you for joining us on this platform this morning when you are not speaking we would ask that you go to mute mode so that we have even less interference but  our best to stay with you and is completed so with that ms wrestler are you ready to proceed i am here honor all right you may do so may please the court counsel my name is kris of the statute one is the applicant a police officer two was he a police officer at the time of injury three did he encourage an accident or injury incurred in or resulting from the performance of an active duty and for was he unable to return to duty the facts in this case are disputed whereby we asked the court to use the manifest weight of the evidence standard when reviewing this case this wrestler are you now agreeing because i don't believe it was an agreement in the trial court are you agreeing that he has filed this while he was a police officer yes we understand where the trial court was coming from and we are not appealing that issue thank you that that stat that solves some problems in an organization i appreciate that yes so he has matched that he is an apple came to as a police officer and he was a police officer at the time of injury so what is at issue is the three and four problem that i mentioned before in regards to this accident and october t sentenced that is to the issue of disability you are alleging are arguing that there's a negative assessment of his credibility so that you i am arguing that he is he's not credible not to say well the pension board found that because he was not credible that all of his subjective complaints to the police to the that i am  three times in the final irony he did say that he was able to return back to medium capacity which is let's not right there though we recognize i suppose there's a law that says the board could adapt the testimony  the exclusion of five other doctors had a different opinion correct correct and also three independent medical experts also said he was the safe correct that is correct so because obviously the board can elect to rely solely on craft not withstanding all these other opinions but i'm focused on grass opinion because prior to surgery gra certainly stated that strong should be able to return to full duty police work but his opinion of volved after the surgery and as i understand his opinion after the surgery that he says  should be able to perform quote unquote medium physical workload but he further recommends an evaluation by act patient how functional could pass the exam and acknowledged the possible need for a  rd surgery so it seems to me that if you're going to ryan graph you have to rely on graph cost surgery not pre surgery and that seems a lot less certain well it is uncertain but it is based on the board to look at well the board is the ultimate arbitrator disability so they looked at all the other  circumstances around that where he was a security guard driving around target all the time and even though he testified that he has to call the police department you know if he was still put my understanding of that is that requires ultimately the ability to sustain a force of one hundred and fifty pounds on average so i mean there is no suggestion that he was doing anything like that either as new driver or as a target security man is not a fair assessment of the record it is a fair assessment the pension board also did witness him picking up luggage i know that we were not aware see as to what the weight was right but he was also he stated that he wasn't able to squat and he was able to squat in pick the luggage up and pick it up and put it into the back seat so there there is conflicting evidence as what  and cannot do you where is you mentioned in dr crafts he was able to perform you know three quarters squat but then in c e they said that he didn't even attempt to do the squats so there are you know the pension bo the board would be entitled to take graps opinion over the other experts but there's something a little bit unusual here did the board ever make any specific findings or set for any rationale at all as to why it  opinion was the most credible and persuasive in specifically no they didn't know they did not and in the finding of back when the be a little troubling we have so many experts on one side what are the other and there's no credibility of the plaintiff and how he was not credible you know on any given day and i think that's part of what some of the other doctors were talking about he and his own testimony then went to that on any given day he could do different things he might have been able to squat in ice on a certain day but on the day of the test he was not able to how w how are those taken into account because they were part of all of the doctor's testimony even dr graf you know on any given day it he could have done x y z but it wasn't that he was faking it lingering he was having an issue that day wasn't that an issue that came up i i apologize i don't recall if that was an issue that came up with well when it came up and whatever day he was feeling better than the other day i can't i can't state whether he was feeling better one day not feeling better the other day but but based on the totality of the circumstances the pension board to the to you know the he was able to do these things even though he testified that he could into these things so essentially this decision is is based upon you've said it the fact that they didn't believe some because of some prior incidents as well as what's happened in terms of testing here but and then you also mentioned that they were in the process possibly of filing grievances against him i assume it was for doing some sort of employment while he was otherwise on some benefits for the disability should those should the those considerations be a factor in these proceedings that there were other possible reprimands or something going on and and therefore the board applied those reasons which he did not have a chance to reply to to this particular proceedings well in this particular case  plaintiff did have the opportunity to respond to all the grievances which is the resignation agreement that the plaintiff's attorney prepared and he signed so he did have a chance and that was one of the things that the pension board did rely upon because instead of the plaintiff's attorney plaintiff just accepting the fact that he's not going to apply with the city the public safety employees my everyone states is that he went into specifics and specifically stated that the injury in question was not due to not due to the factors that which is not going after an offending not in the case of an emergency they went in to specific all factors let's assume that for the sake of argument this court were to find that the board was against a man a face mask when the evidence to say that there was no disability as it relates to the causation question and fifteen he went to see his st doctor four days later and there from the injury to up to january when he saw all of the other doctors he did not complain of the back and a back injury so that goes into causation the pension board found that you know he stated that he got an injury and x ray excuse me of the back at the lake forest hospital right when he was taken by the ambulance which there's no document saying that he was exit got an x ray or even complain about the back so took up to two and a half months for the pla ff to state that it was the car accident that caused the ban and again that goes to the credibility where the pension board found that he he was the only person that reported that the not credible the st part was with the testimony compared to his application for a disability the testimony stated that the day that he got in an accident he was attempting to he was driving past a driver in a passenger and he witnessed what was engaged in rolling one during that time he also failed to report any secondary employment other than that sigma security what he and his application he did not provide that he was also an employee of the other exhibits that conflicted  discussed previously was all of his discussion about how his back never showed any complaints until january he even with all of the doctors that he was seeing before january he made no complaints of the back what also was the pension board found troubling was in the  the all the reports in the police report the employer's investigative report and the medical records there was no discussion or explanation by the plaintiff that he was going after this alleged offender when he got in this one he got in this accident he was simply just driving his patrol car he didn't have his lights or sirens on he was he in the village yes was he driving a squad car yes you didn't have lights and sirens no did he have the right away yes there was a stat side somebody hit him how isn't that in the line of duty well that's that i mean you make a good point where there's tons of cases that conflict as to what is a line of duty which is why we're here  the one thing that we would ask the court to look at is the johnson case which is the supreme court case which held that importance is what capacity the police officer is acting when the assigned duties are similar to those involved in civilian patients the crux is the comparison in which the police officer is acting simply being on duty is not enough and with the pension board finding that he was simply driving a troll car we would ask that you can't place a police officer to in a line of duty or an active duty find that they are active duty just based on hypothetical causation issue it's a little bit different he may have been well the reaction however does that support that the accident caused his back injury that's really would be causation issue because about yes he had an accident but the cause is condition of all be that based on all the evidence they couldn't find they found a causal connection between the october th the three hundred and fifteen and where the plaintiff sits today there still is that question what what was his capacity at the time that he was hit and if his capacity was simply a patrol off they're driving now there's like there are case law you need to summarize because your time is up and you will have an opportunity for rebuttal thank you your honor i would just like to summarize that based on the credibility there is multiple evidence based on his testimony and exhibits that find that he is not credible and we ask for you to affirm the pension board's decision thank you thank you thank you mr read jack reacher i'm sorry if i'm pronouncing that wrong going off the justices questions i think i'm a jump right into it i mean this case this denial amounted to a pension board that simply didn't like officer strong and that's what they base their decision on their their credibility determinations is the failsafe basis that they utilized in an effort to deny his benefits as you can see from the record that the applicant's testimony was on or about it during the trial this matter in fact the credibility determinations that counsel talks about were only brought up for the st time at the circuit court level they were not put in the board's decision in order as to any basis for why they found him one credible and even if even if they did use the same credibility d determinations that counsel used in the circuit court those credibility determinations did not go to whether or not the officer was disabled and they did not go to whether or not there was causation between the duty injury and his disability so rash and the weight of the medical evidence seems to line up with your argument that he was the sick i mean we've gone over dr graham versus all the other medical experts who support  that mr stronger ups are strongly stable i think the morgue she was the causation because i think particularly and the an issue the credibility of opposite strong you know is a key factor according to the testimony the testimony the medical records certainly i think it's fair to say conflict as to when he began to experience the back pain so tell us why his credibility doesn't come into play and because if you owe his credibility he has been having ongoing pain since the date of the accident and at the lake forest hospital he also had an x ray done on his hip which as you know it is relevant to the back so and with respect to when you're in a car accident when you have shock to not all your symptoms become manifest that immediately you know he had other pains that he was experiencing at the same time in the oftentimes when there's a car accident or significant injury you isn't surprising i mean it would be nice if he complained immediately on my back and had treatment rendered immediately indicate the doctor preety was using aleve to try to alleviate the pain in his back since the day of the injury they ask you this it you know and he wasn't seen dr lee for for his back at that time and it's if he may not have been feeling significant back pain because of the other injuries that were more prominent at that time and that's common and i would point out just as the none of the i'm not of the physicians that evaluated officer strong found the delay in reporting the back pain to be of significance they all found him disabled and that the cause of his disability was that work related incident dr preach certainly the st doctor to evaluate him found nothing surprising about the fact that he was taking aleve and experienced experience at least you know some sort of pain in his back and what's more significant when it goes to credibility which is the objective evidence  the accident that was actually seen him specifically for the back injury and when you look at the totality of all the other doctors including dr graf which by the way the pension board never made a finding that they were d relying upon dr graf to deny this claim  and they never and there was no and nor nor could they because as justice brennan pointed out that dr graff never made a finding that the officer could return to work in any capacity he said he said he would rely upon repeated physicians to have found that there was a credibility issue with is the lay and what reporting pain or if there was some issue with respect to the accident you would expect that the i am me physician dr graf to point that out in his reporting never did in fact d graff and every report he has on the record which were numerous he says that the current condition is causally related to the work injury he says surgery is necessary and causally related to the injury and at no point does he say that either opined negatively as to causation or that he's not this able to look at dr realize that he says he's the stable and that significantly the three experts hired by the board all of them indicate that officer strong was the sable and all of them indicate that his disability was d caused by their work injury on october but he wanted to fight that thing hit me and back injuries often make it difficult to sit for extended periods of time but yet that's one of the things that he did i think for a target he he patrolled the parking lot correct he did judge that there was no evidence in the record as to how long he would do that or how long as ships were with respect to that or whether or not he his treatment after had any significant pain reactionary that there but what he what evidence was in the record was that what he was doing was within the restrictions of any of the treating physicians that he was saying he was not performing anything that was outside of those restrictions which is perfectly acceptable well they do unless you're getting paid a benefits which is the discipline that was that was brought up throughout this case which we feel they have the discipline is absolutely  irrelevant with respect to any credibility findings st of all have to discipline was from two thousand and nine or two thousand and eleven the officer was clearly working for want to strip the duties in two thousand and fifteen so that discipline didn't keep the employer from feeling he was a good officer to continue working for the department well i think this was really a smear campaign against off officer strong to make him look like a bad guy influence i mean the circuit court of this court to  the board's assessment of the credibility of the witnesses in the way to be given to the evidence is within the problem something or we defer to their credibility when you do judge it unless those credibility determinations have nothing to do with the issue at hand which is the disability or the causative nature and although they attempt to find some credibility issues st of all as i mentioned the board never made those findings it was counsel at circuit court but secondly those and unless there is historical facts that are not in dispute but that means in other words that we would in order to reverse the board decision we would have to conclude that in apas the conclusions the one reached by the board was clearly apparent the sec record that's correct judge  and we feel that the plaintiff has met his burden of establishing that here as there is zero evidence he was injured anywhere else there is there evidence that he's not the stable and can return to full under strict duties there is zero evidence to by any physician discounting causation with respect to the disability in the work injury on october th th and without the board having some evidence that they can point to demonstrate that this accident didn't happen the accident happened somewhere else or a physician finding you know the the problems with his back and the continuing to pain medication and his inability to lift the weight and perform the fu functions of a police officer was somehow related to some other incident you know that they may have an argument to say this is why we discounted causation we don't have any of that in this record they don't point to any piece of objective evidence in their findings and decision one of the circuit court for that matter if you see judge has been a moving target for the for the plaintiff in this matter st it was because he signed the settlement agreement and therefore he wasn't a police officer that that argument went out the window once it was the bond by the circuit court they haven't pursued that here and in the circuit court it was interesting the suitcase weighed fifty pounds or more that d he was lifting as part of his overdrive or now before this court they're saying well he can he was able to sweat when he when he lifted that suitcase which was unheard of at the lower court so there's been a constant moving target i think it's a matter of the floor trying to find an argument that will fit their narrative and unfortunately there's just no evidence to support it and that's why we think that this court should affirm the circuit court's reversal and in fact reverse the decision of the pension board and find in favor of officer strong the last point i'd like to make is i cited in my brief if that if the board was to rely upon any one specific doctor to deny this that he doesn't come the opinion that he's either not disabled or that there is no causation they have to articulate those findings so that this court can can review what that why they base their decision on that record and just nothing in the record to support their finding well lester what is the remedy then for failure to articulate these reasons if you're right as you're stating here today is  what's the best remedy i guess well i think the remedy is certainly within the distressed discretion of this court we feel the best remedy is to affirm what the circuit court found and to reverse their decision to remain judge would would do nothing because the record doesn't have any and you findings that they could rely upon that's why they didn't put in their original decision there is no medical that they can rely upon to deny disability or causation there's no witnesses that testified other than officer strong and officer  got found by the circuit court because they didn't ask him they asked him one question about him his him pursuing a suspect vehicle one question was did you activate your lights and siren and his testimony was clear and unequivocal and he said i didn't act articulate facts to support the denial and that's why we think that this should be reversed and he should be awarding line of duty disability based on his meeting of the his burden of proof which is proponents of the evidence to demonstrate he had a work related injury the plaintiff has the burden of proving whether or not he's disabled at this not not the pension board determine whether or not he's not disabled based on the preponderance of the evidence th plaintiff was the only person that testified at this hearing the pension board looked at his testimony compared to the plaintiff's application that they stated that they didn't find him credible and that they found that he that what he did how he was injured was not to do an active duty and they also found that he is injury was not caused by the active duty did they reference this potential grievance on the special benefits that they did they did reference who believe they  but they they and that for that resignation agreement that goes to he was brought up because he was working secondary jobs even though he was not working they had no idea in all the medical doesn't explain or doesn't state whether or not he is doing any other outside activity other than the police department when you say when you say the board had no idea and one of them was in college well that's what he testified to but but what what grievance said is that they had no knowledge because he was accepting peta i mean peta is that public employee disability act where you can't work a nd job if you are claiming to civility you are receiving one hundred percent of your the police department was not because they wouldn't be paying him the other point as a few for coin the coin matter they remanded the case back to the police department to be more specific if that is what this court requires us the pension more to do we would not object to being reminded to state our in specifics but the not disabled based on line of duty and not disabled based on disability and we would ask this court to affirm such thank you both counsel for your arguments and for participating in this particular forum with us as i said we hope to see you both back under for another case front and personal in the near future we will take this matter under advisement we will render a decision in due course we are now going to stand in recess or adjournment actually we're finished for the day and you are both released from the platform thank you