during all times pertinent and who on may twenty fifth two thousand and ten attempting to save the life of one of the citizens of that municipality sustained injuries to his to his lumbar spine while performing c p r and who in the opinions of every physician has ever seen him since has been unable to work as a result of the of the incident that occurred on that date let's go with the first thing is that council as you said is a twenty year so they make the point that we could retire at  five percent salary attached rank pension that would be received as a duty disability pension right would be tax free ok so in effect or at least the sixty five percent the first sixty five percent would be tax free so so there is a significant pension board however the pension board is quite aware that in the event that mr shubrick were to be granted a pension particularly under the facts and circumstances of this case the municipality would become obligated to pay for his group health insurance for the rest of his life and for his wife for the rest of her life and for the two children as long as the remained dependents and otherwise qualified ok so there is a very significant impact to  when their opinions are considered as holcroft have opined that mr shapiro on may twenty fifth of two thousand and ten sustained injuries to his lumbar spine superimposed upon prior degenerative problems in that lumbar fact not only has mr support certain attention for its disability been validated by the physicians who have examined him but it was also validated by a specialized test called the functional capacity eight and that's a very significant point which some of the physicians had mentioned as well in march of two thousand and eight mr ship or a kid gone had sustained injury march seventeenth through his lumbar spine ironically enough when that happened he was being see by a number of physicians to try to evaluate why he was having some problems feet being cold and he's reporting that his feet were being cold and couldn't seem to know socks were helping and so they initially worked him up for a metabolic problem trying to see what what that could be  then went to a neurologist and he was actually scheduled to see this dr markel rennes an orthopedic surgeon in regard to the foot problem having no idea that it may be related to a spine issue as it turns out on the seven march seventeenth he had an incident lifting a cot so he saw dr morency report of that incident as well as the history of the feet being cold at which point dr renz rendered to diagnoses first being that there was a degenerative problem in the spine that was likely leading to the issue with the feet because the lumbar nerve roots course up go down the legs down to the feet there were some some type of problem there and also that this had been aggravated by the acute injury of march seventy eight he went on to treat through with conservative measures went through physical therapy and passed that very same functional capacity evaluation so he could return to work which he did for over two years until may twenty fifth two thousand and ten going  he went back to work quickly he absolutely did he was a model patient on may twenty fifth two thousand and eight however he was unable to return to work the may twenty fifth incident was witnessed by two fellow paramedics one of whom paramedic cost who documented in the day exactly what had happened and the fact that mr sure puharich first of all when called upon to serve this patient who was in a life threatening situation actually  i understand it did not survive when called upon to serve got jumped right in was his quote he jumped right in he gave he continued to perform c p r rigorously even after he noticed that his back was bothering him and he continued to perform c p r until they were called off by the hospital personnel or personnel there at the long term care facility and it was upon standing up that he complained of excruciating pain its course of treatment  know he try to finish his work day because he actually signed up for the next shift of overtime he could not he went to occupational health he went back to dr lorenzo the same doctor that we're talking about before there is this uninterrupted line of treatment from starting you know virtually as soon as the man realized that he really did need to get treatment rather than try to got this one out and that continued up to the point when dr lorenzo's seeing the functional capacity evaluation results seeing also just the fact that his patient was not responding told the man hey you know i think you're going to have to come to reality your career as a firefighter has come to an  initial expression of their opinions mention the two thousand and eight m r i as being significant or something they needed to see it is very common that physicians and surgeons rely upon the reports of an m r i we're seeing the film itself in safe but it's your understood it's our burden of proof but we believe we've carried that far and beyond because every medical witness in the case has said they have rendered their opinions a reasonable degree of medical certainty there is a causal nexus and the two having difficulty reading their own positions reports as well as the report of dr moran's all of which are in plain english that all of us can seem to understand so in a nutshell what which is in layman's terms what would just say the board consciously disregarding the totality of their opinions and looking only at sections of their opinions where they talked about regenerative conditions genetic predispositions to injuries etc but there's no place that the board has ever been able t cite where any physician whether it be a treat or or any of the three they selected has ceded that the may twenty fifth two thousand and ten incident was not a contributing factor to the ultimate disability the poor would have us believe it's mere happenstance that this man after passing a functional capacity evaluation in two thousand and eight after coming back to work after jumping in to save this person's life on that day so we know he could work that after being able to work on that date and then being unable to work after that date the incident that's interposed in between the may twenty fifth incident witnessed by a coworker documented in the date that it's near happenstance it has nothing to do with the two occurrence they they know that the industry in this case to the board cites no only case where a board's decision to reject the vast majority of the medical evidence and denied disability benefits has not been found to be against the manifest weight of the evidence in that case the court's a research reveals instead that in such a situation our courts have consistently reversed the board's decision and they go on to say the number of the keep of cases including the recoup costs in ros cases that we rely upon here and that's it that's at paragraph forty one of the official opinion this is exactly one of those cases it is what i call the modus operandi we're seeing this modus operandi we've seen it in rows act we've seen it in lambert we've seen it to a certain extent in to the standard of review but which if you look at it also has some pertinence to this one the reason discussed rose at length is because it's a little more complicated there actually is just a touch of controversy in the record there where there is none here  but rose is also a very good example of this your honor if i may be so frank as to say so justice quinn asked earlier what's the difference here between the size of the seventy two percent salary attached to rank on service pension or sixty five percent here the difference is we know now that this is that there's other stakes in the game there are these other benefits that we're talking about and that is why we've seen some of these decisions you know we have budget issues we have concerns like that but they don't change the rights and responsibilities of the pension applicants were the board and we see these budgetary pressures create decisions like we see here like we see in lambert like we see in rose act like we see  lords hiding behind a standard of review with very little else to their argument other than you could you please don't we weigh the evidence here because we've got we know where that goes so there is there's no case they've evil to say that there was a causal nexus between the injury and b and the disability so there's no analogy between everton this case painting pain doesn't even have to do with the medical causation issue pain has to do with whether a chicago deputy district chief could perform the duties of that position and what those duties and responsibilities were there's not there's no semblance of any kind or no resemblance between case in some we come back to how the lambert case i think aptly characterized summarize the law there is no other illinois case where you have overwhelming evidence little known in this case the unanimous evidence that we have when the records and the the opinions of the physicians are continued are considered as whole cloth it was the vs calumet city police pension case at every one of my cases actually we're this picking and choosing among what the what the doctors have said focusing on the degenerative and excluding the the traumatic was rejected by this very same court in a has to be rejected again here today and when we do that and we apply the law as we see in these cases there's no conclusion but that mr t the pension board very carefully consider this case you have the opinion of the pension board the final order and decision where they made the lengthy findings of fact lengthy analysis of the evidence and testimony and there was a lot of it there was five that the report the written report in the case of dr shapiro and bernstein you had to read a lot of report and then you had a certificate after they read those review those events from the tenets of couric they said we need to hear from these doctors because the briton paper doesn't add up we need to hear from them we need to ask them questions we need to understand why they wrote what they wrote and they then had each of those doctors come in all right so that they could understand why there were discrepancies between the written reports and in the two cases where the doctors did the certificate form they said you know what's going on we want to hear from these docs they did hear from those doctors and what they found was those doctors all sad that's the c incident could be a cause it could be the cause of this disk issue but we can't say for sure because it could be a lot of other things too and we don't none of them said absolutely this is the cost they all said it could be  not enough but is that ever the case were with the doctors so well and i'm sure it is or they say definitely this is what happened but but in my experience dealing with medical cases when you deal with experts that doctors are don't want to be pinned down all the time i think that that's probably correct but i think one of the significant things in this case is that we don't have all the elements for those doctors to look at we have evidence in the record that plaintiffs put into shapiro plaintiff's counsel stated that no doctor asked for that report that's simply not true dr shapiro specifically said in his testimony and we cite in our brief on page nineteen where dr shapiro said caused this injury that the doctor said well i can't tell right exactly what caused it i don't know if it's the c p r i don't know if it's something else it could be something else but what struck you shapiro specifically said was it would be helpful to me to see the m really bored has he ever hearing here's the employee complain of back pain and the board doesn't believe it and therefore they can tell their own doctors they don't believe them i through or because they're just relying on the is a case the plaintiff cites that says that evidence given to doctors who are not treaters statements by that the patient may be evaluated differently than statements given to the tr the three employee employer doctors can come in and seize to see signs of tributes of disbelief two of them and then the board says we're still not paying them as being this they agreed to say all right there's no question right the board in their twenty pages said we agree he can never be a fireman again there's no question he's not coming back he's not lying about the bad pain he's severely injured he can't come back we agree with it we just disagree  cause of that injury we don't think it's due to this injury in two thousand and ten and we don't think it's due to the many other prior back injuries we just don't believe them so what's your best case where you're allowed to do that were pension end and if i may just say good i think your honor's question presume is an injury when in fact what we may have is a condition a degenerative back condition and that the injury the quest to whole can't so and everybody agrees even of course as well he can't work he's is a very sick injured disabled he's no question he's disabled from that point for iraq and now you want to say well even though we can see this disabled from this point forward point being the c p r incident that has nothing to do with this that's not it's clearly an active duty but that's not the cause of this right and you say even for this it is just right that we least be able to say the one nine hundred eighty nine case of the second chief who didn't have to pick up the holes for the rest of his life he could just set it at tasker driven out watch the fires or go toward the reporter would and we help in any case that he could do the duties of a think the thing that we have here is even as the most analogous factual case you have a guy who had a degenerative back condition that was preexisting he had an incident on the job he some time with some hours later said gosh my back really hurts went to the doctor same thing happened with mr spurlock he rants he had the he has a preexisting condition that's been established he then shows up he does the c p r he says my back hurts he goes back to work he doesn't immediately go to the doctor goes back to work some time later the next day he goes back has this happened at two in the morning he goes back the next day and says gosh i can't work anymore i need to go to the toc or they take them to the doctor that's  and then one testified yes we don't know that we don't have that information about the for case what we have about her case is that he was he did have a degenerative back he did have a pain in the back subsequent to the active duty that the pain began to reduce and was somewhat temporary in nature but he also muttley had a back condition that prevented him from returning to work the pension board here found the same thing that he had an incident he had pain he testified that he had pain he testified that he had leg pain at the time and for a period of time after but over time all the doctors all of the doctors say that that pain has largely result he really isn't having bad shooting pain that he used to have h he show that the court that causation piece which is what he's required to show it is his burden and is your honor in pain case you sad he didn't meet the threshold it's a threshold that the plaintiff passed to meet he has to show he has the experiencing man you man you man you're and the two of them at the time it's happened when he is he has to stop the c p r because of the pain he's talking about they're literally writing a report at that time about the onset of this injury i believe the word is dated that day or within a couple of days it was contemporaneous and it was witnessed by the two fellow firefighters who were there when this happened to it was just four and there's no dispute that the incident occurs there's no dispute that he had pain at that time the question is was there was that the ultimate cause of the this between what ever it could have been the exacerbation of that of his condition is clearly linked to his service as a fireman and and the last generation which is the cap on this and took him out of it completely was not the one where he lifted up the cot which he also an intern himself with but when he did the c p r so there is there's nobody has discounted that this that that's with with what the doctor said about the condition these are not siloed items these are a continuum of experience relating to a condition this man had and you have an iteration of it particularly at the  where he just where he had he paced and then he and induced harm based upon the work he was doing as a and that's what triggers what the result of this case is supposed to be about which is what he seeking he's seeking duty disability and with all of these duties that he performed how can you deny your on the one of the things that the pension found punch report found was very important was that when you look at that list of incidents that you were cite there are periodic back strains of different kinds over a course of time up to ninety ninety eight then from ninety ninety eight to two thousand and eight there is no back report some of those reports that are in that list the plaintiffs provided are not back injuries two thousand and eight he comes to his department physical and he says you know my feet are cold i think i might have a bad back and it might be related to my job  that's because i think that's an unfair characterization of what the pension board did what the pension board said was there's a period of time where his best mate the arthritis got worse the degenerative back up worse but it wasn't from a job  this firefighter mistress he he drove there for the hearing and he sat there for an hour and forty five minutes and by watching him sit there then came to the conclusion that he had no injury now he could tell if any of us have one here on it that's not what they concluded they said they simply observe that if you don't know they observe that he was not did not exhibit symptoms at that hearing which was more than a year after the incident and so the end that goes to any links to the doctor's statements that the pain by that point had your honor that's one line in a twenty page carefully reasoned opinion that is tied to the evidence and the facts i think that and the board answered that in the briefs which said that they that that was actual cause or is it just merely contributing it can be a cost and it does not have to be the only cause to be a valid cause under the pension you're under the pension board its position is don't look at one piece of paper to say what my witnesses say what these doctors say and you have to look at these doctors as a whole you have to look at their testimony as a whole then they may have marked that certificate but when they came in and testified those two doctors bernstein and shapiro they both sad this could be caused by any number of things and i don't know what is the cost and so and so and because you had a distinction between the certificate and the written report that's why they came in west a come in to testify they did come in and testify and in their testimony when you look at it as a whole you have to say there is a question about incident occurred with doctors that the incident occurred and that it could have been a contributing factor to is it knitted disability that there are any number of things that could set off my desk physicians engaged by the village all were of a mind that this incident could have contributed to his disability that we all without anyone supporting the word because of that it wasn't because of his disability that's where i struggle with this because their own theoretically disinterested experts support the conclusion that the disability that is agreed to not disputed could have been caused by this major incident the c p r it's now you have the board then saying not withstanding that we're going to deny the requests without any evidence what was the condition of his back and what information did the dr scott and they said we felt that in what evidence are they relying on to justify that question is that a reasonable question based upon the status of the record that's the issue really all of the doctor in other words it's usually ninety realized it now but it's it seems to me that that a functional betrayed you know is to listen to the evidence that's why we have experts because the layman just doesn't have the it's outside their expertise so they have the experts testify in the end totally go the opposite direction without any support for their direction or going into that's the difficulty in this case there's nothing here supporting the board's inclusion that they have a question they shouldn't have a question based upon the help of them but they do have a i think that when they find that there is a question about the doctor's testimony and a question about what the doctor's conclusions are and there is potential for more than one inference to be made gaps in the in the evidence gaps and what the doctor said gaps in the material provided i mean clearly the m r i is mistress works i'm right if he he could certainly get it and provide it if he couldn't get it and they could do that already but he didn't and so the burden is the plaintiffs the pension board you know this puts the pension board in such a difficult position because people assume it's like a trial and it's really not it's three it's five members three of whom are firefighters sitting there hearing an application from one party who is represented by counsel there's no adverse party they aren't in the role of being a prosecutor they aren't in the role of fighting and bringing in all the southern but in some doing all this other investigation it's not their job their role in the briefs of the plaintiff is miss characterize their happened before this sport where a party says i need x y z records we issue a subpoena for they always say yes but i don't know that it's the pension board's role to say that i know you i know you you are frustrated by that site by that but i think that i think that assess is this isn't a trial this isn't a traditional trial situation where you have two advocates banging hads and bringing out against this is this is one the same thing they said they did here they watched with the meter to the turn of the of the application and for the for the for this determination they had to determine whether or not he was to salem which is and what's what is imperial here this record shows that they have looked at something and taken a totally different view of it then and frankly from what i'm listening to the to their questions  do it and these doctors testified based on what they saw and what they saw they were allowed to recount and under the rules of evidence there but they're permitted to do that take a look at section b or external source thereof insofar as reasonably pertinent to a diagnosis or treatment this envelops everything that allows everything to be to be to come within this rule of evidence and how they chose on the board this out and to pick and choose what they wanted frankly doesn't fit with the pattern of what this what this applicant did he worked he took care of himself when he could when he was injured he worked afterwards he didn't give up again he's not a middling are and some days were better than others but the bad days were the ones that were caused by what he testified to as acute injuries caused by these incidents of trauma to which included them in the march twenty fifth hand date and i can't remember which of the lifting of the cough which with the two most recent so here's a fellow who for decades is going through this problem with his  because in this case what the pension board is is saying in order for the doctors to do a fair evaluation of whatever's the change in the spine over time we know that was an m r i in a way nobody knows what it says and there's a claim that there's a change would like to see that without that why you know why is it their burden to be prosecutor to to seek that stuff out why shouldn't plaintiffs have the burden to bring that in and say here that was then this is now there's clearly a change if that had been brought in i think what would have happened is what would what the pain case was talking about as plaintiff would have put his burden over and shifted that duty to the board let's assume or say no more damage doing the c p r had no impact on the spine i think it would be i think it would be a factor that the doctors would have to consider and say what happened what the statute is other acts so any continuing pension or and that's where it has to be stopped if you think it's bad if you think it's fraudulent he's not this is not to be related you've got three that in your employ who can talk to them evaluate the person and s of duty hasn't been proved they have not taken the stack of evidence and put it before the doctors and said doctors the pile of reports tell us if the cumulative a fact are this bad back the focus of that evidence was on this c p r incident in the focus of the argument of the proves to spend on this c p r incident and not a cumulative effect argument that is not the argument that has evidence in the record to support it if stuff and put it in front of the dot any doctor and say doctor looking at this twenty something years what right do you think he didn't do that he never did that it's thirty seconds he we have a single act the doctors say it could be a cause no doctor says it absolutely is the only cause that it could be the pension board has a fiduciary duty to all members of the fun to examine these cases carefully they did a twenty page opinion carefully examining the evidence in good conscience did a lot of work to try to evaluate the situation and i believe accurately found that the plaintiff fail to meet his furred here he is disabled there's no doubt about that and i think the pension board feels bad about that but i think they also feel that he did not prove that the ultimate disability was related to an active duty it is guy just has the unlucky circumstance of bad genetics or whatever and has a bad back and that is the cause of this thank you thank you i'm sorry very briefly asked sorry on line twenty one ok and the reason i'm asking this is one of the key things we're looking at is that a catastrophic injury was it caused by this incident or is it something this degenerative or you know it could happen to anybody the same thing that happened or was the result of the job he's do answer sure it's a good question it appears to me based on everything i know about this case that he had an asymptomatic the generative condition in his back that was aggravated when he was doing c p r in two thousand and ten and as a result of there's you know there's one thing that makes it always difficult when a problem or herniations for true zhang's bulges is there's different normally cleats are used by different doctors so you talk about one thing with one and you're talking about the states apples and apples sometimes bernstein gave some of the best testimony because he mentioned that although there's degenerative disc problems in mr and mr schwartz spine the l five s one level actually was not very degenerative it was as he called it juicy and had maintained discreet and there was a chunk that had come off of it very much the same ways that the wrens had described it which was causing some of these symptoms so dr bernstein i thought near got real focused on that what really is important here is this mr shubrick was able to work before on and before may twenty fifth and unable to work afterwards and there was this incident that would be a competent cause for why he would be unable to work why his underlying condition if that's all it was just aggravated was aggravated on that date and became symptomatic those symptoms i think here's the big irony about the case the very same symptoms that disable m which the knowledge is able to report are exactly the same ones that all of the doctors are basically saying are what they used to establish a causal nexus so the very same evidence mr shapiro has credibility w incident mr supports passing of the functional capacity evaluation that's the same evidence that's credible to just more even on the question of disability but they're going to say that the very same evidence from the very same source is incredible on the question of causation when really the doctors say what we do is we take we take a look at all the facts and take a look at the applicant take a look at the f c e results we take a look at the medical level and if it all fits together then we're going to say there's caus which requires the board to ensure that it would funds are available to pay current and future this ability pensions to all who qualify and improve care of the border sponsibility involved screening a bunk qualified or fraudulent disability claims so that funds are not unfairly distributed call someone to testify again to something that has already been in a report it's in evidence that was created in the day what would be more will be considered more more reliable what firefighter grower would say or what firefighter bill wrote we all know we've all made that argument we know we've all was so to avoid violating the rule about when your winnings shut up i want to thank the and to remedy an injustice that has occurred as a result of what the board has done i will say one thing and it's not too often that i kept my captain mike opposing counsel by i don't think ms adams has any case to stand on today but she certainly demonstrates you can stand in the ring and take a punch but nevertheless there's there's there is no merit to any of the board's arguments they are pretext they should be rejected