ILLINOIS OFFICIAL REPORTS

Appellate Court

Rose v. Board of Trustees of the Mount Prospect Police Pension Fund,

2011 IL App (1st) 102157

Appellate Court

Caption

MICHAEL D. ROSE, Petitioner-Appellee, v. THE BOARD OF

TRUSTEES OF THE MOUNT PROSPECT POLICE PENSION FUND,

Defendant-Appellant.

 District & No. First District, Fourth Division

Docket No. 1-10-2157

Filed September 15, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Petitioner was entitled to a full “line-of-duty” disability pension for the

back injury he suffered in an automobile accident while on duty as a

police officer and a second accident that occurred several months later

while he was off duty, and the Pension Board’s denial of a “line-of-duty”

disability pension was reversed, since the Board’s conclusion that the onduty accident was not a contributing cause of petitioner’s undisputed

disability was against the manifest weight of the evidence.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-CH-06026; the

Hon. Nancy J. Arnold, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Richard J. Reimer and Jeffrey A. Goodloe, both of Richard J. Reimer &

Associates LLC, of Hinsdale, for appellant.

Thomas W. Duda, of Law Offices of Thomas W. Duda, of Arlington

Heights, for appellee.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,

with opinion.

Justices Pucinski and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 The petitioner-appellee, Michael D. Rose, was a patrol officer in the Village of Mount

Prospect Police Department. On February 21, 2004, while on patrol and driving his squad

car, the petitioner was injured in an automobile accident. The petitioner was subsequently

involved in a separate and undisputably off-duty automobile accident, on June 1, 2004.1

¶ 2 As a result of his February 21, 2004, accident, the petitioner filed an application with the

board of trustees of the Mount Prospect Police Pension Fund (hereinafter Pension Board)

requesting a “line-of-duty” pension pursuant to section 3-114.1 of the Illinois Pension Code

(hereinafter Pension Code) (40 ILCS 5/3-114.1 (West 2006)) and contending that he suffered

a permanent disabling injury (namely, herniated discs in his lower back). In the alternative,

the petitioner requested a “nonduty” disability pension pursuant to section 3-114.2 of the

Pension Code (40 ILCS 5/3-114.2 (West 2006)). The Board denied the petitioner’s request

for a “line-of-duty” disability pension, but granted his request for a “nonduty” disability

pension. In doing so, the Pension Board found that the petitioner was not entitled to a “lineof-duty” pension because: (1) the February 21, 2004, accident did not occur while the

petitioner was performing an “act of duty”; and (2) the February 21, 2004, accident was not

a contributing cause of the petitioner’s undisputed disability; rather, that disability was

caused by the injuries the petitioner sustained in the later June 1, 2004, off-duty accident.

¶ 3 The petitioner sought administrative review of the Pension Board’s decision with the

circuit court pursuant to section 3-103 of the Code of Civil Procedure (hereinafter Civil

Procedure Code) (735 ILCS 5/3-103 (West 2006)). The circuit court granted the petitioner’s

complaint for administrative review, reversed the Pension Board’s decision, and entered

judgment in favor of the petitioner, specifically finding that he was entitled to a “line-ofduty” pension. The Pension Board now appeals, asking that we reinstate its original order

The petitioner has filed two separate civil lawsuits against the individuals involved in each

1

accident. These lawsuits are not related to the issues raised in this appeal.

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denying petitioner’s request for a “line-of-duty” pension. For the reasons that follow, we

affirm the decision of the circuit court.

¶ 4 I. BACKGROUND

¶ 5 The record, which is fairly cumbersome, reveals the following relevant facts and

procedural history. After the petitioner filed his request for a “line-of-duty” pension on April

30, 2007, the Pension Board held two administrative hearings on the petitioner’s application.

During those hearings, the Pension Board suggested that the petitioner amend his application

and alternatively request a “nonduty” disability pension without prejudice to his claim for

a “line-of-duty” disability pension. The petitioner complied with this advice and amended

his application.

¶ 6 A. The Administrative Hearings

¶ 7 After the petitioner amended his application, the Pension Board heard the petitioner’s

testimony and reviewed voluminous evidence introduced into the administrative record. That

evidence consisted of over 30 exhibits and included, inter alia: (1) various village police and

administrative records concerning the petitioner’s assignment and movements on February

21, 2004, as well as the car accident in which the petitioner was involved on that date; (2)

the petitioner’s pleadings and deposition testimony in the civil lawsuits against the

individuals involved in the February 21, 2004, and June 1, 2004, car accidents; (3) medical

reports and records from the petitioner’s family physician, Dr. John Cottrell, who was the

first to treat the petitioner after his February 2004 accident; (4) numerous medical records

from institutions where the petitioner has been treated since his February 21, 2004, accident

(including records from Holy Family Hospital, the Lutheran General Spine Center,

Northwest Community Hospital, Adult Pediatric Orthopedics, S.C., the Condell Medical

Center, the Loyola Medical Center, and the Illinois Bone and Joint Institute); (5) depositions

of the following treating physicians, Dr. Michael Jacker, Dr. Martin Lannoff, and Dr. Jay

Levin; (6) depositions of Dr. Alexander John Ghanayem, and Dr. Thomas Gleason, who

were asked by the village and the village’s insurer carrier, respectively, to evaluate the

petitioner for purposes of his workers’ compensation benefits claim; (7) a medical evaluation

by Dr. Samuel Chmell, the petitioner’s medical expert; and (8) three independent medical

evaluations of the petitioner for purposes of his disability pension, performed by Dr. Gary

Shapiro, Dr. Miledones Eliades, and Dr. Gary Yarkony, and ordered by the Pension Board,

pursuant to section 3-115 of the Pension Code (40 ILCS 5/3-115 (West 2006)). For purposes

of brevity, we address and summarize only that testimony and those exhibits which are

relevant to this appeal. We do so in chronological order.

¶ 8 1. Evidence Regarding the February 2004 Accident:

The Petitioner’s Testimony and Relevant Village Records

¶ 9 During the administrative hearings, the petitioner first testified that he was a patrol

officer for the Village of Mount Prospect (hereinafter the Village) since January 2, 2001. The

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petitioner denied having suffered from any injuries prior to his employment by the Village

and testified that prior to being hired as a patrol officer, he was ordered to undergo a physical

examination, which he passed with no reservations.

¶ 10 The petitioner next testified about his duties as a patrol officer. The petitioner explained

that his duties required that he “actively patrol the Village” (eitherin the squad car or on foot,

and sometimes even on a bicycle, as a member of the police bicycle unit) in order to protect

“the property and person of the citizens of the Village.” As part of his daily patrol duties the

petitioner had to conduct traffic stops, respond to calls, interview witnesses and suspects, and

on occasion aid the coroner and act as an evidence technician. The petitioner further stated

that he was required to be physically prepared to restrain an offender or suspect, at any time,

and that this often involved “twisting, bending and lifting of extreme nature.” The

petitioner’s duties were varied and could require the petitioner to stand on his feet for long

periods of time (such as in monitoring traffic), or could require him to be seated (such as in

conducting long interviews). The petitioner also testified that as part of his job as a patrol

officer, he was regularly required to wear duty gear, including police boots, a bulletproof

vest, a duty belt made of leather, loaded weapons, two magazines with ammunition,

handcuffs, a baton, a flashlight, and various other equipment.

¶ 11 The petitioner next testified regarding the events of February 21, 2004. He stated that on

that date he was 24 years old and was assigned to an afternoon patrol shift from 3 p.m. to 11

p.m. According to the petitioner, at about 2:45 p.m., he attended roll call, at which point he

was in good health. The petitioner was assigned to investigate a missing juvenile. He was

dispatched to a residential address, where he spoke to the mother of the missing juvenile for

about 15 to 30 minutes. During the course of this interview, the petitioner received another

dispatch from Northwest Central Dispatch instructing him that the juvenile and a couple of

his friends “may be” at a Citgo gas station located at the corner of Rand and Euclid Roads

in Mount Prospect. After receiving this information, the petitioner proceeded to the gas

station, where he arrived about 15 to 20 minutes later. Once there, the petitioner exited his

vehicle and spoke to the gas station attendant, who told him that the juvenile had just been

at the station and had left only a couple of minutes ago, on foot, heading southeast on Rand

Road. The petitioner testified that he returned to his vehicle, intending to drive along Rand

Road until he could locate the juvenile, take him into custody and bring him back to his

mother.

¶ 12 According to the petitioner, however, as he attempted to exit the gas station onto Rand

Road, by turning left, his squad car was hit by another vehicle, driven by a civilian, Christina

Cappozzi. Cappozzi’s vehicle struck the front driver’s side of the squad car. The petitioner

felt the car jerk back, and he hit his head on the molding between the windshield and the

door. The petitioner advised Northwest Central Dispatch of the traffic accident and then

exited his vehicle to see if Cappozzi was injured.2

The official traffic crash report for the February 21, 2004 accident corroborates the 2

petitioner’s version of the traffic accident. That crash report reveals that while the petitioner was

driving his squad car he was hit by a 2002 Chevy Cavalier being driven by Christina Cappozzi.

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¶ 13 With respect to the February 2004 accident, the Pension Board offered into evidence

several Village records regarding the petitioner’s movements on that day, including, inter

alia: (1) the petitioner’s “Mount Prospect Police Department Officer’s Daily Activity

Report” dated February 21, 2004; and (2) the Mount Prospect police department’s official

police report detailing the missing juvenile call, including the dispatch center’s logs. The

Pension Board also introduced into evidence a copy of the petitioner’s deposition taken in

his civil lawsuit against Christina Cappozzi.

¶ 14 The petitioner’s deposition details the manner in which the police department tracks the

movements of police officers while they are on patrol. In that deposition, the petitioner

explained that each time a call is assigned to an officer, a computer-aided dispatch (or CAD)

sheet is created. The police officer can make additions to the CAD sheet by using his in-car

computer and by notifying the police department of his whereabouts and any actions he takes

during the day. An officer can ask the dispatch center to add information that the officer

learns on the scene, or to look into suspects of whom the officer has learned and retrieve

information about them for the officer. According to the petitioner, the officer ultimately has

to put codes onto any dispatch call and end it once the call has been completed.

¶ 15 The official police investigation report for February 21, 2004, introduced by the Pension

Board, indicates that the missing juvenile’s mother entered the police station and reported

her son missing at 14:32. The petitioner’s daily activity log shows that he interviewed the

mother at her home from 16:47 to 17:18. The log further reveals that the petitioner received

a call from dispatch regarding the missing juvenile at 17:19:02. That dispatch report

informed the petitioner that the juvenile was last seen at a Citgo gas station at the intersection

of Rand Road and Euclid Road. The daily log next reveals that the petitioner proceeded to

the gas station, as an assisting officer, where he conducted an “investigation” from 17:20 to

17:28. The petitioner coded this investigation as “Assist 3182.”

¶ 16 The official police report reveals that the petitioner’s last transmission with the dispatch

center regarding the call was “NO JUVS HERE” and that the petitioner then coded the call

“CLEAR” and “CLOSE” at 17:30:01. The petitioner’s next and final entry for that day is 3

the motor vehicle accident that occurred when he left the gas station.

¶ 17 When cross-examined bythe Pension Board regarding his dispatch records, the petitioner

testified in the following manner. When asked whether he had “completed the call,” the

According to the crash report, traffic was stopped in both northwest-bound lanes on Rand Road. The

petitioner made a left-hand turn out of the gas station’s parking lot and across the two northwestbound lanes of Rand Road in an attempt to drive southeast on Rand Road. At the same time,

Cappozzi drove her vehicle northwest on the painted median lane separating the northwest and

southeast-bound lanes of Rand Road and struck the petitioner’s squad car on the front driver’s side.

Photographs of the scene, attached to the crash report, reveal bumper damage and a cracked driver’s

side headlamp on the petitioner’s squad car.

Nothing in the official police report of the petitioner’s own daily log indicates that he told

3

dispatch that he spoke with the gas station attendant or that he received information regarding the

juvenile’s possible whereabouts.

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petitioner stated that he could not remember and that another officer could have “coded it

out” for him due to the traffic accident. The petitioner also admitted that after he was

released from the emergency room he returned home rather than to the police station to

complete his shift. On cross-examination, the petitioner further admitted that when he left

the gas station, he was not “actively pursuing anyone.” He also acknowledged that the

emergency lights on his marked squad car were not activated before the accident occurred.

In his deposition in the civil lawsuit, the petitioner similarly admitted that as he was exiting

the gas station, the “status of the case at the time did not make it an emergency,” and he did

not “have to use extraordinary efforts to get out of the gas station and head southeast bound

on Rand Road.”

¶ 18 2. Evidence Regarding the Petitioner’s Treatment and the Second

Off-Duty Accident: The Petitioner’s Testimony and Relevant Medical Records

¶ 19 During the administrative hearings, the petitioner next testified regarding his injury and

prolonged attempt at treatment. The petitioner admitted that immediately after the accident,

he neither felt pain nor noticed anything out of the ordinary with his back. However, about

45 minutes later, in the course of the investigation into the car accident, the petitioner began

noticing an increasing pain, discomfort and stiffness in his neck and lower back. The

petitioner immediately contacted his supervisor, Sergeant Lee, and drove back to the police

station, where Sergeant Lee called for an ambulance. The petitioner was transported to the

emergency room at Northwest Community Hospital, where he was examined and X-rayed.

Medical records introduced by the Pension Board reveal that the X-rays taken at Northwest

Community Hospital were “all completely normal,” did not reveal any “evidence of fracture

or dislocation” or any “significant bony injuries in the cervical or the lumbar spine” but,

rather, showed that “[t]he vertebral bodies, their appendages and interspaces appear normal.”

¶ 20 The petitioner stated that after leaving the emergency room, on February 23, 2004, he

followed up with his family physician, Dr. John Cottrell. Dr. Cottrell prescribed pain

medication and muscle relaxants and ordered the petitioner to undergo physical therapy at

Holy Family Hospital and not return to work until March 9, 2004. On March 9, 2004, the

petitioner was examined by Dr. David Spencer from the Lutheran General Spine Center.

Medical records from the Lutheran General Spine Center introduced by the Pension Board

reveal that on March 9, 2004, after examining the petitioner, Dr. Spencer wrote to Dr.

Cottrell that “[the petitioner] is making a good recovery from a simple lumbar and cervical

strain and I anticipate no need for any further diagnostic studies or specific treatment.” Dr.

Spencer’s dictation notes similarly state that the petitioner is recovering from “a simple back

sprain” and note Dr. Spencer’s recommendation that the petitioner be given a nonsteroidal

anti-inflammatory medication and that he return to full duty on March 19, 2004.

¶ 21 The petitioner next testified before the Board that he returned to work on March 9, 2004,

but that on recommendation from his physicians, he was assigned to “light duty capacity”

4

The petitioner explained that “light duty capacity” included working at the front desk

4

answering telephone calls, handling walk-ins, taking reports, as well as conducting interviews with

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through April 4, 2004. The petitioner stated that he began physical therapy at Holy Family

Medical Center on March 24, 2004. On cross-examination, the petitioner admitted that on

March 30, 2004, he told his physician that the pain was no longer constant, and that on April

9, 2004, he said that “if 100 percent is perfect, I would say I’m at 90 percent.” The petitioner

explained, however, that these were daily reports to his physicians and that the pain he was

experiencing varied from day to day depending upon his activities, so that although it would

seem to subside one day, but then return “in full force” the next.

¶ 22 The petitioner testified that on April 5, 2004, he returned to full duty patrol

responsibilities at work. He explained, however, that he asked Dr. Cottrell to permit him to

return to his full duty patrol responsibilities, because he was receiving pressure from his

supervisors to return to “the streets,” and to “just take some pain medication and deal with

it.” The petitioner averred that after he returned to “full duty” he continued to experience

pain (including burning, stabbing and dull pain in his lower back, waistband, left buttock and

upper thigh). The petitioner returned to Dr. Cottrell on May 21, 2004. On that day, Dr.

Cottrell restarted the petitioner on pain medication and ordered X-rays of his lower back. Dr.

Cottrell also referred the petitioner to an orthopedic surgeon, Dr. Michael Jacker.

¶ 23 The petitioner testified that shortly thereafter, upon advice from Dr. Cottrell, he made an

appointment to see Dr. Jacker. However, before he could keep this appointment, the

petitioner was involved in a second, off-duty car accident on June 1, 2004. The petitioner

was again taken to the emergency room, this time at Holy Family Hospital, where X-rays

were taken. The emergency room records from Holy Family Hospital, introduced by the

Pension Board, reveal that the petitioner stated that he was traveling about 40 miles per hour

when he was struck on the passenger side by a vehicle traveling approximately 10 to 15 miles

per hour. The emergency room records further noted that the petitioner had injuries to his

“lower back and buttock.”5

¶ 24 On cross-examination, the petitioner admitted that he did not report the June 1, 2004,

accident to any of his treating physicians or to the Village of Mount Prospect police

department. The Village records introduced by the Pension Board reveal that the Village did

not become aware of this accident until May 2007 (three years after the incident), when the

Village’s new workers’ compensation carrier ran a routine insurance search of the

petitioner’s name.

¶ 25 The petitioner next testified that on June 5, 2004, he went in for the X-rays that Dr.

Cottrell had ordered for him prior to his second accident. On June 7, 2004, he also kept his

appointment with Dr. Jacker, which had been scheduled prior to the accident. According to

the petitioner, after an examination, Dr. Jacker ordered an MRI of the petitioner’s lower

back. That MRI, taken at Condell Medical Center, on June 11, 2004, revealed herniation of

victims or suspects brought into the police station.

We note that in his deposition taken on February 7, 2007, for purposes of his civil lawsuit

5

regarding the February 21, 2004, accident, the petitioner testified that he did not suffer any injuries

in the June 1, 2004, accident.

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the petitioner’s lower back at the L3-L4 level and a bulging disc at the L4-L5 level. Based

on the MRI reports, Dr. Jacker diagnosed the petitioner with a “left lumbar myfascial sprain

with persistent symptoms,” and he ordered a set of epidural injections for the petitioner, to

be administered by his colleague, Dr. Martin Lannoff.

6

¶ 26 Medical records from Dr. Jacker and Dr. Lannoff establish the following treatment of the

petitioner. Dr. Lannoff administered the first epidural steroid injection on July 1, 2004. On

July 20, 2004, the petitioner returned to Dr. Lannoff for a second epidural shot and reported

to him that he was “50% improved.” At that time, Dr. Lannoff released the petitioner to full

and unrestricted police duties. On August 23, 2004, Dr. Jacker reexamined the petitioner and

attributed the petitioner’s continued, but diminished, pain to the same disk protrusion at level

L3-L4. Dr. Jacker continued to allow the petitioner to remain on full duty at the police

station. On October 18, 2004, Dr. Jacker again examined the petitioner and noted that the

“only symptoms [the petitioner continued to experience were] soreness or slight achiness in

his lower back sometimes associated with wearing the belt he wears at work as a police

officer. He has no lower extremity symptoms.” He noted that the petitioner was doing “very

well” and that his symptoms had become “very minimal.”

¶ 27 On January 24, 2005, the petitioner returned to Dr. Jacker because the pain in his back

and thigh suddenly worsened. Dr. Jacker ordered further physical therapy, prescribed more

anti-inflammatory and pain medication, and ordered another MRI. The second MRI,

performed at Condell Medical Center on May 11, 2005, revealed disc protrusions at levels

L3-L4 and L4-L5. On November 14, 2005, Dr. Jacker ordered an additional epidural

injection, which was administered by Dr. Lannoff on November 29, 2005.

¶ 28 The petitioner testified before the Board that in the following months the pain in his

lower back persisted and became worse when he wore his full duty patrol gear. The petitioner

returned to Dr. Jacker on December 15, 2005. Dr. Jacker restricted the petitioner to “light

duty status” at work and referred him to Dr. Jay Levin to discuss surgical options.

¶ 29 The petitioner saw Dr. Levin on January 4, 2006. After a physical exam, a CT scan, a

lumbar myelogram, and a “Somatosensory Evoked Postentials” (SSEP) test, Dr. Levin

advised the petitioner that there was a “significant nerve conduction delay going down from

his left buttock into his left foot.” Dr. Levin also confirmed that there was a herniation at

level L3-L4 and a bulging disc at level L4-L5. He discussed surgical options with the

petitioner, but he wanted a second opinion and referred the petitioner to another orthopedic

surgeon, Dr. Regan. After the petitioner was examined by Dr. Regan, Dr. Levin scheduled

the petitioner for surgery.

¶ 30 Prior to the petitioner’s surgery, however, the Village’s workers’ compensation

administrator ordered the petitioner to undertake a medical evaluation by Dr. Ghanayem.

According to the petitioner, Dr. Ghanayem confirmed the diagnosis from Dr. Levin and Dr.

Regan.

¶ 31 The petitioner had outpatient surgery performed at Northwest Community Hospital on

In a letter dated June 30, 2004, Dr. Jacker attributed the petitioner’s continued symptoms

6

to a protruding disc at L3-L4 caused by the motor vehicle accident on February 21, 2004.

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April 11, 2006. Although the pain in petitioner’s leg subsided after the surgery, the petitioner

continued to experience extreme muscle spasms and pain in his lower back. As a result, on

April 10, 2006, he was taken off work completely. While recovering at home, the petitioner

received his full pay under the Public Employee Disability Act (5 ILCS 345/1 et seq. (West

2006)). That temporary disability pay was terminated on August 21, 2006, after petitioner

was examined by Dr. Thomas F. Gleason, on behalf of the Village’s workers’ compensation

carrier.

¶ 32 The petitioner went through physical therapy with Dr. Levin which did not improve his

condition. A third MRI was performed on June 30, 2006, based upon which Dr. Levin

diagnosed him with “diskogeni mechanical back pain.” On August 23, 2006, the petitioner

returned to light duty at work, and he continued with his physical therapy through November

2006. As the pain in his back persisted, he returned to Dr. Lannoff and received three more

epidural injections.

¶ 33 Because the petitioner’s symptoms were not alleviated, on December 18, 2006, Dr.

Lannoff recommended that he undergo a functional capacity evaluation test (FCE) at Lake

Forest Hospital. The test, which was completed on December 18, 2006, revealed that the

petitioner was no longer able to do full duty police work. The petitioner permanently left the

Village police department on January 29, 2007. Since then he has not worked as a police

patrol officer for the Village or anywhere else. The petitioner testified that he is currently

employed as a full-time sales account executive for EcoLab and has been with them since

March 2008. The petitioner stated that he still continues to experience pain and burning in

his lower back, depending upon the type of activities he is performing, such as sitting or

standing for prolonged periods of time. He admitted that he has not sought treatment since

January 2007, but explained that his physicians have told him that there is no other treatment

option, except for fusion surgery.

¶ 34 3. Treating Physicians’ Deposition Testimony

¶ 35 During the administrative hearings, the Pension Board introduced voluminous

depositions of several of the petitioner’s treating physicians. For purposes of brevity, we 7

relate only those portions of the depositions that are relevant to the issues raised in this

appeal.

¶ 36 a. Dr. Michael Jacker

¶ 37 Dr. Michael Jacker was deposed on September 7, 2007, and acknowledged that he was

the first non-emergency room physician to examine the petitioner after his second, June 1,

2004, accident, as well as the first physician to recommend steroid injections for the

petitioner’s back. Dr. Jacker testified that he first examined the petitioner on June 7, 2004.

We note that all of these depositions were taken pursuant to petitioner’stwo personal injury 7

cases arising from the February and June 2004 accidents and were completed before the petitioner

requested a disability pension from the Board.

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He admitted that during the course of his diagnosis and treatment of the petitioner, he was

unaware of the petitioner’s June 1, 2004 accident, even though that accident occurred only

six days prior to the petitioner’s first appointment with him. Dr. Jacker testified that during

that first examination, he was under the impression that the petitioner was “markedly

improving” from his February 21, 2004, accident. Although Dr. Jacker acknowledged that

it was possible that the June 1, 2004, accident exacerbated the petitioner’s condition, he

testified that his current awareness of this accident does not affect his opinion that the first,

February 21, 2004, accident originally caused the petitioner’s underlying conditions.

¶ 38 b. Dr. Martin Lannoff

¶ 39 Dr. Martin Lannoff was deposed on December 19, 2007, and testified that he never fully

examined the petitioner because his treatment was limited to administering two steroid shots

to the petitioner’s back on the referral of Dr. Jacker. Dr. Lannoff testified that the petitioner

suffered from a degeneration of discs prior to either accident. He stated that in an August 29,

2006, letter he attributed the petitioner’s lower back pain to the February 21, 2004, accident,

which he believed exacerbated the petitioner’s preexisting condition. He acknowledged,

however, that the petitioner never informed him of his second, June 1, 2004, accident, and

he stated that, now knowing of this second accident, and considering the petitioner’s

preexisting degenerative discs, he could not give a opinion as to which accident, if any,

caused the petitioner’s disability.

¶ 40 c. Dr. Jay Levin

¶ 41 Dr. Jay Levin was deposed on September 4, 2007, and acknowledged that he performed

the petitioner’s back surgery on April 11, 2006. Dr. Levin testified that both the February and

June 2004 accidents contributed to the petitioner’s disability. Dr. Levin stated that the

degenerative changes in the petitioner’s L3-L4 disc preexisted either accident. Dr. Levin

furthertestified that although in a letter dated January 19, 2006, he noted that the petitioner’s

disability “without question” was caused by “the same problem that occurred with the

incident of February 21, 2004” and that “[t]he degenerative changes in [petitioner’s] disk are

not the basic reason for his current complaints but rather the injury of February 21, 2004, and

the normal history of such a condition,” these statements were made without any knowledge

of the petitioner’s June 1, 2004, accident. Once Dr. Levin became aware of the petitioner’s

June 1, 2004, accident, he opined that no single accident “absolutely caused” the petitioner’s

herniated discs. With knowledge of the second accident, he concluded that both accidents

were “contributory” to the petitioners’ disability, stating that the June 1, 2004, accident could

have anywhere from “some” to “some greater amount of involvement” in the petitioner’s

disability and that it would be “unrealistic” to believe that the February 21, 2004, occurrence

did not play a role in the petitioner’s disability.

8

During his deposition, Dr. Levin also stated that nobody “could definitively give an opinion

8

to a reasonable degree of medical and surgical certainty [as to which accident absolutely caused the

disability].”

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¶ 42 Dr. Levin also testified that, depending on how the medical records between February

and June 2004 were interpreted, during this period, the petitioner could be perceived as

“anywhere from somewhat better, to completely better, or maybe better, maybe not better.”

Lastly, Dr. Levin testified that the June 2004 accident was “more likely” the cause of the

petitioner’s herniated disc. In coming to this conclusion, he noted that the fact that the

petitioner did not tell any of his physicians about the June 2004 accident is “the most critical

situation here.” However, in coming to this conclusion, Dr. Levin acknowledged that he did

not rule out the petitioner’s first accident as a contributory cause of his disability.

¶ 43 4. The Board’s Three Independent Medical Evaluations

¶ 44 Pursuant to section 3-115 of the Pension Code (40 ILCS 3-115 (West 2006)), the Pension

Board appointed three independent medical evaluators to determine the extent and cause of

the petitioner’s disability. These evaluations were introduced as evidence at the petitioner’s

pension hearings. As shall be elaborated below, all three physicians found that the petitioner

was permanently disabled and that the disability was at least in part caused by the February

21, 2004, car accident.

¶ 45 a. Dr. Gary Shapiro

¶ 46 Dr. Gary Shapiro, a spine surgeon with the Illinois Bone and Joint Institute, examined

the petitioner on October 30, 2007, and issued a certificate finding that the petitioner was

permanently “disabled.” Dr. Shapiro attached a report explaining his findings. In that report,

Dr. Shapiro concluded that “full time disability [was] reasonable given the job requirements

[of] a police officer.” After examining the petitioner and reviewing his medical records, Dr.

Shapiro noted that prior to the February 21, 2004, accident, the petitioner suffered from a

preexisting degenerative disc disease at L3-L4 “since the lack of hydration would not have

occurred at the time of injury,” but that the disc bulging and impingement on the existing

nerve roots” as well as the “disc herniations” were sustained at the time of the February 2004

accident. Dr. Shapiro further noted that the subsequent, June 1, 2004, car accident “most

likely reaggravated the degenerative disc disease pain from the original accident.” Dr.

Shapiro concluded that the petitioner’s explanation of how the injuryoccurred was consistent

with his findings.

¶ 47 b. Dr. Miledones N. Eliades

¶ 48 Dr. Miledones Eliades, a physician with the Center for Spine Care in Evanston, evaluated

the petitioner on November 5, 2007, and similarly issued a certificate finding the petitioner

permanently “disabled.” After reviewing all of the petitioner’s medical records and

examining the petitioner, Dr. Eliades concluded that the petitioner’s disability “arises from

injuries sustained in the motor vehicle accident on February 21, 2004.” He further concluded

that the subsequent vehicle accident on June 1, 2004, did not contribute to this disability.

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¶ 49 c. Dr. Gary M. Yarkony

¶ 50 Dr. Gary M. Yarkony, a physician at the Rehabilitation Medicine Specialists Group in

Elgin, examined the petitioner on November 12, 2007. He, too, issued a certificate finding

the petitioner permanently “disabled.” Dr. Yarkony opined that because the petitioner’s

radicular symptoms began following his initial February 21, 2004 accident, the injuries

sustained in that accident were the underlying cause of the petitioner’s disability. Dr.

Yarkony further found that the second June 1, 2004, accident only exacerbated the initial

injury.

¶ 51 5. Physicians Evaluating Petitioner for Purposes of Workers’ Compensation Benefits

¶ 52 During the administrative hearings, the Pension Board also introduced copies of

depositions of two independent medical evaluators (Dr. Alexander Ghanayem and Dr.

Thomas Gleason), who examined the petitioner at the request of the Village for purposes of

assessing the viability of the temporary workers’ compensation disability benefits that the

petitioner was receiving while still employed by the Village.

¶ 53 a. Dr. Alexander J. Ghanayem

¶ 54 Dr. Ghanayem examined the petitioner on February 9, 2006, and August 2, 2006. In his

deposition, taken on January 14, 2008, Dr. Ghanayem testified that he had no independent

recollection of either of these examinations and that he would refrain from providing any

opinion as to what caused the petitioner’s disability.

¶ 55 b. Dr. Thomas F. Gleason

¶ 56 Dr. Thomas Gleason, a physician with the Illinois Bone and Joint Institute, was deposed

on June 17, 2008, and testified that he evaluated the petitioner on behalf of the Village’s

workers’ compensation carrier. He issued a report on February 28, 2008, wherein he

concluded that the petitioner’s February 21, 2004 accident neither caused nor contributed to

the petitioner’s disability. Dr. Gleason opined that the petitioner’s injuries from the February

2004 accident should have taken about eight weeks to improve and that “any further

complaints and associated treatment subsequent to June 1, 2004, would not be related to

February 21, 2004, but rather to other factors which may include the collision of June 1,

2004, as well as other unidentified incidents thereafter.” According to Dr. Gleason, the

February 2004 accident only temporarily aggravated an underlying preexisting condition

from which the petitioner fully recovered prior to June 1, 2004. He explained that an

identifiable injury is not required to “develop a symptomatic low back condition which can

cause pain and disability.” Accordingly, Dr. Gleason concluded that the February 2004

accident did not “at all” contribute to the petitioner’s disability. On cross-examination, Dr.

Gleason admitted that in coming to this conclusion, he does not recall reviewing Dr.

Cottrell’s May 21, 2004, notes.

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¶ 57 c. Dr. Samuel Chmell

¶ 58 To counterthe findings of Dr. Gleason, while seeking temporaryworkers’ compensation

disability benefits, in 2008, the petitioner, represented by an attorney, hired his own medical

expert, Dr. Samuel Chmell, to provide an independent medical evaluation about his

condition. This evaluation was introduced as evidence during the petitioner’s pension

hearings. After examining the petitioner on July 12, 2008, and on the basis of the medical

records of the petitioner’s treating physicians, Dr. Chmell concluded that the petitioner was

still experiencing lower back pain when he was reinjured in the June 1, 2004, car accident.

Dr. Chmell was unable to isolate one accident as the cause of the petitioner’s disability but

rather concluded that the need for petitioner’s surgery was attributable to both car crashes.

¶ 59 6. The Pension Board’s Findings

¶ 60 After reviewing all of the evidence presented to it at the administrative hearings, the

Pension Board unanimously voted to deny the petitioner’s request for a “line-of-duty”

disability pension, and instead awarded him a “nonduty” disability pension. In doing so, the

Pension Board specifically found that the petitioner’s disability was not incurred by or result

from the performance of an “act of duty,” because: (1) the February 2004 accident did not

involve an act that inherently required special risks not ordinarily assumed by regular

citizens; and (2) the petitioner’s contention that he was exiting the gas station in pursuit of

the missing juvenile was contradicted by his CAD sheet. The Pension Board further found

that even if the petitioner was injured in the performance of “an act of duty,” he was not

entitled to a “line-of-duty” pension because his disability was not caused by the February

2004 car accident. The Board specifically found that the petitioner fully recovered from his

February 2004 injuries prior to the second, off-duty June 2004 accident, which ultimately

resulted in his permanent inability to perform the duties of a police officer.

¶ 61 B. The Circuit Court Proceedings

¶ 62 The petitioner appealed the decision of the Pension Board by filing a complaint for

administrative review with the circuit court. After a hearing, the circuit court reversed the

Pension Board’s order and granted the petitioner’s “line-of-duty” disability pension. In a

written order explaining its findings, the circuit court held that the petitioner was injured

while performing an “act of duty” and that his disability was at least in part caused by the

injuries he sustained in the February 21, 2004, vehicle crash. The Pension Board now

appeals.

¶ 63 II. ANALYSIS

¶ 64 On appeal, the Pension Board makes two arguments: (1) that the petitioner’s February

21, 2004, injury was not incurred in the performance of an “act of duty,” as is required

pursuant to section 3-114.1 of the Pension Code (40 ILCS 5/3-114.1 (West 2006)) in order

for an applicant to receive a “line-of-duty” disability pension; and (2) that, in either event,

even if the injury was incurred while the petitioner was performing an “act of duty,” the

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February 21, 2004, accident did not contribute to the petitioner’s disability but, rather, that

the disability resulted from his subsequent off-duty car accident. We will address each of

these contentions in turn.

¶ 65 A. “Act of Duty”

¶ 66 We begin with the Pension Board’s interpretation of an “act of duty.” Before addressing

the merits of this issue, however, we must first address the applicable standard of review. It

is well established that in administrative cases, our role is to review the decision of the

administrative agency, and not the determination of the trial court. Marconi v. Chicago

Heights Police Pension Board, 225 Ill. 2d 497, 531 (2006) (per curiam); see also Lindsey v.

Board of Education, 354 Ill. App. 3d 971, 978 (2004). Section 3-148 of the Pension Code

(40 ILCS 5/3-148 (West 2006)) provides that judicial review of the decision of the Board is

governed by the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006); see

also Marconi, 225 Ill. 2d at 532; see also AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 390 (2001); Robbins v. Board of Trustees of the

Carbondale Police Pension Fund, 177 Ill. 2d 533, 537 (1997)). The Administrative Review

Law provides that our review extends to all questions of fact and law presented by the entire

record. 735 ILCS 5/3-110 (West 2006); see also Marconi, 225 Ill. 2d at 532.

¶ 67 “The applicable standard of review–which determines the extent of deference afforded

to the administrative agency’s decision–depends on whether the question presented is a

question of fact, a question of law, or a mixed question of law and fact.” Marconi, 225 Ill.

2d at 532; see also Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit

Fund, 234 Ill. 2d 446, 463 (2009); City of Belvidere v. Illinois State Labor Relations Board,

181 Ill. 2d 191, 204 (1998) (“[t]he standard of review applicable to the agency’s decision

depends upon whether the question presented is one of fact or law”). An administrative

agency’s findings on questions of fact are deemed to be prima facie true (735 ILCS 5/3-110

(West 2006)), and a reviewing court will reverse the Board’s factual determinations only if

it concludes that theywere contrary to the manifest weight of the evidence. Illinois Fraternal

Order of Police Labor Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d 729,

736 (2001) (“[T]he decision is against the manifest weight of the evidence only if the

opposite conclusion is clearly evident.”). The Board’s conclusions of law, however, are not

entitled to the same deference, and we review them de novo. Illinois Fraternal Order of

Police Labor Council, 319 Ill. App. 3d at 736. If the question presented for review is one of

mixed law and fact, then a yet third standard applies, and we review the Board’s decision to

determine if it was clearly erroneous. City of Belvidere, 181 Ill. 2d at 204; see also

Kouzoukas, 234 Ill. 2d at 463-64; see also Illinois Fraternal Order of Police Labor Council,

319 Ill. App. 3d at 736. Under any standard of review, the petitioner to an administrative

proceeding bears the burden of proof, and relief will be denied if he fails to sustain that

burden. Marconi, 225 Ill. 2d at 532-33.

¶ 68 In the present case, the Pension Board contends that our review of whether the petitioner

sustained his injuries while performing an “act of duty” should be under a clearly erroneous

standard. The petitioner, on the other hand, argues that the applicable standard of review is

de novo because the definition of an “act of duty” is a matter of statutory construction and

therefore presents a purely legal question, which requires no deference to the administrative

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agency’s findings. We find that as between the two, the clearly erroneous standard is more

appropriate.

¶ 69 Although the petitioner may be correct that the interpretation of the statutory term “act

of duty” requires de novo review, that definition must be applied to and depend upon the

sufficiency of facts presented to the Board during the disability hearing. Filskov v. Board of

Trustees of the Northlake Police Pension Fund, 409 Ill. App. 3d 66, 69, 71 (2011) (noting

that whether a police officer has suffered an injury while performing an “ ‘act of duty’ ” is

“fact specific” and requires an “examination of the legal effect of a given set of facts”

(internal quotation marks omitted)). While there appears to be some varying discussion

among the appellate courts as to which standard of review applies when the facts in the

record with respect to the petitioner’s conduct and capacity in sustaining the injury are

undisputed, where, as here, the record reveals that the administrative agency applied 9

disputed facts to the definition of an “act of duty,” the standard of review is clearly

erroneous. See City of Belvidere, 181 Ill. 2d at 205. Underthis standard, an agency’s decision

will not be upheld only where “the reviewing court, on the entire record, is ‘left with the

definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service,

Inc., 198 Ill. 2d at 395 (quoting United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948)).

¶ 70 Turning to the merits, we begin by noting that the Illinois Pension Code (40 ILCS 5/1-

101 et seq. (West 2006)) provides different pension benefits depending upon the

circumstances of a police officer’s incurred disability. An officer who is physically disabled

“as a result of sickness, accident, or injury incurred in or resulting from the performance of

an act of duty” is entitled to a “line-of-duty” pension equal to 65% of the salary attached to

his or her rank. See 40 ILCS 5/3-114.1 (West 2006). An officer disabled “as a result of any

cause other than the performance of an act of duty,” on the other hand, is entitled to a

disability pension of only 50% of the applicable salary. See 40 ILCS 5/3-114.2 (West 2006).

¶ 71 It is well established that an officer does not qualify for a “line-of-duty” disability

pension merely because he was injured while on duty. See Merlo, 383 Ill. App. 3d at 100;

A majority of courts have held that when the facts are undisputed, the interpretation of the 9

term “act of duty” in the Pension Code is an issue of statutory construction to be reviewed de novo.

See, e.g., Sarkis v. City of Des Plaines, 378 Ill. App. 3d 833, 836 (2008); White v. City of Aurora,

323 Ill. App. 3d 733, 735 (2001) (where the facts are undisputed, and the Board interpreted the

meaning of “act of duty” contained in the statute, the issue was one purely of statutory

interpretation); Fedorski v. Board of Trustees of the Aurora Police Pension Fund, 375 Ill. App. 3d

371, 373 (2007) (finding the dispute hinged on the determination of “act of duty” and, therefore, de

novo review applied); Alm v. Lincolnshire Police Pension Board, 352 Ill. App. 3d 595, 598 (2004)

(de novo review applied where the facts were undisputed and the only issue was the meaning of “act

of duty”). Several other courts, on the other hand, have found, on what appeared to be undisputed

facts, that the issue of whether the police officer was performing an “act of duty” presented a mixed

question of fact and law, and therefore the clearly erroneous standard of review applied. See, e.g.,

Jones v. Board of Trustees of the Police Pension Fund, 384 Ill. App. 3d 1064, 1068 (2008); see also

Merlo v. Orland Hills Police Pension Board, 383 Ill. App. 3d 97, 99-101 (2008).

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see also White v. City of Aurora, 323 Ill. App. 3d 733, 736 (2001); see also Jones, 384 Ill.

App. 3d at 1069 (“[s]omethingmore than being ‘on duty’ is required to receive a line-of-duty

pension”); Sarkis, 378 Ill. App. 3d at 837 (“An officer does not perform ‘an act of duty’

merely by being on duty at the relevant time.”). Although article III of the Pension Code,

which pertains to police pension funds for cities that have a population of less than 500,000,

such as the Village of Mount Prospect in this case, does not explicitly define the term “act

of duty,” article V of the Pension Code, pertaining to police pension funds in municipalities

with populations over 500,000, does. See 40 ILCS 5/5-113 (West 2006). Our supreme court

has specifically stated that the “act of duty” definition contained in article V of the Pension

Code applies to the use of that term in article III. See Robbins v. Board of Trustees of the

Carbondale Police Pension Fund, 177 Ill. 2d 533, 540 (1997) (“[w]e may look to article V

of the Pension Code for a definition of language used in article III of the Code”); see also

Jones, 384 Ill. App. 3d at 1069; Filskov, 409 Ill. App. 3d at 70 n.1.

¶ 72 Section 5-113 of the Pension Code defines the term “act of duty” as “[a]ny act of police

duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary

walks of life, imposed on a policeman.” 40 ILCS 5/5-113 (West 2006). In Johnson v.

Retirement Board of the Policemen’s Annuity & Benefit Fund, 114 Ill. 2d 518 (1986), our

supreme court for the first time interpreted the definition of an “act of duty,” as defined by

section 5-113 of the Pension Code, and expressly rejected the notion that the term “special

risk” encompasses only inherently dangerous activities. Johnson, 114 Ill. 2d at 521; see also

Alm, 352 Ill. App. 3d at 599.

¶ 73 In Johnson, a police officer was at his assigned post when a citizen from across an

intersection called to him asking for assistance in a traffic accident. Johnson, 114 Ill. 2d at

520. While crossing the intersection, the police officer slipped and injured himself. Johnson,

114 Ill. 2d at 520. Our supreme court held that the police officer’s actions were an “act of

duty” as defined by the Pension Code because when he suffered the injury, the officer was

discharging his sworn duties by responding to a citizen’s call. Johnson, 114 Ill. 2d at 520.

In coming to this conclusion, our supreme court specifically rejected the pension board’s

argument that the officer was not entitled to “line-of-duty” benefits because crossing the road

did not involve special risks. Johnson, 114 Ill. 2d at 522. As the court noted:

“The provisions of [the Pension Code] conferring the right to duty-disability benefits

do not require that an officer be injured by an act of duty. Rather, the duty disability

is awarded when an officer is ‘disabled *** as the result of injury incurred *** in the

performance of an act of duty.’ (Emphasis added.) [Citation.] In the plaintiff’s case,

the act of duty was the act of responding to the call of a citizen for assistance. In

performing that act, he was injured.

The defendant’s interpretation envisions a police officer involved in a gun battle,

a high-speed car chase, or some other obviously dangerous situation in order to

qualify for duty-disability benefits. This is an overly restrictive and unrealistic

interpretation. If this court were to adopt the defendant’s narrow reading *** it could

discourage police officers from the dedicated and enthusiastic performance of their

duties ***.” Johnson, 114 Ill. 2d at 522-23.

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¶ 74 Furthermore, in Johnson, our supreme court reiterated that officers discharging their

duties to protect citizens perform many tasks, such as driving automobiles, climbing stairs,

and even crossing streets, that are similar to those involved in civil occupations. Johnson,

114 Ill. 2d at 521-22. The supreme court then held that in determining whether an officer is

entitled to a “line-of-duty” pension, “[t]he crux is the capacity in which the police officer is

acting.” Johnson, 114 Ill. 2d at 522. Accordingly, an officer performing duties involving

special risks will be entitled to “line-of-duty” benefits even if the immediate cause of injury

is an act involving only an ordinary risk. See Johnson, 114 Ill. 2d at 522.

¶ 75 Since Johnson, in determining whether an officer is entitled to a “line-of-duty” pension,

the majority of our appellate courts have focused on the capacity in which the officer was

acting at the time of his injury. See, e.g., Merlo, 383 Ill. App. 3d at 102; Jones, 384 Ill. App.

3d at 1072; Alm, 352 Ill. App. 3d at 602; but see, White, 323 Ill. App. 3d at 736. Accordingly,

our courts have found that an officer was injured in the performance of an “act of duty” when

the officer: (1) was involved in a car accident while driving a police transport van on patrol

(Jones, 384 Ill. App. 3d at 1074); (2) was riding a bicycle on patrol (Alm, 352 Ill. App. 3d

at 601); (3) fell through a porch while serving a notice to appear (Wagner v. Board of

Trustees of the Police Pension Fund, 208 Ill. App. 3d 25, 29 (1991)); (4) injured his shoulder

while raising a railroad crossing gate (Sarkis, 378 Ill. App. 3d at 841); and (5) responded to

a civilian call reporting juveniles stacking concrete parking blocks in a parking lot and

suffered an injurywhen he attempted to remove the hazard by unstacking the concrete blocks

(Merlo, 383 Ill. App. 3d at 98). On the other hand, our courts have found that an officer was

not injured in the performance of an “act of duty” where: (1) the officer was injured when

he attempted to sit down in a chair at his desk to fill out a police report and the chair rolled

out from underneath him (Morgan v. Retirement Board of the Policemen’s Annuity &Benefit

Fund, 172 Ill. App. 3d 273, 276-77 (1988)); (2) the officer was injured while exiting his

police vehicle to place a parking citation on an illegally parked car and the police department

also employed civilians to issue parking citations (White, 323 Ill. App. 3d at 736); (3) an

evidence technician was injured when the unmarked police vehicle in which he was riding

as a passenger was struck while stopped at a red light (Fedorski, 375 Ill. App. 3d at 375); and

(4) the officer was injured when attempting to enter the rear seat of an unmarked squad car

still in the police station parking lot and admittedly without having yet resumed his patrol

duties (Filskov, 409 Ill. App. 3d at 72-73).

¶ 76 In the present case, the Pension Board found that the petitioner was not performing an

“act of duty” when he was injured in the February 21, 2004, accident because nothing about

his investigation of the missing juvenile inherently involved special risks not ordinarily

assumed by a citizen in ordinarywalks of life. The Board initially disbelieved the petitioner’s

testimony that at the time of the accident, he was continuing his investigation into the

missing juvenile and attempting to turn left onto Rand Road to locate the juvenile. The Board

noted that the petitioner never told the dispatch center about the conversation he had with the

gas attendant in which he learned that the juvenile had just left the gas station and was

walking south east on Rand Road. Rather, the Board pointed out, the petitioner’s dispatch

records to central command revealed that once he went to the gas station, the petitioner

logged in his computer the words “NO JUVS HERE,” and then “cleared and closed” the call

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at 17:30:01, prior to the accident.

¶ 77 Under these facts, the Board found that at the time of the car accident the petitioner was

not involved in an investigation but was merely “driving his squad car,” which is an activity

that does not involve any special risks. In support of this contention, the Board pointed out

that in his own testimony the petitioner stated that “there was no reason given the nature of

this case that [he] had to use extraordinary efforts to get out of the gas station in order to

pursue the juvenile.” In addition, the petitioner admitted that at the time of the accident, he

did not have either the lights or the sirens activated on his squad car. For the reasons that

follow, we disagree with the findings of the Pension Board.

¶ 78 Although we have some misgivings about the Board’s rejection of the petitioner’s

testimony regarding his continued investigation of the missing juvenile solely on the basis

of the petitioner’s dispatch records, we recognize that the Board’s factual findings, such as

its conclusion that the petitioner was not proceeding with his investigation at the time of the

car accident, are given great deference and are not to be disturbed unless manifestly

erroneous. See Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 736. We

need not, however, determine whether this particular finding by the Board was against the

manifest weight of the evidence, because we conclude that even if, as the Board found, the

petitioner had completed his investigation of the missing juvenile, as he was departing from

the gas station in his squad car, he was nevertheless performing patrol duties, which

inherently involve special risks not ordinarily assumed by regular citizens in their daily lives.

¶ 79 In that respect, we find the decisions of Jones, 384 Ill. App. 3d at 1071-72, and Alm, 352

Ill. App. 3d at 602, directly on point. In Jones, the police officer was injured when a transport

van he was driving on routine patrol was hit by another vehicle. Jones, 384 Ill. App. 3d at 10

1065-66. As a result of the accident, the officer suffered shoulder and back injuries and later

underwent back surgery. Jones, 384 Ill. App. 3d at 1066. The officer applied for a “line-ofduty” pension, but the pension board rejected his application and instead found that he was

entitled only to a “nonduty” disability pension. Jones, 384 Ill. App. 3d at 1066. In doing so,

the pension board specifically found that “driving a [police] van did not involve a ‘special

risk’ ” and therefore did not constitute the performance of an “act of duty.” Jones, 384 Ill.

App. 3d at 1066. The circuit court reversed the decision of the pension board, and the

appellate court affirmed. Jones, 384 Ill. App. 3d at 1066-67.

¶ 80 The appellate court explicitly rejected the board’s conclusion that the officer was not

performing an act of duty because he only “encountered the general risks attendant to driving

a car and driving the vehicle on routine patrol did not involve a special risk.” Jones, 384 Ill.

App. 3d at 1071. Rather, the court in Jones reiterated that the focus of the analysis is on the

capacity in which the officer is undertaking the activity by which he is injured, and not on

the activity itself. Jones, 384 Ill. App. 3d at 1073. Accordingly, the Jones court found that

“even if driving a car involves only an ordinary risk [the police officer] was [nevertheless]

acting in a capacity that involved special risk when he was injured–routine patrol.” Jones,

The Jones court noted that it was unclear from the record whether the transport van was 10

a marked police vehicle. Jones, 384 Ill. App. 3d at 1065.

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384 Ill. App. 3d at 1073.

¶ 81 In coming to this conclusion, the court in Jones analyzed the officer’s job description and

noted that, among other things, a patrol officer must have his “attention and energies directed

toward being prepared to deal with any eventuality,” “possess safety-minded driving ability

and be conscious of all types of road conditions either in the course of normal patrol or when

responding to an emergency call” and “control and regulate vehicular and pedestrian traffic

as needed.” (Internal quotation marks omitted.) Jones, 384 Ill. App. 3d at 1072-73. The court

concluded that there were special risks associated with routine patrol, namely “being

prepared to respond to *** citizen requests, controlling and regulating traffic, and

maintaining constant vigilance,” which were not those that would be encountered byordinary

citizens, and that therefore the officer was performing an “act of duty” when he was injured

even though the act itself involved merely driving a vehicle. See Jones, 384 Ill. App. 3d at

1073.

¶ 82 Similarly, in Alm, the appellate court rejected the pension board’s finding that a police

officer who injured his knee while on bicycle patrol was not entitled to a “line-of-duty”

pension because riding a bicycle did not constitute preforming an “act of duty.” Alm, 352 Ill.

App. 3d at 602. The officer in that case was on bicycle patrol when he noticed significant

pain in his right knee. Alm, 352 Ill. App. 3d at 597. The officer had not fallen or had any

other sort of accident prior to experiencing the pain. Alm, 352 Ill. App. 3d at 597. After

immediatelyseeking treatment, the officer was diagnosed with a tearin the “medial meniscus

of his right knee.” Alm, 352 Ill. App. 3d at 596. The officer sought a “line-of-duty pension,”

but the pension board denied his request and held that he had not been injured in the

performance of an “act of duty,” since the “manner in which [he] was pedaling his bicycle

when his knee began to hurt did not involve any special risk not shared by civilians.” Alm,

352 Ill. App. 3d at 597. The circuit court affirmed the decision of the pension board. Alm,

352 Ill. App. 3d at 597.

¶ 83 In reversing the board’s decision, the appellate court in Alm found that “pedaling the

bicycle” constituted “an act of duty,” because while on patrol the officer “faced risks not

ordinarily encountered by civilians,” including, “falls and collisions as well as dangerous

encounters with unsavory elements of society.” Alm, 352 Ill. App. 3d at 601. The court in

Alm found it insignificant that the bicycling officer was not responding to a call for assistance

or facing those specific risks at the exact time he suffered the injury. Alm, 352 Ill. App. 3d

at 601-02. Rather, just like in Jones, the Alm court reiterated that in Johnson, our supreme

court focused the inquiry on the capacity in which the officer was acting at the time of the

physical act which caused his injury, and not on the act itself. Alm, 352 Ill. App. 3d at 602.

The court in Alm found that while riding his bicycle the officer was acting in a capacity of

patrol officer, a capacity that involved special risks. Alm, 352 Ill. App. 3d at 601. In

concluding that the bicycle patrol involved special risks, the court in Alm, just like the court

in Jones, focused on the officer’s testimony regarding his daily patrol duties and noted that

the officer was required to “ride his bicycle at night over varying terrain, looking after his

own personal safety while also remaining vigilant in the performance of his patrol duties,”

and “carrying a significant amount of additional weight [namely, his uniform and weapons].”

Alm, 352 Ill. App. 3d at 601.

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¶ 84 In the present case, just as in Jones and Alm, the record reveals that although at the time

of the car accident the petitioner performed the act of driving, he performed that act in the

capacity of a patrol officer, which involved “special risks” not ordinarily assumed by

ordinary citizens, so as to be entitled to a “line-of-duty” pension. The record revels, and it

is uncontroverted that on the day of the accident, the petitioner was a patrol officer for the

Village of Mount Prospect, with an assigned patrol shift from 3 p.m. to 11 p.m. The

petitioner testified, and it was undisputed by the record, that his duties as a patrol officer

required that he actively patrol the Village (in his squad car, on his bicycle or on foot) in

order to “protect the property and person of the citizens of the Village.” The petitioner was

required to conduct traffic stops, respond to calls, interview witnesses and suspects, and on

occasion to use force to restrain offenders and suspects. In addition, each day, while on patrol

duty, the petitioner was required to wear a significant amount of heavyequipment, including,

inter alia, police boots, a bulletproof vest, loaded weapons, ammunition, handcuffs, a baton

and a flashlight. Accordingly, regardless of whether the petitioner was continuing his

investigation into the missing juvenile or whether he had completed his response to this

particular call, the record reveals that at the time of the accident, the petitioner, who was in

full gear inside his marked squad car, was performing his patrol duties, which required

special skills not ordinarilyencountered byeverydaycitizens, namely, “hav[ing] his attention

and energies directed towards being prepared to deal with any eventuality.” Johnson, 114 Ill.

2d at 522. For these reasons, we find that he was entitled to a “line-of-duty” pension. See

Alm, 352 Ill. App. 3d at 602 (relying on our supreme court’s decision in Johnson, to hold that

it was immaterial whether the officer was responding to a call, as long as he was performing

his routine patrol duties at the time of the injury; noting that “[w]hether an officer has

discretion to perform an act is relevant to determine whether the capacity in which he is

acting involves special risk and is, therefore, an act of duty. However, the discretion involved

in performing specific physical activities is not relevant because such discretion does not

bear upon the capacity in which the officer is acting.”); see also Johnson, 114 Ill. 2d at 521-

22 (“Police officers assigned to duties that involve protection of the public discharge those

duties by performing acts which are similar to those involved in many civilian occupations.

Driving an automobile, *** walking up stairs, and even crossing the street are activities

common to many occupations, be it policeman or plumber. *** The crux[, however,] is the

capacity in which the police officer is acting.”); see also Jones, 384 Ill. App. 3d at 1073

(noting that “[w]hile job title alone is insufficient to establish performance of an act of duty”

the officer “was performing the duties of patrol officer at the time of the injury, and those

duties involved special risk. As the job description reflects, [the officer] had to, like the

officer in Johnson, have his ‘attention and energies directed toward being prepared to deal

with any eventuality.’ [Citation.]”); see also Merlo, 383 Ill. App. 3d at 102 (finding it

insignificant that juveniles, reported for stacking concrete parking blocks in a parking lot,

had already left the premises, when the officer arrived at the scene, and that the village public

works department was designated the duty of moving back the parking blocks, in

determining that officer was performing an “act of duty” when he decided to voluntarily

unstack the parking blocks).

¶ 85 In order to circumvent the holdings in Jones and Alm, the Board relies on the decision

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in White, 323 Ill. App. 3d at 736. In that case, which was decided prior to both Jones and

Alm, a divided panel of the Second District concluded that an officer on patrol was not

entitled to a “line-of duty” disability pension when he slipped while exiting his vehicle to

place a parking citation on an illegally parked car. White, 323 Ill. App. 3d at 736. The

majority in White found that the police officer’s action of citing a parking ticket amounted

to a clerical action, which can be performed by regular citizens in ordinary life, and that

therefore the patrol officer was not performing an “act of duty” when he was injured. White,

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323 Ill. App. 3d at 736.

¶ 86 Since the decision in White, however, more than one appellate court has explicitly

rejected the holding of the White majority, finding that the majority improperly focused on

the act performed rather than the capacity in which the officer was acting at the time of the

injury, in direct contravention of our supreme court’s explicit instructions in Johnson, 114

Ill. 2d at 522, that “[t]he crux is the capacity in which the police officer is acting.” See, e.g.,

Alm, 352 Ill. App. 3d at 602 (“we believe that the majority in White focused on the act

performed instead of the capacity in which the officer was acting. The court in White focused

on the manner in which the officer acted in stopping and exiting his vehicle and the

discretion involved in performing these acts. However, we believe that under Johnson the

proper focus should have been the capacity in which the officer was acting, namely, issuing

a parking citation.”); Jones, 384 Ill. App. 3d at 1072 (“We *** reject the reasoning of White.

As stated by the supreme court in Johnson, the ‘crux is the capacity in which the officer was

acting.’ [Citation.] In White, the court improperly focused on the specific act–exiting a

car–and not the capacity in which the officer was acting.”); Merlo, 383 Ill. App. 3d at 102

(rejecting the holding of White and noting that the capacity in which the police officer is

acting must be examined to determine whether the police officer’s injury occurred while he

performed an “act of duty”). We agree with the rationale of Alm, Jones, and Merlo, and too

reject the holding in White. Accordingly, for the aforementioned reasons, we conclude that

at the time of the car accident, the petitioner was acting in the capacity of a patrol officer,

which required him to undertake special risks not faced by ordinary citizens, and that he was

therefore entitled to a full “line-of-duty” disability pension.

¶ 87 In so deciding, we have considered the cases of Fedorski, 375 Ill. App. 3d at 372,

Morgan, 172 Ill. App. 3d at 276-77, and Filskov, 409 Ill. App. 3d at 72, cited to by the

Pension Board and find them factually distinguishable. Neither Fedorski nor Morgan

It appears that in coming to this conclusion the majority in White noted as relevant,

11

although not dispositive, that while the police department required its officers to issue parking

tickets, it also employed civilians to issue such tickets, so that the clerical nature of the act was more

apparent. White, 323 Ill. App. 3d at 736. This reasoning, however, has been explicitly rejected by

the subsequent decision in Merlo, where the court found that a patrol officer’s act in unstacking

parking blocks stacked by juvenile delinquentsinvolved special risks even though the village public

works department employed civilians to unstack or remove such parking blocks. See Merlo, 383 Ill.

App. 3d at 102-03 (“The petitioner’s duty to protect the public was not eliminated because the

village public works department had a duty to remove the stacked parking blocks at some later

time.”).

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involved officers performing patrol duties at the time of their injuries. In Fedorski, an

evidence technician, whose duties that day involved taking photographs of suspects in jail,

was injured after an unmarked vehicle that he was driving was struck from behind. Fedorski,

375 Ill. App. 3d at 375. Similarly, in Morgan, the officer was injured, not while on police

patrol, but rather while filling out paperwork inside the police station, when he missed his

chair and fell on the floor. Morgan, 172 Ill. App. 3d at 276-77.

¶ 88 Similarly, in Filskov, a patrol officer, who admitted that he had not yet resumed his patrol

duties, was injured as he attempted to enter the backseat of an unmarked squad car in the

police station parking lot. Filskov, 409 Ill. App. 3d at 72. The officer was injured when

another officer in the driver’s seat accidentally put the car into gear and ran over the officer’s

foot. Filskov, 409 Ill. App. 3d at 72. In finding that the officer was not injured while

performing an “act of duty,” the court found relevant that the officer had not yet resumed his

patrol duties. Filskov, 409 Ill. App. 3d at 72. As discussed in detail above, unlike in Filskov,

here the record establishes that the petitioner was performing his regular patrol duties when

his marked squad car was hit by another vehicle.

¶ 89 For all of the aforementioned reasons, we find the Board’s conclusion that the petitioner

was not performing an “act of duty” when he incurred the accident to be clearly erroneous.

See Alm, 352 Ill. App. 3d at 602; Johnson, 114 Ill. 2d at 521-22; Jones, 384 Ill. App. 3d at

1073; Merlo, 383 Ill. App. 3d at 102.

¶ 90 B. The Cause of the Petitioner’s Disability

¶ 91 The Pension Board next argues that its decision to deny the “line-of-duty” disability

pension should nevertheless be upheld because the petitioner’s disability did not result from

his on-duty February 2004 car accident but, rather, solely from his subsequent off-duty June

2004 vehicle collision.

¶ 92 In order to determine whether the Pension Board was correct, we must look to the record

to determine the cause of the pensioner’s disability. It is well established that “a disability

may result from multiple causes,” and that in order to obtain a full line-of-duty pension, “[a]

claimant need not prove that a duty-related accident is the sole cause, or even the primary

cause, of his disability.” Luchesi v. Retirement Board of the Firemen’s Annuity & Benefit

Fund, 333 Ill. App. 3d 543, 550 (2002) (citing Barber v. Board of Trustees of the Village of

South Barrington Police Pension Fund, 256 Ill. App. 3d 814, 818 (1993)); see also Wade v.

City of North Chicago Police Pension Board, 226 Ill. 2d 485, 505 (2007). Rather, a claimant

must only prove that the duty-related accident “is a causative factor contributing to the

claimant’s disability. “ Luchesi, 333 Ill. App. 3d at 550 (citing Hart Carter Co. v. Industrial

Comm’n, 89 Ill. 2d 487, 494 (1982)); see also Wade, 226 Ill. 2d at 505 (“a disability pension

may be based upon the line-of-duty aggravation of a preexisting physical condition” since

“ ‘[t]here is no requirement that the duty- related incident be the originating or primary cause

of the injury, although a sufficient nexus between the injury and the performance of the duty

must exist’ ” (quoting Barber, 256 Ill. App. 3d at 818)); Wilfert v. Retirement Board of the

Firemen’s Annuity & Benefit Fund, 263 Ill. App. 3d 539, 543 (1994) (“plaintiff need not

prove that an injury received on duty was the sole cause of his disability; the injury need only

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have contributed to the disability”); Alm, 352 Ill. App. 3d at 598 (“The performance of an act

of duty need not be the sole cause of the disability, because *** ‘section 3-114.1 does not bar

the award of a line-of-duty disability pension based upon the aggravation of a preexisting

physical condition.’ ” (quoting Olson v. City of Wheaton Police Pension Board, 153 Ill. App.

3d 595, 598 (1987))).

¶ 93 Before deciding the merits of this issue, we first address the standard of review. The

Board contends that factual findings of an administrative agency are prima facie true and are

to be reviewed under the deferential manifest weight of the evidence standard. The petitioner,

on the other hand, contends that the standard of review should be clearly erroneous because

the question of legal causation requires an interpretation of the Pension Code and the

application of the appropriate facts to that interpretation.

¶ 94 Contrary to the petitioner’s position, there is no legal dispute here, as the parties agree

that the petitioner is permanently disabled and can no longer perform the duties of a police

officer. In addition, there is no dispute as to the definition of causation, as the parties agree

that the petitioner need not “prove that a duty-related accident is the sole cause, or even the

primary cause, of his disability,” but merely that he must show that the duty-related accident

was “a causative factor contributing” to that disability. Luchesi, 333 Ill. App. 3d at 550; see

also Wade, 226 Ill. 2d at 505. Therefore, the only question that is presented here is whether

the first, on-dutyFebruary2004 accident contributed to the petitioner’s disability, or whether

the petitioner fully recovered from the injuries sustained in that car accident, so that the

second, off-duty June 2004 accident constituted the sole cause of his disability. This is a

purely factual determination which we review under a manifest weight of the evidence

standard. See, e.g., Wade, 226 Ill. 2d at 504-05; see also Marconi, 225 Ill. 2d at 534.

¶ 95 Underthis standard, an agency’s findings are generally afforded great deference and will

be found to be against the manifest weight of the evidence “only if the opposite conclusion

is clearly evident.” (Internal quotation marks omitted.) Marconi, 225 Ill. 2d at 534. 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.” Abrahamson v.

Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).

¶ 96 However, we emphasize that the deference accorded to the administrative agency’s

decision is not without limitation. See Wade, 226 Ill. 2d at 507 (“[e]ven under the manifest

weight standard *** the deference we afford the administrative agency’s decision is not

boundless”). “Although it is true that the Board’s credibility determinations [are to be]

afforded considerable weight, they are not immune from review.” Kouzoukas, 234 Ill. 2d at

465; see also Bowlin v. Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App.

3d 205, 210-12 (2006) (“our review cannot amount to a rubber stamp of the proceedings

below merely because the Board heard witnesses, reviewed records, and made the requisite

findings”). Rather, a reviewing court may put aside any findings that are clearly against the

manifest weight of the evidence. Kouzoukas, 234 Ill. 2d at 465. See also Bowlin, 368 Ill.

App. 3d at 211-12 (“Even when the decision is supported by some evidence, which if

undisputed would sustain the administrative finding, it is not sufficient if upon a

consideration of all the evidence the finding is against the manifest weight. [Citation.] A

reviewing court will not hesitate to grant relief where the record does not show evidentiary

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support for the agency’s determination. [Citation.]” (Emphasis added.)).

¶ 97 In the present case, the Pension Board found that the petitioner fully recovered from his

initial on-duty February 2004 accident before he incurred injuries in the second, off-duty

June 2004 collision. For the reasons that follow, we find this conclusion to be against the

manifest weight of the evidence.

¶ 98 There is nothing in the record, aside from Dr. Gleason’s opinion, that could support the

Pension Board’s conclusion that the petitioner fully recovered from the injuries he sustained

during his on-duty February 2004 car accident, so as to exclude this accident as a

contributing factor of his permanent disability. In fact, eight out of nine physicians who were

asked to offer opinions as to the cause of the petitioner’s disability, including all three of the

Board’s own independent medical evaluators, concluded that the February 21, 2004,

automobile accident at least in part contributed to the petitioner’s disability.

¶ 99 Three of the petitioner’s treating physicians (Dr. Jacker, Dr. Lannoff, and Dr. Levin) and

one of the Board’s own medical evaluators (Dr. Shapiro) specifically found that prior to

either car accident the petitioner suffered from a preexisting degenerative disc disease at

levels L3 and L4. These physicians found that the petitioner’s permanent disability (i.e., the

herniated and bulging discs and the nerve impingement) resulted from a traumatic injury,

which exacerbated the petitioner’s preexisting condition. None of the remaining physicians

who were asked to give an opinion as to the cause of the petitioner’s disability negated or

disagreed with this conclusion. In fact, the only disagreement among these eight physicians

appears to have revolved around whether (and if so, to what extent) the second accident

exacerbated either the injury suffered by the petitioner during his initial car accident or the

petitioner’s preexisting degenerative disc condition.

¶ 100 The Pension Board nevertheless found that the petitioner’s on-duty February 2004

accident did not contribute “at all” to the petitioner’s permanent disability. In doing so, the

Pension Board seems to have relied upon the opinions of Dr. Gleason and Dr. Levin, as well

as the fact that petitioner never told any of his treating physicians about his June 2004 offduty accident. However, the Pension Board’s finding fails to take into account that, when

informed of the second accident, none of the eight physicians, excluding Dr. Gleason,

dismissed the first accident as a contributing factor to the petitioner’s disability.

¶ 101 In fact, four physicians conclusively opined that it was the first, February 2004 on-duty

accident that caused the petitioner’s permanent injury, i.e., his herniated discs, while the

second, June 2004 accident merely exacerbated the petitioner’s symptoms. Dr. Jacker, the

first orthopedic physician to treat the petitioner after his family physician, specifically

testified that although at the time of his diagnosis he was unaware of the petitioner’s second

accident, after being informed of this accident, his opinion that the petitioner’s underlying

condition was caused by the first accident, which exacerbated the petitioner’s preexisting

condition, did not change. Two of the Board’s own independent medical examiners, Dr.

Shapiro and Dr. Yarkony, agreed with this conclusion. After noting that the petitioner

suffered from a preexisting degenerative disc disease, “since the lack of hydration would not

have occurred at the time of injury,” Dr. Shapiro specifically found that the February 2004

on-duty accident caused the disc herniating and impingement of the existing nerve roots,

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while the June 2004 off-dutyaccident “most likelyreaggravated the degenerative disc disease

pain from the original accident.” Dr. Yarkony similarly opined that the petitioner’s disability

was caused by the first accident, while the second one merely exacerbated the initial injury.

Dr. Eliades, the Board’s third independent medical evaluator, even went so far as to find that

the June 2004 accident played no part in the petitioner’s permanent disability.

¶ 102 The remaining four physicians merelyrefrained from determining which accident, if any,

caused the petitioner’s disability. Dr. Lannoff, the physician responsible for administering

the petitioner’s epidurals, specifically testified that in light of the petitioner’s preexisting

degenerative disc disease, he could not state which, if either, accident caused the petitioner’s

disability. Similarly, both Dr. Ghanayem and Dr. Chmell, who evaluated the petitioner for

purposes of his workers’ compensation benefits, refrained from offering an opinion as to the

cause of the petitioner’s disability. Dr. Chmell specifically stated that the disability could be

“attributable to both accidents,” because the petitioner was still experiencing lower back pain

when he was reinjured in June 2004.

¶ 103 Finally, although the Pension Board is correct that Dr. Levin, the orthopedic surgeon who

performed the petitioner’s back surgery, testified that after being informed of the petitioner’s

June 2004 accident, it was his opinion that the June 2004 accident was “more likely” the

cause of the petitioner’s disability, he also stated that he could not rule out the first accident

as a contributory cause of that disability. Dr. Levin specifically testified that it would be

“unrealistic” to believe that the first February 21, 2004, accident did not play a role in the

petitioner’s herniated discs and that both accidents were “contributory” to the petitioner’s

disability. In addition, when asked to state whether he believed that the petitioner fully

recovered from the February 2004 accident prior to his second June 2004 vehicle collision,

Dr. Levin could not give a conclusive opinion either way. Rather, Dr. Levin only testified

that depending upon how the medical records between February and June 2004 were

interpreted, the petitioner could be perceived as “anywhere from somewhat better, to

completely better, or maybe better, maybe not better.”

¶ 104 Despite the opinion of these eight physicians, six of whom physically examined the

petitioner (Dr. Levin, Dr. Jacker, Dr. Shapiro, Dr. Eliades, Dr. Yarkony, and Dr. Chmell),

the Pension Board nevertheless concluded that the petitioner fully recovered prior to his

second, June 2004 accident. In coming to this conclusion, the Pension Board relied upon the

sole opinion of Dr. Gleason, a physician appointed by the Village’s workers’ compensation

carrier to evaluate the petitioner for purposes of workers’ compensation benefits. Dr.Gleason

was the only physician who concluded that the petitioner’s disability was exclusively caused

by the latter automobile accident. Dr. Gleason specifically found that the petitioner’s injuries

from the February 2004 accident should have taken about eight weeks to improve and that

“any further complaints and associated treatment subsequent to June 1, 2004, would not be

related to the February 21, 2004, [accident], but rather to other factors, which may include

the collision of June 1, 2004.” Dr. Gleason opined that the February 2004 accident only

temporarily aggravated the petitioner’s underlying preexisting condition, from which the

petitioner fully recovered prior to June 2004. He further testified that an identifiable injury

is not required “develop a symptomatic low back condition which can cause pain and

disability.”

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¶ 105 Dr. Gleason’s opinion, however, unlike the opinions of the eight other physicians, was

not based upon a physical exam of the petitioner, but rather merely upon a review of the

petitioner’s medical records. Moreover, Dr. Gleason’s opinion as to the petitioner’s full

recovery from symptoms associated with his initial February 2004 accident was directly

contradicted by the notes of the petitioner’s family physician, Dr. Cottrell. When questioned

about the inconsistences between his opinion and Dr. Gleason’s medical records, Dr. Gleason

admitted on cross-examination that he did not review Dr. Cottrell’s May 21, 2004, notes. Dr.

Cottrell’s notes reveal that subsequent to the petitioner’s first, on-duty February 2004

accident, despite treatment attempts with physical therapy and medication, the petitioner

continued to experience pain, which fluctuated on a daily basis. Although some of the

records from Dr. Cottrell indicate that petitioner was improving and was permitted to return

to work off and on, nothing in the record indicates that his pain completely subsided or that

his injury was completely cured prior to the moment when he suffered the second injury. In

fact, Dr. Cottrell’s notes for May 21, 2004, indicate that during his examination, the

petitioner reported persistent back pain of “3/10” and occasionally “6/10,” causing Dr.

Cottrell to restart the petitioner on an anti-inflammatory and muscle relaxant. Dr. Cottrell

also ordered an X-ray of the petitioner’s lumbar spine and requested that petitioner return for

a follow-up evaluation two weeks later, a date that turned out to be after the second, off-duty

accident. In addition, Dr. Cottrell’s notes reveal that prior to the second accident, he

recommended that petitioner make an appointment with Dr. Jacker. The petitioner testified

that he made the appointment with Dr. Jacker prior to his June 1, 2004, accident, and there

is nothing in the record which contradicts that statement.

¶ 106 Under the aforementioned facts, we find the Pension Board’s conclusion that the

petitioner fully recovered from his February 2004 accident, so that the injuries he sustained

in that accident played no part whatsoever in his ultimate disability, to be contrary to the

manifest weight of the evidence. See Kouzoukas, 234 Ill. 2d at 464; Wade, 226 Ill. 2d at 507;

see also Bowlin, 368 Ill. App. 3d at 211-12 (“Even when the decision is supported by some

evidence, which if undisputed would sustain the administrative finding, it is not sufficient

if upon a consideration of all the evidence the finding is against the manifest weight.

[Citation.] A reviewing court will not hesitate to grant relief where the record does not show

evidentiary support for the agency’s determination. [Citation.]” (Emphasis added.)).

¶ 107 III. CONCLUSION

¶ 108 For all of the aforementioned reasons, we find that the petitioner is entitled to a full “lineof-duty” disability pension. We, therefore, affirm the circuit court’s reversal of the Pension

Board’s decision.

¶ 109 Affirmed.

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