were the testified they have a deputy district chief does and i'm quoting almost from the transcript administrators do to his witnesses drills does critical manpower what does it mean that means he comes to the scene and he assesses it and testified at first of all he participates in training drills only voluntarily in other words if he chooses to go he's not work and secondly if he does go to a fire scene which there are certain ones he is required to go to i agree but he's now required to go to every fire see if he does go he said his duties are to organize the administrators strategize those are his words all of those words are consistent with the description that was in the chat posting so he did not testify for instance they had no i'm required if i see somebody in jeopardy in a burning building i have to go in called somebody from the department of human resources of the city to say hey here's what a deputy district chief is required to do it's not just what's in the posting he's also expected to do x y and z no done the suggestion that his silence means an assent to something simply can't be done because he didn't sign he didn't fill so he didn't assent to anything now i'm at school or the roof through people who voted no interest to me or enough two of them are firefighters true them city officials we would have to presume that firefighters who every day perform the strap wouldn't know what the responsibilities of a deputy district chief are they see it all the time in the field still in deference to propose to citizens making the food and responsibilities you have to give some deference to that that they nor the deputy district chief is required to with city officials the same thing i mean their city officials i presume they would have some knowledge as to what the deputy district chiefs are supposed to do finally and that your model his testimony is is just no support for granting a benefit based on this record i'd like to just briefly touch on this issue of the surgery only because it's it is related and i think it's important here because rich in heaven this is saying being told by two doctors will if this pain continues you probably have a small tear it could easily be remedied by an outpatient surgery arthroscopic which would be out for three to six months and you would rightly be able to go back to work so that's what he's told by two doctors and he says i don't want to do the surgery ok and on the one hand he says because he even though he's undergone two successful surgeries in the past it was on the record but he said he hood where somebody's head in the station had a bad outcome so now i don't want to do it because of me in a stage now i would agree that judging whether that's a reasonable basis to refuse surgery i mean you know on the scale of all of us being faced with that decision you know if somebody truly has heard of the experience or been through it ok so that's one reason i brought the second reason resin reasonable and the second reason was he said i guarantee i want to guarantee that when i have the surgery it's going to repair the tear and i'm going to be funny well what a doctor doc say i can't give you a guarantee what would any doctor say what does any professional say when they asked for guarantees that were not in the business of hiv and guarantees we just can't do it so his refusal to have surgery because he couldn't get a cure and t from a doctor a fraud and a surgery that everybody agrees to send about it model and ba surgery is the type of surgery that if you choose not to have it you're choosing disability over surgery and that should not be allowed so i'm at school at all it is an alternative basis of the funds decision it's not the only basis and the the the i'm sorry i'm forgetting the name of the case but i should know it well the just leave me one second case i remember will is quite to say most of those here for a number of reasons because ron the case he had a surgery and he wasn't doing this physical therapy after the surgery so that was the issue to dr model said that  couldn't say with any certainty that if you did the physical therapy it would repair you know his is stronger so you know basically said he was disabled so that's quite a different situation and we have here at the end of the day address the court to  rm the decision of the circuit court which we believe was cracked in affirming the decision of the bird and the bird's denial of the c application somehow as a policy or as a message to the firefighters out there that you know decisions could be determined based upon what your actual duties are and all that is not is not there's nothing wrong with that and that's not  and there is nothing unique about this case that's any different than any other case that come before the board where evidence is presented as to write your keep what your responsibilities are and then what your physical condition is to see if lot i'll be brief because dr model said payne cannot perform firefighting functions and yet there doesn't seem to be any disagreement between us that pains job as a deputy district chief is going to require him to go to his mates air and sea rescue incident and so according to the argument from the board the deputy district cheap should be able to show up at those cities but if they're asked by one of their colleagues or something of an emergency nature happens and they have to pitch in and do something physical then painter someone just this is supposed to do what just to see get around the fact that what i asked you before you think this is congress that is well what evidence did you put on to support your contention that the requirements of the job of the d c is different than his supervisor in the us or whatever it is that these people shouldn't have done that chertoff the question is at this point could we have presented a stronger case then yes but the question for this court now i'm not is that i'm just asking with my question is really narrow because caused by the job and that's when you read all the cases i cited them in my brief and i did earlier this morning all those cases i cited i don't think any of them have any kind of expert witness you have the epicenter the firefighter going in describing their job and the focus is has always been in those cases and the extent of the injury the medical records and the opinions about the about the the person's condition and here we're doing something different we're asked to describe a different standard or mr paine to go to the scene of a fire and if there's some need for him to do something physically which is very very possible i submit just using our own common sense and he's supposed to wave around the job description from city hall that it can't possibly be a just result in this case