## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Rose v. Board of Trustees of the Mount Prospect Police Pension Fu nd , 2011 IL App (1st) 102157

Appellate Court Caption MI CHAEL D. ROSE, Petitioner-Appellee
, v. THE BO ARD OF TRUSTEES OF THE MOUNT PROS PECT POL I CE PENSI ON FUN D, Def endant- Appellant.

District & N o. First District, F ourth Division
Docke t No. 1-10-2157

Filed September 15, 2011

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Petitioner was entitl ed to a full “line-of -du t y ” dis ability pension for the back injury he suffe red in an automobile acc iden t wh i l e on duty as a police office r and a second acc ident that occur red sever al months l ater while he was off duty
, and the Pension Boa rd’s denial of a “line-of

-duty” disability pension was reve rsed, since the Boa rd’s conclusion that the onduty acc ident was not a co n t ri buting cause of petitioner’s undisputed disability was a g ainst the manifest we ight of the evidenc e.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-C H-06026; the Hon. Nanc y

J . Arnold, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Richard J

. Reimer and J eff rey A. Goodloe, both of Richard J

. Reimer & Associates L L C, of Hinsdale, for appellant.

Thomas W

. Duda, of L aw Offic es of Thomas W. Duda, of Arling ton Heig hts, for appe llee.

Panel J USTI CE FI TZ GERAL D SMI TH delivere d the j u d gment of the court, with opinion.
J ustices Pucinski and Sterba c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 The pe titioner-appe llee, Micha el D. Rose, was a patrol office r i n the Vil lag e of Mount Prospect P olice Department. On Fe bruar y 2 1
, 2 0 0 4, while on patrol and driving his squad

car , the petit ioner was injured i n an au t o m obile acc ident. The petiti oner was s ubsequently involved in a sepa

rate and undisputably

off- duty automobile acc ident, on J une 1, 2004. 1 ¶ 2 As a result of his Fe bruar y 21, 2004, acc ident, the petitioner filed an application with the board of trustee s of the Mount Prospect Police Pension Fund (her einaf ter Pension Boa

rd)
reque sting a “line-of

-duty” pension pursuant to section 3-114.1 of the I llinois Pension Code (her einaf ter Pension Code) (40 I L CS 5/3-114.1 (West 2006)) and contending that he suffe red

a perma nent disabling injury (name ly
, hernia ted discs in his lower back)

. In the alternative, the petitioner reque sted a “nonduty” disability pension pursuant to section 3 -1 1 4

. 2 of the Pension Code (40 I L CS 5/3-114.2 (West 2006)). The Boa rd denied the petitioner’s reque st for a “line-of

-duty” disability pension, but grante d his reque st for a “nonduty” disability pension. In doing so, the Pension Boa rd found that the petitioner was not entitled to a “lineof-duty” pension beca

use: (1) the Fe b ru ary 21, 2004, acc ident did not occur while the petitioner was perf

orming an “ac t of duty”; and (2) the Fe bruar y 21, 2004, acc ident was not

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

cause d by the injuries the petitioner sustaine d in the later June 1, 2004, off- duty acc ident. ¶ 3 The petitioner soug ht administrative revie w of the Pensio n Bo ar d ’s decision with the circ uit court pursuant to section 3-103 of the Code of C i vil Procedur e (her einaf ter Civil Procedur e Code) (735 I L CS 5/3-103 (West 2006)). The circ uit court g rante d the petitioner’s complaint for administrative revie w, reve rsed the Pension Boa rd’s decision, and enter ed judgme nt in favor of the petitioner, specific ally finding that h e wa s entitled to a “line-of

duty ” pension. The Pension Boa rd now appea ls, asking that we reinstate its orig in al order

T he pet it ion er has fi le d two sep ar at e ci vil la wsui ts agains t the ind ividu al s invol ved in eac h 1

acc ide nt. T hes e l awsu it s a re not re la te d t o t he i ssu es ra is ed i n t his app eal

.
-2-denying petitioner’s reque st for a “line-of -duty” pension. For th e re as o n s that follow, we aff irm the dec ision of the circ uit court.

¶ 4 I . BA CKGROUND ¶ 5 The rec ord, which is fairly cumber some, reve als the fol l o wi n g re l ev an t fa ct s an d
proce dural history

. After the petitioner filed his reque st for a “line-of -duty” pension on April 30, 2007, the Pension Boa rd held two administrative hearings on the petitioner’s application. During those hear ings, the Pension Boa rd sug g ested that the petitioner amend his application and alternatively reque st a “nonduty” disability pension without prejudice to his claim for a “line-of-duty” dis ability pension. The petiti oner compl i ed with this advice and amended his application.

¶ 6 A. The A dministrative H ear ings ¶ 7 After the p et i tioner amende d his application, the Pension Boa rd hear d the petitioner’s testimony and revie wed voluminous evidenc e introduced into th e a d min is tra ti v e rec ord. That evidenc e consisted of over 30 exhibi ts and included, inter alia : (1) various village police and administrative rec ords conce rning the petitioner’s assig nment and movements on Fe bruar y 21, 2004, as well as t he car accide nt in which the petitioner wa s involved on that date; (2) the petitioner’s pleading s and depos i t i o n testimony in the civil lawsuits ag ainst the individuals involved in the Fe bruar y 21, 2004, and J une 1, 2004, car acc idents; (3) medical
repor ts and rec ords from the petitioner’s famil y phy sician, Dr. J ohn Cottrell, who was the first to treat the petit ioner after his Fe bruar y 2004 acc ident; (4) numero u s m ed ical records from institutions wher e the petitioner has been treated since his Fe bruar y 21, 2004, acc ident (including rec ords from Holy Family Hospital, the L u t h er an Gene ral Spine Center, Northwe st Communi ty Hospital, Adu l t Pediatric Orthopedic s, S.C., the Condell Medica l Center, the L oy ola Medica l Center, and the I llinois Bone and J oint Institut e); (5) depositions

o f t h e following treating phy sicians, Dr. Michae l J acke r, Dr. Martin L annoff
, and Dr. J ay L ev i n ; (6) depositions of Dr. Alexander J ohn Ghana y em, and Dr. Thomas Gleason, who

we re asked by the village and the village ’s insurer car rier, respe ctively
, to evaluate the petitioner for purposes of his worke rs’ com pensation benef

its claim; (7) a medical evaluation b y Dr. S amuel C hmell, the petit ioner’s medical ex pert; and (8) three independent m edi ca l evaluations of t he petiti o n er for purposes of hi s disability pension, perf ormed by Dr. Gary Shapiro, Dr. Miledones Eliades, and Dr. Gar y Yar kony
, and order ed by the Pension Boa rd, pursuant to section 3-115 of the Pension Code (40 I L CS 5/3-115 (West 2006)). For purposes of brevity
, we addre ss and summarize only that testim o n y and those exhibi ts which are rele vant to this appeal. We do so in chronolog ical orde r.

¶ 8 1. Evidence Reg arding the Fe bruar

y 2004 Acc ident: The Petitioner’s Te stimony and Releva

nt Village Records ¶ 9 During the administrative hear ings, the petitioner first tes t i fi ed t h at h e was a patr ol office r for the Villag e of Mount Prospect (her einaf ter the Villag e) since J anuar y 2, 2001. The

-3-petitioner denie d havingsuffe red f rom any injuries prior to his e mploy ment by the Villag e and testified that prior to being hired as a patrol office r, he was order ed to underg o a phy sical examination, which he passed w ith no reser vations. ¶ 10 The petitioner next testified about his duties as a patrol office r. The petitioner explained that his duties require d that he “ac tively patrol the Villag e” (either in the squad car or on foot, and sometimes even on a bicycle, as a member of the police bicycle unit) in order to protec t “the proper

ty and person of the citizens of the Villag e.” As part of his daily patrol duties the petitioner had to conduct traff ic stops, respond to calls, interview witnesses and suspects, and

on occa sion a id the corone r and act as an evidenc e technicia n. The petitioner further stated that he was require d to be phy sically prepa red to restra in an offe nder or suspect, at any time, and that this often involved “twisting, bending and lifting o f extreme nature .” The petitioner’s duties wer e var ied and c ould r equire the petitioner to sta nd on his f

eet for long periods of time (such as in monitoring traff ic), or could require him to be seate d (such as in conducting long interviews)

. The petitioner also t es t ified that as part of his job as a patrol office r, he was regularly require d to wea r duty g ear , including police boots, a bulle tp roof vest, a duty belt made of leather
, loaded wea pons, two mag azines with ammunition, handcuf fs, a baton, a flashlig ht, and var ious other equipment. ¶ 11 The petitioner next testified reg arding the events of Fe bruar y 21, 2004. He stated that on that date he was 24 y ear s old and was assig ned to an afte rnoon patrol shift from 3 p.m. to 11
p.m. Acc ording to the petitioner, at about 2:45 p.m., he attended roll call, at which point he

was in g ood health. The petitioner was assig ned to investigate a missing juvenile. He was dispatched to a residential addre ss, wher e he spoke to the mother of the missing juvenile for about 15 to 30 minutes. During the course of this interview, the petitioner rec eived another dispatch from Northwe st Central Dispatch instructing him that the juvenile and a couple of his friends “ma

y be” at a C itgo ga s station located at the cor ner of Rand and Euc lid Roads in Mount Prospect

. Af

t er rec eiving this information, the petitioner proce eded to the g as station, where he arr ived about 15 to 20 minutes later. Once there , the petitioner e x ited his vehicle and spoke to the g as station attendant, who told him that the juvenile had just be en at the station and had left only a couple of minutes ag o, on foot, heading southeast on Rand Road. The petitioner testified that he returne d to his vehicle, intending to drive along Rand Road until he could locate the juvenile, take him into custody and bring him b ac k t o his mother. ¶ 12 Acc ordingto the petitioner, howeve r, as he attempted to exi t the g as station onto Rand Road, by turning left, his squad car was hit by another vehicle, driven by a civilian, Christina Cappozz i. Cappozz i’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 betwee n the windshield and the door. The petitio n er advised Northwe st Central Dispatch of the traff ic acc ident and then exit ed his vehicle to see if Cappozzi was injured. 2

T he off ic ia l tr af fi c cr ash re por t for t he February 21, 2004 acc ide nt cor rob ora te s the 2 pet it ion er ’s versi on of the tr af fi c acc ide nt. T hat cr ash re por t re veals tha t whil e the pe t i t i o n er was dri ving his squ ad car he was hit by a 2002 Chevy Cavali er b e ing dri ven by Chri st ina Capp ozz i.

-4-¶ 13 Wit h respe ct to the Fe bruar y 2004 ac ci d en t , the Pension Boa rd offe red into evidence

seve ra l Vi l l ag e rec ords reg arding the petitioner’s movements on that day
, including, inter alia : (1) the petitioner’s “Mount Prospect Pol i ce Depa rtment Offic er’ s Daily Activity Report” dated Fe bruar

y 21, 2004; and (2) the M ount Prospect poli ce depar tment’s officia l police repor

t detailing the missing juvenil e call, including the dispatch cente r’s logs. The Pension Boa

rd also introduced into evidenc e a copy of t he petiti oner’ s deposition taken in his civil lawsuit aga inst Christ ina Cappozz i. ¶ 14 The petitioner’s deposition details the manner in which the police depar tment trac ks the
movements of police office rs while they are on patrol. In that deposit i o n , the petitioner explained that eac h time a call is assig ned to an office r, a computer- aided dispatch (or CAD) sheet is cre ated. The police office r can make additions to the CAD sheet by using his in-ca r computer and by notifying the police depar tment of his wher eabouts and any actions he takes during the day

. An office r can ask the dispatch cente r to add information that the office r lea rn s o n the scene , or to look into suspects of whom the office r has lear ned and retrie ve information about them for the office r. Acc ording to the petitioner, the office r ultimately has to put codes onto any

dispatch ca ll and end it once the call has be en complete d. ¶ 15 The officia l police investigation repor t for Fe bruar

y 21, 2004, introduced by the Pension Boa rd, i n d icates that the m issing juvenile’s mother entered the police st ation and reported her son missing at 14:32. The petit i oner’ s daily activity log shows that he interviewe d the mother at her home from 16:47 to 17:18. The log further reve als that the petitioner rec eived

a call fr om dispatch reg arding the missing juvenile at 17:19:02. That dispatch repor t informed the petitioner that the juvenile was last seen at a Citgo g as station at the intersec tion of Rand Road a

nd Euclid Road. The da ily log next reve als that the petitioner pr ocee ded to the g as station, as an assisting office r, wher e he conducte d an “investig ation” from 17:20 to 17:28. The petitioner c oded this investigation as “Assist 3182.” ¶ 16 The officia l police repor t reve als that the petitioner’s last transmission with the dispatch
cente r reg arding the call was “NO J UVS HERE” and that the petitioner then coded the call “CL EAR” and “CL OSE” at 17:30:01. The petiti oner’ s next and final en t ry for that day is 3 the motor vehicle acc ident that occur red when he le ft the g as station. ¶ 17 When cross-e x amined by the Pension Boa rd reg arding his disp a

tc h r e c o r d s , the petitioner testified in the following manner

. When asked whether he had “complete d t h e call,” the

Acco rdi ng to the cr ash re por t, tr af fi c was st oppe d in bot h nor thwe st

- boun d la nes on Rand Road

. T he pet it ion er m ade a le ft

- han d tur n out of the gas st at io n ’ s p a r ki n g l ot and acr oss the two nor thwe st

boun d la nes of Rand R o a d i n a n a t t empt to dri ve sou the ast on Rand Road

. At the same ti m e, Capp ozz i dro ve her vehicl e n ort hwes t on the pai nte d m edi an la ne sep ar at ing the nor thwe st and

sou the ast

- boun d la nes of Rand Road and st ruc k the pet it ion er ’s squ ad car on the fr ont dri ver’s si de. Phot ograph s of the sce ne, at ta che d to the cr ash re por t, re veal bumper damag e and a cr acked dri ver’s si de h ead la m

p on th e pe ti ti one r’ s s qua d ca r.

Noth ing in the off

ic ia l pol ic e re por t of the pet it ion er ’s own dai ly log ind ic at es tha t he tol d 3 dis pat ch tha t he spo ke wi th the gas st at ion at te nda nt or tha t h e r ece ived inf ormati on re gardi ng t he j uvenil e’ s po ssi ble wher eab out s.

-5-petitioner stated that he could not reme mber and that another offi cer could have “code d it

out” for him due to the traff ic acc ident. T h e p et i t i oner also admitted that afte r he was rele ased from the emer g enc y ro o m h e returne d home rathe r than to the police station to complete his shift. On cross-examinati o n , the petit ioner further admitted that when he left the g as station, he was not “a ct i v el y pursuing anyone.” He also acknow ledg ed that the

emer g ency lights on his ma rked squad car wer e not a ctivated befor e the acc ident occur red. In his deposition in the civil lawsuit, the petitioner simil arly admitted that as he was exit ing the g as station, the “status of the case at the time did not make it an emer g ency ,” and he did
not “have to use extraordinary eff orts to g et out of the g as station and head southeast bound on Rand Road.”

¶ 18 2. Evidence Reg ardingthe Petitioner’s Tre atment and the Sec ond Off- Duty Acc ident: The Petitioner’s Te stimony and Releva

nt Medical Rec ords ¶ 19 During the administrative hear ings, the petitioner next testified reg arding his injury and prolong ed attempt at treatment. The petitioner admitted that immediately afte r the acc ident, he neither felt pain nor noticed any thing out of the ordinary with his back. Howeve r, about 45 minutes later, in the course of the investigation into the car acc ident, the petitioner beg an noticing an incre asing pain, discomfort an d s t i ffne ss in his neck and lower back. The petitioner immediately contac ted his supervisor, Serg eant L ee, and drove back to the police station, where Serg eant L ee c alled for an ambulanc e. The petitioner wa s transported to the

emer g ency room at Northwe st Communi ty Hospital, wher e he was examined a nd X-ra y ed. Medica l rec ords introduced by the Pension Boa rd reve al that the X-ra

y s taken at Northwe st Communi ty Hospital wer e “all completely normal,” did not reve al any “evide nce of fra cture

or dislocation” or any “sig nificant b ony injuries in the cer vical or the lumbar spine” but, rathe r, showed that “[t] he verte bral bodies, their append a g es and interspac es appea r normal.” ¶ 20 The petitioner stated that afte r leaving the emer g ency room, o n Fe b ru ar y 2 3, 2004, he followed up with his family phy sician, Dr. J ohn Co t t re l l

. Dr. Cottrell presc ribed pain medi cation and muscle relaxants and ordered the petitioner t o underg o phy sical t hera py at Holy Family Hospital and not re tu rn t o work until Marc h 9, 2004. On Marc h 9, 2004, the petitioner was examined by Dr. David Spencer from the Luthera n Gene ral Spine Center. Medica l r ecor ds from the L uthera n Gene ral Spine Center introduced by the Pension B oard

reve al that on Marc h 9, 2004, afte r ex am i n i n g the petitioner, Dr. Spencer wrote to Dr. Cottrell that “[the petitioner] is making a g ood rec overy from a simple lumbar and cer vical strain and I

anticipate no ne ed for any further diag nostic studies or specific treatment.” Dr. Spencer ’s dictation notes simil arly state that the petitioner is rec overing from “a simple back sprain” and note Dr. Spenc er’ s rec ommendation that the petitioner be g iven a nonsteroidal anti-inflammatory

medication and that he re turn to full duty on Marc h 19, 2004. ¶ 21 The petitioner next testified befor e the Boa rd that he returne d to work on Marc h 9, 2004, but that on rec ommendation from his phy sicians, he was assig ned to “lig ht duty capa city” 4

T he pet it ion er exp la ine d tha t “l ight dut y cap aci ty” inc lud ed working at the f r o n t des k 4

ans wer ing te le phon e cal ls
, han dli ng wal k- ins
, ta king re por ts , as wel l as con duc ti ng int er views wit h

-6-throug h April 4, 2004. The pe titioner stated that he be g an phy sical thera py at Holy Family Medica l Center on Marc h 24, 2004. On cross-examination, the petit ioner admitt ed that on Marc h 30, 2004, he told his phy sician that the pain was no longe r constant, and that on April 9, 2004, he said that “if 100 perc ent is perf ect, I would say I ’m at 90 perc ent.” The petitioner explained, howeve r, that these wer e daily repor ts to his phy sicians and that the pain he was experiencing varie d from day to day depending upon his activities, so that althoug h it would seem to subside one da

y , but then return “ in full force ” the ne x t. ¶ 22 T h e p et i t i o n er t es t i fi ed t h at on April 5, 2004, he returne d to fu l l du t y p at ro l responsibilities at work. He explained, howeve r, that he asked Dr. Cottrell to permit him to return to his full duty patrol responsibi l i t i es , beca use he was rec eiving pressure from his supervisors to re turn to “the stre ets,” a nd to “ just take some pain medication and dea l with it.” The petitioner aver

red that afte r he returne d to “full duty ” h e co n t i nued to experience pain (including burning
, stabbing and dull pain in his lower back, waistband, left buttock and
upper thigh)

. The pet i tioner returne d to Dr. Cottrell on May 21, 2004. On that day
, Dr. Cottrell restar

ted the petitioner on pain medication and order ed X-ra y s of his lower back. Dr. Cottrell also refe rre d the petitioner to an or thopedic surg eon, Dr . Michae l J acke r. ¶ 23 The petitioner testified that shortly there afte r, upon advice from Dr. Cottrell, he made a n appointment to see Dr. J acke r. Howeve r, b ef o re he could keep this appointment, the petitioner was involved in a second, off- duty car acc ident on J une 1, 2004. T h e p et i t i oner

was ag ain taken t o the emer g ency room, this time at Holy Family Hospital, wher e X-ra y s

wer e taken. The eme rge n cy room rec ords from Holy Family Hospital, introduced by the Pension Boa

rd, reve al that the petitioner stated that he was trave ling about 40 miles per hour when he was struck on the passeng er side by a vehicle trave ling approximately 10 to 15 miles
per hour. The emer g ency room rec ords fu rt h er noted that the petitioner had injuries to his “lower back a nd buttock.” 5 ¶ 24 On cross-e x amination, the petitioner admitted that h e d i d n o t repor t the J une 1, 2004,

acc ident to any of his treating phy sicians or to the Villa ge o f M o u nt Prospect police depar tment. The Villag e rec ords introduced by the Pension Boa rd reve al that the Villag e did
not become awa

re of this acc ident until May 2007 (three year s afte r the incident), when the Villag e’s new worke rs’ compensation car rier ran a routine insurance sear ch of the petitioner’s name. ¶ 25 T h e p et i t i oner next testified that on J une 5, 2004, he went in for the X-ra y s that Dr. Cottrell ha d order ed for him pr ior to his second acc ident. On J une 7, 2004, he also kept his appointment with Dr. J acke r, which had been schedule d prior to the acc ident. Acc ording to the peti tioner, afte r an examination, Dr. J acke r order ed an MRI of the petitioner’s lower back. That MRI
, taken at Condell Medica l Center, on J une 11, 2004, reve aled herniation of

victi m s orsus pec ts br ought i nto th e po li ce st at ion

.

We not e tha t in his dep osi ti on ta ken on Februar y 7, 2007
, for purpos es of his ci vil la wsui t 5

re gardi ng the Februar y 21, 2004
, acc ide nt, the pet it ion er te st if ie d tha t he did not suf

fe r any inj uri es in the J une 1, 2 004, ac ci den t.

-7-the petit ioner’s lower back at the L 3-L 4 level and a bulging disc at t he L 4-L 5 level. Based

on the MRI repor

ts, Dr. J acke r diag nosed the petitioner with a “lef t lumbar my fasc ial sprain with pe rsistent sy

mptoms,” a

nd he order ed a se t of epidura l injections f or the petitioner, to be administere d by

his colleague, Dr . Martin L annoff

. 6 ¶ 26 Medica l rec ords from Dr. J acke r and Dr. L annoff establish the following treatment of the petitioner. Dr. L annoff administered the first epidura l ste roid injection on J uly 1, 2004. On J uly 20, 2004, the petitioner returne d to Dr. L annoff for a second epidura l shot and repor ted
to him that he was “50% improved.” At that time, Dr. L annoff rele ased the petitioner to full and unrestric ted police duties. On August 23, 2004, Dr. J acke r ree x amined the petitioner and attributed the petitioner’s continued, but diminis hed, pain to the same disk protrusion at level L 3-L 4. Dr. J acke r continued to allow the petitioner to rema in on full du t y at the police station. On October 18, 2004, Dr. J acke r ag ain examined the petition er and noted that the “only sy mptoms [t he petitioner continued to experience wer e] sorene ss or slight achine ss in his lower back sometimes associate d with wea ring the belt h e wea

rs at work as a police office r. He has no lower extremity sy mptoms.” He noted that the petitioner was doing “ver y well” a nd that his sy

mptoms had become “ very minimal.” ¶ 27 On J anuar

y 24, 2005, the petit ioner returned to Dr. J acke r bec ause the pain in his back and thigh suddenly worsene d. Dr. J acke r order ed further phy sical thera py , presc ribed more anti-inflammatory and pain medication, and order ed ano t h er M RI

. The second MRI
, perf ormed at Condell Medical Cente r on May 11, 2005, reve aled disc protrusions at levels L 3 -L4 an d L 4-L 5. On November 14, 2005, Dr. J acke r order ed an additional epidura l injection, which wa s administered by Dr. L annoff

on November

29, 2005. ¶ 28 The petitioner testified befor e the Boa rd that i n t h e following months the pain in his lower back persisted and beca me worse when he wore his full duty patrol g ear

. The petitioner
returne d to Dr. J acke r on Dec ember 15, 2005. Dr. J acke r restric ted the petitioner to “lig ht duty status” at wor

k and re fer

red him to Dr. Jay

L evin to discuss surg ical options. ¶ 29 The petitioner saw Dr. L evin on J anua ry 4
, 2 0 0 6

. After a phy sical exam, a CT scan, a lumbar my elog ram , an d a “Somatosensory Evoked Postentials” (SSEP) test, Dr. L evin advised the petitioner that there was a “sig nificant nerve conduction delay g oing down from h i s l eft buttock into his left foot.” Dr. L evin also confirme d that there was a hernia tio n at level L 3-L 4 and a bulging disc at level L 4-L 5

. He discussed surg ical options with the petitioner, but he wanted a second opinion and ref err ed the petitioner to another orthopedic
surg eon, Dr . Reg an. Af

ter the petitioner was e x amined by Dr. Reg an, Dr . L evin sche duled the petitioner for

surg ery

. ¶ 30 P ri o r t o t h e p et i t i o n er’ s surg ery , howeve r, the Villag e’s workers ’ co m p en s at i o n administrator order ed the petitioner to undertake a medical evaluation by Dr. Ghana y em. Acc ording to the petitioner, Dr. Ghana y em confirme d the diagnosis from Dr. L evin and Dr. Reg an. ¶ 31 The petiti oner had outpatient surg ery perf ormed a t Northwest Community

Hospital on

I n a le tt er dat ed J une 30, 2004, Dr. J acker at tr ibu te d the p et it ion er ’s con ti nue d sym pto m s 6
to a pr otr udi ng dis c a t L3

- L4 c aus ed b y the motorvehic le ac ci den t o n Fe bru ary 21, 200 4.

-8-April 11, 2006. Although the pain in petitioner’s leg subsided afte r the surg ery , the petitioner

continued to e x perie nce extreme muscle spasms and pain in his lower back. As a result, on April 10, 2006, he was taken off work completely

. Whil e rec overing at home, the petitioner

rec eived his full pay under the Public Employ ee Disability Act (5 I L CS 345/1 et seq

. (West 2006)). That temporary d i s ab i l ity pay was terminated on August 21, 2006, afte r petit ioner

was examined by Dr. Thomas F. Gleason, on behalf of the Villag e’s worke rs’ compensation

car rier. ¶ 32 The petitioner went throug h phy sical thera py with Dr. L evin which did not improve his condition. A third MRI was perf ormed on J une 30, 20 0 6
, b as ed upon which Dr. L evin diag nosed him with “diskog eni mecha nical back pain.” On August 23, 2006, the petitioner
returne d to light duty at work, and he continued with his phy sical thera py through November 2006. As the pain in his back persisted, he returne d to Dr. L annoff and rec eived three more epidura l injections. ¶ 33 Be cause the petitioner’s sy mptoms wer e n o t al l ev i at ed
, on Dec ember 18, 2006, Dr. L annoff rec ommended that he unde rg o a functional capa city evalua tion test (F CE) at L ake For est Hospital. The test, which was completed on Dec ember 1 8
, 2 0 06, reve aled that the petitioner was no longe r able to do full duty police work. The petitioner perma nently left the Villag e police depar

tment on J anuar

y 29, 2007. Since then he has not worke d as a p olice patrol o fficer for the Villag e or any wher e else. The petitioner testified that he is curr ently employ ed as a full-tim e sales acc ount executive for EcoL ab an d h as been with them since Marc h 2008. The pe titioner stated that he still continues to experience pain and burningin his lower back, depending upon the ty pe of activities he is perf orming, s u ch as sitti ng or standing for prolong ed per iods of time. He admitted that he has not sought tr eatment since J anuar y 2007, but explained that his phy sicians have told him that there is no other treatment option, ex cept f

or fusion surg ery

.

¶ 34 3. Trea ting Phy sicians’ De position Testim ony ¶ 35 Du ri ng the administrative hear ings, t h e P en s i o n Bo ar d i n t ro du ce d v o l u m i n o u s depositions of sever al of the petitioner’s treat i n g p h y sicians. For purposes of brevity
, we 7 relate only those portions of the depositions that are rele vant to the iss u es raised in this
appea l.

¶ 36 a. Dr . Michae l J acke r ¶ 37 Dr. Michae l Jacke r was deposed on September 7, 2007, and acknow ledg ed that he wa s the first non-e merg ency

room phy sician to examine the petitioner af ter his second, J une 1, 2004, acc ident, as well as the first phy sician to rec ommend steroi d i n j ec t ions for the petitioner’s back. Dr. J acke r testified that he f irst examined the petitioner on J une 7, 2004.

We not e tha t al l of the se dep osi ti ons wer e ta ken pur sua nt to pet it ion er ’s two per son al inj ury 7

cas es ar is ing fr om the February and J une 2004 acc ide nts and wer e com ple te d befor e the pet it ion er

re que st ed a di sab il it y pensi on f rom the Boar d.

-9-He a dmitted that during the course of hi s diag nosis and treatment of the pe titioner, he wa s

unawa re of the petitioner’s J une 1, 2004 ac cident, eve n though that acc ident occur red only six day s prior to the petitioner’s first appointment with him. Dr. J acke r testified that during that first examination, he was under the impression that the petitioner was “mar kedly improving” from his Fe bruar y 21, 2004, acc ident. Although D r. Jacker acknowle dg ed that it was possible that the J u n e 1
, 2004, acc ident exacer bated the petitioner’s condition, he testified that his curr ent awa rene ss of this acc ident does not aff ect his opinion that the first, Fe bruar y 21, 2004, acc ident orig inally cause d the petitioner’s unde rlying c onditions.

¶ 38 b. Dr. Mar tin L annoff ¶ 39 Dr. Martin L annoff was deposed on Dec ember 19, 2007, and testified that he never fully examined the petitioner beca use his treatment was limit ed to administering two steroid shots
to the petitioner’s back on the ref err al of Dr. J acke r. Dr. L annoff testified that the petitioner suffe red from a deg ener ation of discs prior to either acc ident. He stated that in an August 29, 2006, letter he attributed the petitioner’s lower back pain to the Fe bruar y 21, 2004, acc ident, which he believed exacer bated the petitioner’s pree x isting condition. He acknow led g ed, howeve r, that the pe titioner never informed him of his sec ond, J une 1, 2004, acc ident, and he stated that, now knowing of this second acc ident, and considering the petitioner’s
pree x isting deg ener ative discs, he could not g ive a o p i n i on as to which acc ident, if any , cause d the petitioner’s disability

.

¶ 40 c. Dr . J ay L evin ¶ 41 Dr. J ay L evin was deposed on September 4, 2007, and acknow ledg ed that he per formed the petitioner’s back surg ery on April 11, 2006. Dr. L evin testified that both the Fe bruar y and J une 2004 acc idents contribut ed t o the petitioner’s disability

. Dr. L evin stated that the deg ener ative chang es in the petitioner’s L 3-L 4 disc pree x i s t ed ei ther acc ident. Dr. L evin further testified that althoug h in a letter dated J anuar y 19, 2006, he noted that the petitioner’s disability “without question” was cause d by “the s am e problem that occur red with the incident of Fe bruar

y 21, 2004” and that “[t] he deg ener ative chang es in [petit ioner’s] disk are not the basic rea son for his curr ent complaints but rathe r the injury of Fe bruar y 21, 2004, and the normal history of such a condition,” these statements wer e made without any knowledg e of the petitioner’s J une 1, 2004, acc ident. Once Dr. L evin beca me awa re of the petitioner’s J une 1, 2004, acc ident, he opined that no single acc ident “absolutely cause d” the petitioner’s herniated discs. Wit h knowledg e of the second acc ident, he conclude d that both acc idents

wer e “contributory” to the petitioners’ disability
, stating that the J une 1, 2004, acc ident could h av e an y where from “some” to “some g reater amount of involvement” in the petitioner’s disability and that it would be “unre alistic” to believe that the Fe bruar y 21, 2004, occur

renc e did not play

a role in the petitioner’s disability

. 8

Duri ng his dep osi ti on, Dr. Levin al so st at ed tha t nobo dy “co uld def ini ti vely giv e an opi nio n 8
to a re aso nab le degree of m edi cal and sur gical cer ta int y [a s to whic h acc ide nt abs olu te ly cau sed the dis abi li ty].”

-10-¶ 42 Dr. L evin also test i fi ed that, depending on how the medical rec ords betwee n Fe bruar y and J une 2004 wer e interpre ted, during th i s period, the petitioner could be perc eived as “any wher e from somewhat better, to completely better, or may be better, may

be not better.” L astly
, Dr. L evin testified that the J une 2004 acc ident was “more likely ” the cause of the petitioner’s herniated disc. In coming to this conclusion, he noted that the fac t that the petitioner did not tell any of his phy sicians about the J une 2004 acc ident is “the most critica l situation here .” Howeve r, in coming to this conclusion, Dr. L evin acknow ledg ed that he did not rule out the petitioner’ s first acc ident as a c ontributory cause of his disability

.

¶ 43 4. The B oard’ s Three Independe nt Medical Eva luations ¶ 44 Pursuant to section 3-115 of the Pension Code (40 I L CS 3-115 (West 2006)), the Pension Boa rd appointed three independe nt medical evaluators to deter mine the extent and cause of the petitioner’s disability

. These evalua tions wer e introduced as evidenc e at the petitioner’s pension hear ings. As shall be elabor ated below, all three phy sicians found that the petitioner

was perma

nently disabled and that the disability was at least in part cause d by the Fe bruar y 21, 2004, car

acc ident.

¶ 45 a. Dr . Gar y Shapiro ¶ 46 Dr. Gar

y Shapiro, a spi ne surge on with the I llinois Bone and J oint Institut e, ex am i n ed the petitioner on Octob er 3 0
, 2 0 0 7, and issued a cer tificate finding that the petitioner was perma nently “disabled.” Dr. Shapiro attache d a repor t explaining his finding s. In that repor t, Dr. Shapiro conclude d that “full time disability [was] rea sonable g iven the job require ments [of] a police office r.” After examining the petitioner and revie wing his medical rec ords, Dr. S h ap iro noted that prior to the Fe bruar y 21, 2004, acc ident, the petitioner suffe re d fr o m a pree x isting deg ener ative disc disease at L 3-L 4 “since the lack of hydration would not ha ve

occur re d at t h e t ime of injury ,” but that the disc bulging and impingeme nt on the exis ting

nerve roots” as well as the “disc herniations” wer e sustained at the time of the Fe bruar y 2004

acc ident. Dr. Shapiro furthe r noted that the subsequent, J une 1, 2004, car acc ident “most likely rea g g ravated the deg ener ative disc disease pain from the orig inal acc ident

. ” Dr. Shapiro conclude d that the petitioner’s expl a n a ti o n o f how the injury occur red was consistent with his findings.

¶ 47 b. Dr. Miledones N . Eliades ¶ 48 Dr. Miledones Eliades, a phy sician with the Center for Spine Care in Evanston, eva luated the petitioner on November 5, 2007, and simil arly issued a cer tificate finding the petitioner
perma nently “disabled.” After revie wing all o f t h e petitioner’s medical rec ords and examining the petitioner, Dr. Eliades conclude d that the petitioner’s disability “ar ises from injuries sustained in the motor vehicle acc ident on Fe bruar y 21, 2004.” He further conclude d that the subsequent ve hicle ac cident on June 1, 2004, did not contribute to this disability

.

-11-¶ 49 c. Dr . Gar y M. Yarkony ¶ 50 Dr. Gary M. Yar kony
, a phy sician at the R ehabilitation Medicine Specialists Gr o up in Elg in, examined the petitioner on Novembe r 12, 2007. He, too, issued a cer tificate f inding the petitioner perma

nently “disabled.” Dr. Yar kony opined t h at beca

use the petitioner’s rad i cu lar sy

mptoms beg an following his initial Fe bruar y 21, 2004 acc ident, the injuries sustained in that acc ident wer e the underly ing cause of the petitioner’s disability

. Dr. Yar kony further found that the second J une 1, 2004, acc ident only exacer bated the initial injury

.

¶ 51 5. Phy sicians Evaluating Petitioner for Purposes of Workers’ Compensation Be nefits ¶ 52 During t h e ad m i n i s t ra t i v e h ea ri n gs , the Pension Boa rd also introduced copies of depositions of two independe nt medical evaluators (Dr. Alexander Ghana y em and Dr. Thomas Gleason)
, who examined the petitioner at the reque st of the Villag e for purposes of assessing the viability of the temporar y worke rs’ compensa

tion disability benef

its that the petitioner wa s rec eivingwhile still employ ed by the Villag e.

¶ 53 a. Dr . Alexander J. Ghanayem ¶ 54 Dr. Ghana

y em examined the petitioner on Fe bruar y 9, 2006, and August 2, 2006. In his deposition, taken on January 14, 2008, Dr. Gha

nayem testified that he had no inde pendent

re coll ection of either of these examinations and that he would ref rain from providing an y opinion as to what ca

used the pe titioner’s disability

.

¶ 55 b. Dr. Thomas F . Gleason ¶ 56 Dr. Thomas Gleason, a phy sician with the I llinois Bone and J oint Institut e, was de posed

on J une 17, 2008, and testified that he evaluated the petitioner on behalf of the Villag e’s worke rs’ compensation carri er

. He issued a repor t on Fe bruar

y 28, 2008, wher ein he conclude d that the petitioner’s Fe bruar y 21, 2004 acc ident neither cause d nor contributed to the petitioner’s disability

. Dr. Gleason opined that the petitioner’s injuries from the Fe bruar y 2004 acc ident should have taken about eig ht wee ks t o i m p rove and that “any further complaints and associate d treatment subsequent to J une 1, 2004, would not be related to Fe bruar y 21, 2004, but rathe r t o o t h er fa ct ors which may include the collision of J une 1, 2004, as well as other unidentif i ed incidents there afte r.” Acc ording to Dr. Gleason, the Fe bruar y 2004 acci d en t only temporar ily ag g ravated an underly ing pree x isting condition from which the petitioner fully rec overe d prior to J une 1, 2004. He explained that an identifiable injury is not require d to “deve lop a sy mptomatic low back condition which can

cause pain and disability .” Acc ording ly
, Dr. Gleason conclude d that the Fe bruar y 2004

acc ident did not “at all” contribute to the petitioner’s disability

. On cross-e x amination, Dr. Gleason admitted that in coming to this conclusion, he does not recall revie wing Dr. Cottrell’s May

21, 2004, notes.

-12-¶ 57 c. Dr . Samuel Chmell

¶ 58 To counter the finding s of Dr. Gleason, while seeking temporar y worke rs’ c ompensation disability benef

its, in 2008, the petitioner, repr esente d by an attorney , hired his own medical expert, Dr. Samuel Chmell, to provide an independe nt medical evaluation about his condition. This evaluation was introduced as eviden ce during the petitioner’s pension hear ings. After examining t he petiti oner on J uly 1 2
, 2 0 0 8
, and on the basis of t he medical

rec ords of the petitioner’s treating phy sicians, Dr. Chmell conclude d that the petitioner was still experiencing lower back pain when he was reinjure d in the J une 1, 2004, car acc ident. Dr. Chmell was unable to isolate one acc ident as the cause of the petitioner’s disability but rathe r conc luded that the nee d for pe titioner’s surg ery was a ttributable to both car c rashe s.

¶ 59 6. The Pension B oard’ s Finding s ¶ 60 After revie wing all of the evidenc e prese nted to it at the administrative heari n gs , t he P en sion Boa

rd unanimously voted to deny the petitioner’s reque st for a “line-of -d u t y ” disability pension, and instead awa rded him a “nonduty” disability pension. In doing so, the Pension Boa

rd specific ally found that the petitioner’s disability was not incurre d by or result from the perf

ormance of an “ac t of dut y ,” because : (1) the Fe bruar y 2004 acc ident did not involve an act that inhere ntly require d spec i al ri sks not ordinarily assumed by regular citizens; and (2) the pe titioner’s contention that he was exit ing the g as station in pursuit of the missing juvenile wa s contradic ted by his CAD sheet. The Pension Boar d further found
t h at even if the petitioner was injured in the perf ormanc e of “an act of duty ,” he was not entitled to a “line-of

-duty” p en s i o n b eca

use his disability was not cause d by the Fe bruar y 2004 car acc ident. The Boa rd specific ally found that the petitioner fully rec overe d from his Fe bruar y 2004 injuries prior to the second, off- duty J une 2004 acc ident, which ultimately resulted in his perma

nent inability

to perfor m the duties of a police office r.

¶ 61 B. The Circuit Court Proceeding s ¶ 62 The petitioner appea led th e d ec i s i o n o f t h e P ension Boa rd by filing a complaint for administrative revie w with the circ uit court

. After a hear ing, the circ uit court reve rsed the Pension Boa

rd’s order and g rante d the petitioner’s “li n e- of-duty” disability pension. In a written order explaining its finding s, the circ uit court held that the petitioner was injured while perf

orming an “ac t of duty ” and that his disability was at least in part caused by the i n j u ries he sustained in the Fe bruar y 21, 2004, vehicle cra sh. The Pension Boa rd n o w appea ls.

¶ 63 I I . ANALYSI S ¶ 64 On appea l, the P ension Boa rd m akes two arguments: (1) that the petit ioner’s F ebrua ry 21, 2004, injury was not incurre d in t h e p erformanc e of an “ac t of duty ,” as is require d pursuant to section 3-114.1 of the Pension Code (40 I L CS 5/3-114.1 (West 2006) ) in or der for an applicant to rec eive a “line-of -duty” disability pension; and (2) that, in either event,

even if the injury was incurre d while the petitioner was p er fo rming an “ac t of duty ,” the

-13-Fe bruar y 21, 2004, acc ident did not contribute to the petitioner’s disability but, r ather
, that the d i s ab i l i t y resulted from his subsequent off- duty car acc ident. We will addre ss eac h of these c ontentions in turn. ¶ 65 A. “Ac t of Duty” ¶ 66 We beg in with the Pension Boa rd’s interpre tation of an “ac t of duty .” Be fore addre ssing the merits of this issue, howeve r, we must first addre ss the applicable standard of revie w. I t is well established that in administrative case s, our role is to revie w the d ec i s i on of the administrative ag ency , and not t h e d et ermination of the trial court. Marconi v. Chicago Heights Police Pension Board
, 225 I ll. 2d 497, 531 (2006) ( per curiam ); see also Lindsey v. Board o f Ed ucation
, 354 I ll. App. 3d 971, 978 (2004). Section 3-148 of the P ension Code (40 I L CS 5/3-148 (West 2006)) provides that judicial revie w of the decision of the Boa rd is
go verne d by the Administrative Review L aw (735 I L CS 5/3-101 et seq. (West 2006); see also Marconi
, 2 2 5 I ll. 2d at 532; see also AFM Messe nger Servic e, Inc. v. Departme nt of Employme nt Security
, 198 I ll. 2d 380, 390 (2001); Robbins v. Board of Trustees of the Carbondale Police Pension Fund
, 177 I ll. 2d 533, 537 (1997))

. The Administrative Review L aw provides that our revie w extends to all questions of fac t and law prese nted by the entire

rec ord. 735 I L CS 5/ 3-110 (West 2006); see also Marconi , 225 I ll. 2d at 532. ¶ 67 “The applicable standard of revie w–which deter mines the extent of defe renc e af forde d
to th e ad m i n istrative ag ency ’s decision–depe nds on whether the question prese nted is a question of fact, a question of law, or a mix ed question of law

and fact.” Marconi
, 225 I ll. 2d at 532; see also Kouzoukas v. Retireme nt Board of the Policeme n’s A n n u i t y & B enefit Fund
, 234 I ll. 2d 446, 463 (2009); City of Belvide re v. Illinois State Labor Relations Board
, 181 I ll. 2d 191, 204 (1998) (“[ t ] he standard of revie w applicable to the ag ency ’s decision depends upon whether the question prese nted is one of fac t or law”)

. An adminis trative
ag ency ’s finding s on questions of fac t are deeme d to be prima facie true (735 I L CS 5/3-110 (West 2006)), and a revie wing court will reve rse the Boa rd’s fac tual deter

minations only if it conclude s that they wer e contra ry to the manifest weig ht of the evidenc e. Illinois Fraternal Order of Police Labor Council v. Illinois Local Labor Relations Board
, 319 I ll. App. 3d 729, 736 (2001) (“[T]he decision is ag ainst the manifest weig ht of the ev idence only if the opposite conclusion is clea rly evident.”)

. The Boa

rd’s conclusions of law, howeve r, are not entitled to the same defe renc e, and we revie w them de novo

. Illinois Fra t er n a l Or der of Police Labor Council
, 319 I ll. App. 3d at 736. I f the question prese nted for revie w is one of mix ed law and fac t, then a y et third standard applies, and we revie w the Boa rd’s decision to deter mine if it was clea

rly err oneous. City of Belvide r e , 181 I ll. 2d at 204; see also Kouzoukas
, 234 I ll. 2d at 463-64; see also Illinois Fraternal Order of Police Labor Council
, 319 I ll. App. 3d at 736. Under any s t andar d of revie w, the petitioner to an administrative
p ro ce ed i ng bear s the burden of proof, and relief will be denied if he fails to sustain th at burden. Marconi , 225 I ll. 2d at 532-33. ¶ 68 In the prese nt case , the Pension Boa rd contends that our revie w of whether the petitioner sustained his injuries while perf orming an “ac t of duty ” should be under a clea rly err oneous standard. The petitioner, on the other hand, argues that the applicable standard of revie w is de novo beca

use t he definition of an “ac t of dut y” is a matter of statutory construction and there fore prese nts a purely leg al question, which require s no defe renc e to the administrative

-14-ag ency ’s finding s. We f ind that a s betwee n the two, the cle arly err oneous standar d is more
appropr iate. ¶ 69 Although the petitioner may be cor rec t that the interpre tation of the statutory term “a ct of duty ” require s de novo revie w, th at definition must be applied to and depend upon the sufficie ncy of fac ts prese nted to the Boa rd during the disability hear ing. Filskov v. Board of Trustees of the Northlake Police Pension Fund
, 409 I ll. App. 3d 66, 69, 71 (2011) ( noting that whether

a police of

fice r has suff

ere d an injury

while per formingan “ ‘ act of duty ’ ” is “fa ct specific ” and require s an “examinat i on of the leg al eff ect of a g iven set of fac ts” (interna l quotation marks omitted)). Whil e there appea rs to be some v ar y i n g discussion
among the appellate courts as to which standard of revie w applies when the fac ts in the

rec ord with respe ct to the petitioner’s co n du ct an d capa city in sustaining the injury are undisputed
, wher e, as here
, the rec ord reve als that the administrative ag ency applied

9 disputed fac ts to the definition of an “ac t of duty ,” the standard of revie w i s cl ea rl y

err oneous. See City of

Belvide re , 181 I ll. 2d at 205. Under this standard, an ag ency ’s decision wi l l n o t be upheld only wher e “the revie wing court, on the entire rec ord, is ‘left wi t h t h e definite and firm conviction that a mistake has been committed.’ ” AFM Messe nger Servic e, Inc. , 198 I ll. 2d at 395 (quoting United States v. United States Gypsum Co.
, 333 U.S. 364, 395 (1948))

. ¶ 70 Turning to the merits, we be g in by noting that the I llinois Pension Code (40 I L CS 5/ 1- 101 et seq. (W es t 2006)) provides differ ent pension benef its depending upon the circ umstances of a police office r’s incurre d disability

. An office r who is phy sically disabled “as a result of sickness, acc ident, or injury incurre d in or resulting from the perf ormanc e of

an act of duty ” is entitled to a “line-of -duty” pension equal to 65% of the salary attache d to his or her rank. See 40 I L CS 5/3-114.1 (West 2006). An office r disabled “as a result of any

cause other than the perf ormanc e of an act of duty ,” on the other hand, is en t i t l ed to a disability pension of only 50% of the applicable salary

. See 40 I L CS 5/3-114.2 (West 2006). ¶ 71 I t is well established that an o ff i ce r d o es n o t q u al i fy for a “line-of -duty” disability pension mere l y b ec ause he was inj ured while on duty

. See Merlo
, 383 I ll. App. 3d at 100;

A m aj ori ty of cou rt s have hel d tha t when the fa ct s ar e undi spu te d
, the int erpre ta ti on of the 9
te rm “ac t of dut y” in the Pens ion Code is an is sue of st at uto ry con st ruc ti on to be re viewed de nov o

. See
, e.g ., Sarkis v. Cit

y of Des Pla ine s , 378 I ll . App. 3d 8 33, 8 36 ( 2008 ); W hit e v . Cit y of Aur ora , 323 I ll

. App. 3d 733, 735 (20 01) (whe re the fa ct s ar e undi spu te d, and t h e B o ar d int er pre te d the

m ean ing of “ac t of dut y” con ta ine d in the st at ute , the is s u e w a s o ne pur el y of st at uto ry int erpre ta ti on) ; Fedo rsk i v. Board of Trust ees of the Auro ra Pol ic e Pens ion Fund
, 375 I ll

. App. 3d 371, 373 (20 07) (f

ind ing the dis put e hin ged on the det er m ina ti on of “ac t of dut y” and
, the re for e, de

nov o re view app li ed) ; Alm v. Lin col nsh ir e Pol ic e Pens ion Boar d
, 352 I ll . App. 3d 595, 598 (20 04) ( de nov o re view app li ed wher e the fa ct s wer e undi spu te d and the onl y is sue was the m ean ing of “ac t of dut y”). Se veral ot hercou rt s, on the oth er han d, have fou nd, o n wha t a ppe ar ed t o be und is put ed fa ct s, tha t the is sue of whet her the pol ic e off ic er was per for m ing an “ac t of dut y” pre sen te d a m ixe d
que st ion of

fa ct andla w, andth er ef

ore th e c le ar ly er ron eou s sta nda rd of revie w app li ed. See, e.g ., Jon es v. Boar d of Trus te es of the Pol ic e Pens ion Fund
, 384 I ll

. App. 3d 1064
, 1068 (20 08) ; see al so Me rl o v. Orl and Hil ls Pol ic e Pe nsi on Bo ard , 383 I ll . App. 3d 9 7, 99

- 101 (20 08)

.
-15-see also W hite v. C ity of Auror a , 3 23 I ll. App. 3d 733, 736 (2001); see also Jones
, 384 I ll. App. 3d at 1069 (“[s]om ething more than being ‘on duty ’ is require d to rec eive a line-of- duty pension”); Sarkis
, 378 I ll. App. 3d at 837 (“An offi cer does not perf orm ‘an act of duty ’

mere ly by being on duty at the rele vant time.”). Although article I I I of the Pension Code, which perta ins to police pension funds for cities that have a population of less than 500,000, such as the V illage of Mount Prospect in this case , does not expli citly define the term “ act of duty ,” article V of the Pension Code, perta ining to police pension funds in municipalities with populations over 500,000, does. See 40 I L CS 5/5-113 (West 2006). Our supreme court has specific ally stated that the “ac t of duty ” definition contained in article V of the Pension Code applies to the use of that term in article I I I

. See Robbins v. Board of Trustees of the Carbondale Police Pension Fund
, 177 I ll. 2d 533, 540 (1997) (“[w]e may look to article V of the Pension Code for a definition of l an gu age used in article I I I of the Code”); see also Jones , 384 I ll. App. 3d at 1069; Filskov , 409 I ll. App. 3d at 70 n.1. ¶ 72 Section 5-113 of the Pension Code define s the term “ac t of duty ” as “[a]ny act of police duty inhere ntly involving specia l risk, not ordinarily assumed by a citizen in the ord i n ary walks of life, imposed on a p o l i ceman.” 40 I L CS 5/5-113 (West 2006). In Johnson v. Retireme nt Board of the Po liceme n’s Annuity & Bene fit Fund
, 114 I ll. 2d 518 (1986), our supreme c ourt for the first time interpre ted the definition of an “ac t of duty ,” as de fined by section 5-113 of the Pension Code, and expressly reje cted the notion that the term “spec ial risk” encompa sses only inhere ntly dang erous activities. Johnson
, 114 I ll. 2d at 521; see also Alm , 352 I ll. App. 3d at 599. ¶ 73 In Johnson
, a police office r was at his as s i gn ed post when a citizen from acr oss an intersec tion called to him askingfor a ssistance in a traff ic ac cident. Johnson , 114 I ll. 2d at 520. Whil e crossing the intersec tion, the police office r slipped and injured himself. Johnson
, 114 I ll. 2d at 520. Our supreme court held t hat t he poli ce o ff i ce r’ s actions wer e an “ac t of duty ” as defined by

the Pension Code beca

use whe n he suff

ere d the injury , the offic er w as discharg ing his sw o rn du t i es by responding to a citiz en’s call. Johnson
, 114 I ll. 2d at 520. In coming to this concl u s i o n , o u r supreme court specific ally reje cted the pension board’ s argument that the office r was not entitled to “line-of -duty” benef

its beca use crossing the road did not involve special risks. Johnson , 114 I ll. 2d at 522. As the court noted: “The provisions of [t he Pension Code] confe rring the rig ht to duty -disability benef its do not require that an office r be injured by an act of duty

. Rather, the duty disability is awa rded when an office r is ‘disabled *** as the result of injury incurre d *** in the performance of an act of duty .’ (Emphasis added.) [C itation.] In the plaintiff’s case , the act of duty was the act o f re s p o n d i n g to the call of a citizen for assistance

. In perf ormingthat act, he was injured.
The defe ndant’s interpre tation envisions a police office r involved in a gun battle,

a high- speed car chase
, or some oth er o b v i o usly dang erous situation in order to q u al ify for duty -disability benef its. This is an overly restric tive and unrea listi c interpre tation. I f this court wer e to adopt the defe ndant’s narr ow rea ding *** it could discourag e police office rs from the dedicated and enthusiastic perf ormanc e of their duties ***.” Johnson , 114 I ll. 2d at 522-23.

-16-¶ 74 Fur t h er m o re , i n Jo h nson, our supreme court reiter ated that office rs discharg ing the ir duties to protec t citizens perf orm many tasks, such as driving automobiles, climbing stairs, and even crossing streets, that are simil ar to those involved in civil occupations. Johnson
, 114 I ll. 2d at 521-22. The supreme court then held that in deter mining whether an office r is entitled to a “line-of

-duty” pension, “[t] he crux is the capa city in which the police office r is acting .” Johnson
, 114 I ll. 2d at 522. Acc ording ly
, an office r perf orming duties involving specia l risks will be entitled to “line-of -duty” benef

its even if the immediate cause of injury is an ac t involving only

an ordina ry risk. See Johnson , 114 I ll. 2d at 522. ¶ 75 Since Johnson, in deter mining whether an office r is entitled to a “line-of -duty” pension, the majority of our appellate courts have focuse d on the capa city in wh i ch the office r was acting at the time of his injury

. See, e.g. , Merlo
, 383 I ll. App. 3d at 102; Jones
, 384 I ll. App. 3d at 1072; Alm
, 352 I ll. App. 3d at 602; but see, W hite
, 323 I ll. App. 3d at 736. Acc ording ly
, our courts have found that an office r was injured in the perf ormanc e of an “ac t of duty ” when the office r: (1) was involved in a car acc ident while driving a police transport van on patrol ( Jones
, 384 I ll. App. 3d at 1074); (2) was riding a b i cy cle on patrol ( Alm
, 352 I ll. App. 3d
at 601); (3) fell throug h a porch wh i l e serving a notice to appea r ( W agner v. Board of Trustees of the Police Pension Fund
, 208 I ll. App. 3d 25, 29 (1991)) ; (4) injured his shoulder while raising a railroa d crossing g ate ( Sarkis
, 378 I ll. App. 3d at 841); and (5) responde d to

a civ i l i an call repor

ting juveniles stacking concr ete parking blocks in a parking lot and suffe red an injury when he attempted to remove the hazard by unstacking the concr ete blocks ( Merlo
, 383 I ll. App. 3d at 98). On the other hand, our courts have found that an office r was not injured i n the performanc e of an “act of du t y” where: (1) the officer was i njured when he attempted to sit down in a chair at his de sk to f ill out a police repor

t a nd the chair rolled
out from underne ath him ( Morgan v. Retireme nt Board of the Policeme n’s Annuity & Bene fit F u n d
, 1 7 2 I ll. App. 3d 273, 276-77 (1988)) ; (2) the office r was injured while exit ing his police vehicle to place a parking citation on an illega lly parke d car and the police depar tment also employed civilians to issue parking citat i o n s ( W h i t e , 323 I ll. App. 3d at 736); (3) an evidenc e tec hnician wa s injured when the unmarke d police vehicle in which he wa s riding

as a passeng er was struck while stopped at a red light ( Fedorski
, 375 I ll. App. 3d at 375); and (4) the office r was injured when attempting to e nter the rea r seat of an unmarke d squad car still i n t h e p o l ice station parking lot and admitt edly without having y et resumed his patrol duties ( Filskov , 409 I ll. App. 3d at 72-73). ¶ 76 In the present case , the P ension Boa rd found that the petit ioner was no t p erformingan “ac t of duty ” when he was injured in the Fe bruar y 21, 2004, acc ident beca

use nothing about his investigation of the missing juvenile inhere ntly involved specia l risk s n o t ordinarily assumed by a citizen in ordinary walks of life. The Boa rd initially disbelieved the petitioner’s testimony that at the time of the acc ident, he was continuing his investigation in t o t he missing juvenile and attempting to turn left onto Rand Road to locate the juvenile. The Boa rd noted that the petitioner never told the dispatch cente r about the conver sation he had with the
g as attendant i n wh i ch h e lear ned that the juvenile had just left the g as station and was walking south east on Rand Road. Rather, th e Boa rd poi nted out
, the petit ioner’s dispatch

rec ords to centr al command reve aled that once he went to t h e gas station, the petitioner logg ed in his computer the words “NO J UVS HERE,” and then “cle are d and closed” the call

-17-at 17:30:01, prior to the ac cident.

¶ 77 Under these fac ts, the Boa rd found that at the time of the car acc ident the petitioner was not involved in an investigation but was mere ly “driving his squad car ,” which is an activity that does not involve any specia l r isks. In support of this c ontention, the Boa rd pointed out that in his own testimony the petitioner stated that “ther e was no rea son g iven the nature of this case that [he] had to use extraordinary ef forts to g et out of the g as station in order to pursue the juvenile.” In addition, the petitioner admitted that at the time of the acc ident, he did not have either the li gh t s or the sirens activate d on his squad car

. For the rea sons that follow, we disagree with the finding s of the Pension Boa rd. ¶ 78 Although we have some misgiving s about the Boa rd’s reje ct i o n o f t h e p eti tioner’s testimony reg arding his continued investi g ation of the missing juvenile sole ly on the basis of the petitioner’s dispatch rec ords, we rec og nize that the Boa rd’s fac tual finding s, such as its conclusion that the petitioner was not proce eding with his investiga tion at the time of the

car acc ident, are g iven g reat d ef er ence and are not to be disturbed unless manifestly

err oneous. See Illinois Fraternal Order of Police Labor Council
, 319 I ll. App. 3d at 736. We need not, howeve r, dete rmine whe ther this particula r finding by the Board was ag ainst the manifest weig ht of the evidenc e, beca use we conclude that even if, as the Boa rd found, the petitioner had completed his investiga tion of the missing juvenile, as he was depar ting from the g as station in his squ ad car , he was never theless perf

orming patrol duties, which inhere ntly involve specia l risks not ordinarily assumed by regular citizens in their daily lives. ¶ 79 In that respe ct, we find the decisions of Jones
, 384 I ll. App. 3d at 1071-72, and Alm , 352 I ll. App. 3d at 602, direc tly on point. In Jones
, the police office r was injured when a transport

van he was driving on routine patrol was hit by another vehicle. Jones
, 384 I ll. App. 3d at 1 0 1065-66. As a result of the acc ident, the office r suffe red shoulder and back injuries and later underw ent back surg ery

. Jones
, 384 I ll. App. 3d at 1066. The office r applied for a “line-of

duty ” pension, but the pension board reje cted his application and instead found that he was entitled only to a “nonduty” disability pension. Jones
, 384 I ll. App. 3d at 1066. In doing so, the pension boar d specific ally found that “dr iving a [pol ice] van did not involve a ‘special risk’ ” and therefor e did not constitute t h e perf ormanc e of an “act of duty .” Jones
, 384 I ll. App. 3d at 10 6 6

. T h e circuit court reve rsed the decision of the pension board, and the appellate court a ffirme d. Jones , 384 I ll. App. 3d at 1066-67. ¶ 80 The appellate court expli citly re j ec t ed the board’ s conclusion that the office r was not perf orming an act of duty beca use he only “enc ountere d the g ener al risks attendant to driving

a car and driving the vehicle on routine patrol did not involve a specia l risk.” Jones
, 384 I ll. App. 3d at 1071. Rather, the court in Jones reiter ated that the focus of the analy sis is on the
capa city in which the o fficer is undertaking the activity by which he is injured, and not on the activity itself. Jones
, 384 I ll. App. 3d at 1073. Acc ording ly
, the Jones court found t hat “eve n if drivinga ca

r involves only an ordinary risk [t he police of fice r] was [neverthele ss] acting in a capac ity that involved specia l risk when he was inj ured–r outine p at ro l.” Jones
,

T he Jon es cou rtnot ed t hat it was unc le arfr om th e r eco rd whet herth e tr ans por t van was 1 0 a marked pol ic e vehi cl e. Jon es , 384 I ll . App. 3d a t 1 065.

-18-384 I ll. App. 3d at 1073.

¶ 81 In coming to this conclusion, the court in Jones analy zed the office r’s job descr iption and noted that, among other things, a patrol office r must have his “attention and ener g ies direc ted toward being prepa

red to deal with any eventua lity ,” “possess safe ty -minded driving ability and be conscious of all ty

pes of road conditions either in the course of normal patrol or when responding to an emer g ency call” and “contr ol and regulate vehicular and pedestria n traff ic

as neede d.” (Interna l quotation marks omitted.) Jones
, 384 I ll. App. 3d at 1072-73. The court conclude d that there wer e specia l risks associate d with routine p atrol, namely “being
prepa red to respond to *** citizen reque st s , co n t rol ling and regulating traff ic, and maintaining constant vigilanc e,” which we r e n o t th o s e th at would be encounte red by ordinary citizens, and that there fore the office r was perf orming an “ac t of duty ” when he was injured even though the ac t itself involved mere ly drivinga vehic le. See Jones , 384 I ll. App. 3d at 1073. ¶ 82 Simi larly , in Alm
, the appellate court reje cted the pension board’ s finding that a police

o ff i ce r who injured his knee while on bicycle patrol was not entitled to a “line-of -duty” pension beca

use riding a bicycle did not constitute pref orming an “ac t of duty .” Alm
, 352 I ll. App. 3d at 602. The o ff

i ce r in that case was on bicycle patrol when he noticed signific ant pain in h is rig ht knee. Alm
, 352 I ll. App. 3d at 597. The office r had not fallen or had any other sort of acc ident prior to experiencing the pain. Alm
, 352 I ll. App. 3d at 5 9 7

. After immediately seeking tr e atment, the office r was diag nosed with a tear in the “medial meniscus of his rig ht knee.” Alm
, 352 I ll. App. 3d at 596. The office r soug ht a “line-of -duty pension,” but the pension board denied his reque st an d h el d t h at he had not been injured in the perf ormanc e of a

n “ac t of duty ,” since the “manner in which [ he] was peda ling his bicycle when his knee beg an to hurt did not involve any specia l risk not shared by civilians.” Alm
, 352 I ll. App. 3 d at 5 9 7

. The circuit court affirmed the decision of the pension board. Alm
, 352 I ll. App. 3d at 597. ¶ 83 I n re v er s i n g the board’ s decision, the appellate court in Alm found that “peda ling t h e bicycle” constituted “an act o f du t y , ” beca use while on patrol the office r “fa ced risks not ordinarily encounte red by civilians,” including, “fa lls an d collisions as well as dang erous encounte rs wit h u n savory elements of society .” Alm
, 352 I ll. App. 3d at 601. The court in Alm found it insignifica

nt that the bicycling office r was not responding to a call for assistance or fa cing those specific risks at the exact time he suff ere d the injury

. Alm , 352 I ll. App. 3d at 601-02. Rather, justlike in Jones , the Alm court re iterate d that in Johnson
, our supreme court focused the inquiry on the capacity in which the office r was acting at t he ti me of the phy sical act which cause d his injury , and not on the act itself. Alm
, 352 I ll. App. 3d at 602. The court in Alm found t hat whil e riding hi s bicycle the of fice r wa s actingin a capac ity of patrol office r, a ca p ac i t y that involved specia l risks. Alm
, 352 I ll. App. 3d at 601. In concluding that the bicycle patrol involved specia l risks, the court in Alm
, just like the court in Jones
, focuse d on the office r’s testimony reg arding his daily patrol duties and noted that the officer was required to “ride his bicycle at night over var y i n g t erra i n , looking after his
own per sonal safe ty while also rema ining vigilant in the perf ormanc e of his patr ol duties,” and “ca rry ing a signific ant amount of additional weig ht [namely
, his uniform and wea pons].” Alm , 352 I ll. App. 3d at 601.

-19-¶ 84 In the prese nt case , just as in Jones and Alm
, the rec ord reve als that althoug h at the time

of t he car accide nt the petit ioner performe d the act of driving, he perf ormed that act in the
capa city of a patrol offic er , wh i ch involved “spec ial risks” not ordinarily assumed by ordinary citizens, so as t o be entitl ed to a “line-of-duty” pension. T h e re cord reve ls, and it is uncontrover

ted that on the day of t he accident, the petitioner was a patrol office r for the Villag e of Mount Prospect, wi t h an as s i gned patrol shift from 3 p.m. to 11 p.m. The petitioner testified, and it was undisputed by t h e re co rd
, that his duties as a patrol office r requ i re d that he actively patrol the Villag e (in his squad car , on his bicycle or on foot) in order to “ protec t the proper ty and person of the citizens of the Villag e.” The petitioner was require d to conduct traff

ic stops, respond to calls, interview witnesses and suspects, and on

occa sion to use forc e to restra in offe nders and suspects. In addition, eac h day
, while on patrol duty
, the petitioner was require d to wea r a signific ant amount of heavy equipment, including, inter alia
, police boots, a bulletproof vest, loaded wea pons, ammunition, handcuf fs, a baton and a flashlig ht. Acc ording ly
, rega rd l ess of whether the petitioner was continuing his i nvestig ation into the missing juvenile or whether he had completed his response t o t h i s particula r call, the rec ord reve als that at the time of the acc ident, the petitioner, who was in ful l gea r i nside his marke d squad car , was perf orming his patrol duties, which require d

s p e c ia l skills not ordinarily encounte red by ever yday citizens, namely
, “hav[ing ] his a tt e nti o n and ener g ies direc ted towards being prepa red to deal with any eventua lity .” Johnson
, 114 I ll. 2d at 522. For t h es e re as o n s , we find that he was entitled to a “line-of -duty” pension. See Alm
, 352 I ll. App. 3d at 602 (re lying on our supreme court’s decision in Johnson
, to hold that it was immaterial whether the office r was responding to a call, as long as he was perf orming his routine patrol duties at the time of the injury ; noting that “[w]hether an office r has discretion to perf

orm an act is rele v an t t o d et ermine whether the capa city in which he is acting involves specia l risk and is, there fore
, an act of duty

. Howeve r, the discretion involved i n perf orming specific phy sical activities is not rele vant beca use such discretion does n o t bear upon the capa city in which the office r is acting .”); see also Johnson
, 114 I ll. 2d at 521- 22 (“Police office rs assigned to duties that involve protec tion of the public discharg e those duties by perf

orming acts which are simil ar 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[
, howeve r,] is the
capa city in which the police office r is acting .”); see also Jones
, 3 8 4 I l l

. App. 3d at 1073 (noting that “[w]hi le job title alone is insufficient to establish perf ormanc e of an act of duty ” th e o ff i ce r “w as perf

orming the dut ies of patrol office r at the t ime of t he inj ury , and thos e duties involved specia l risk. As the job descr iption ref lects, [t he office r] had to, like the office r in Johnson , have his ‘attention and ener g ies direc ted towar d beingprepa red to de al with any eventua lity .’ [C itation.] ”); see also Merlo
, 383 I ll. App. 3d at 102 (finding it insignific ant that juveniles, repor ted for stacking concr ete parking blocks in a parking lot, had alre ady left the premises, when the office r arr ived at the scene , and that the village public works depar

tment was desig nated the duty of moving back the parking blocks, in deter mining that office r was perf orming an “ac t of du t y ” when he decide d to voluntarily unstack the pa

rkingblocks). ¶ 85 In order t o ci rcumve nt the hol dings in Jones and Alm
, the Board relies on the dec ision

-20-in W hite
, 323 I ll. App. 3d at 736. In that case , which was decided p ri o r t o b o t h Jones and Alm
, a divided panel of the Second District conclude d that an o ff i ce r on patrol was not entitled to a “line-of duty” disability pension when he slipped while exit ing his v eh i cl e to place a parkin g ci t at i o n o n an illega lly parke d car

. W hite
, 323 I ll. App. 3d at 736. The majority in W hite found that the police office r’s a ction of citinga par king ticke t amounted
t o a cl er i cal action, which can be perf ormed by regular citizens in ordinary life, and that there fore the patrol office r was not perf orming an “ac t of duty ” when he was injured. W hite
, 1 1 323 I ll. App. 3d at 736. ¶ 86 Since the decision i n W h i t e , h o we v er , m o re than one appellate court has explicitl y reje cted the holding of the W hite majority
, finding that the majority improperly focuse d on the act perf

ormed rathe r than the capa city in which the office r was acting at the time of the injury , in direct c ontrave ntion of our supreme court’s e x plicit inst ructions in Johnson , 114 I ll. 2d at 522, that “[t] he crux is the capa city in which the police office r is acting .” See, e.g. , Alm
, 352 I ll. App. 3 d at 6 0 2 (“w e believe that the majority in W hite focuse d on the act perf ormed instead of the capa city in which the office r was acting

. The court in W hite focuse d

on the manner in which the office r acte d in stopping and exit ing his vehicle and the discretion invol ved in perf orming these acts. Howeve r, we believe that und er Jo h nson the
proper focus should have been the capa city in which the office r was acting
, namely
, issuing

a parking citation.”); Jones
, 384 I ll. App. 3d at 1072 (“We *** reje ct the rea soning of W hite

. As stated by the supreme court in Johnson
, the ‘cr ux is the capa city in which the office r was acting .’ [C itation.] In W

hite
, the court improperly focuse d on t h e specific act–e x iting a

ca r–and not the capacity in which the office r was acting .”); Merlo
, 383 I ll. App. 3d at 102 (re jecting the holding of W

h i t e an d noting that the capa city in which the police office r is acting must be examined to deter mine whether the police office r’s injury occur red while he perf ormed an “ac t of duty ”). We ag ree with the rationale of Alm
, Jones
, and Merlo
, and too reje ct the holding in W

hite

. Acc ording ly
, for the afor ementioned rea sons, we conclude that
at the time of the car acc ident
, t he petitioner was acting in the capa city of a patrol office r, which require d him to undertake specia l risks not fac ed by ordinary citizens, and that he was there fore entitled to a full “line-of -duty” disability

pension. ¶ 87 In so deciding
, we have considered t h e ca s es o f F edorski
, 375 I ll. App. 3d at 372, Morgan
, 172 I ll. App. 3d at 276-77, and Filskov
, 409 I ll. App. 3d at 72, cited t o b y t h e Pension Boa

rd and find them fac tually distinguishable. Neither Fedorski nor Morgan

It ap p ear s tha t in coming to thi s con cl usi on the m aj ori ty in W hit e not ed as re le va n t , 11 al tho ugh not dis pos it ive, tha t whil e the pol ic e dep ar tment re qui re d it s of f i c e r s to is sue par king ti ckets
, it al so employed ci vili ans to is sue suc h ti ckets
, so tha t the cl er ic al nature of the act was m ore app ar ent

. W

hit e , 323 I ll

. App. 3d a t 736. T his re aso nin g, ho wever, has bee n exp li ci tl y r ej ect ed by the sub seq u e n t d e c i s i on in Me rl o , wher e the cou rt fou nd tha t a pat rol off ic er ’s act in uns ta cking
par king blo cks st acked by j uvenil e del inquen ts invol ved spe ci al ri sks even tho ugh the vill age publ ic works dep ar tment employed ci vili ans to uns ta ck or re m ove suc h par king blo cks. See Me rl o , 383 I ll

. App. 3d at 102-03 (“ T he pet it ion er ’s dut y to pro te ct t h e p ubli c was not el iminat ed bec aus e the vill age publ ic works dep ar tment had a dut y t o r e mo ve t h e st acked par king blo cks at some la te r ti m e.” ).

-21-involved office rs perf orming patrol duties at the time of their injuries. In Fedors ki
, an evidenc e technicia

n, whose duties that day involved taking photogr aphs of suspects in ja il,

was injured afte r an unmarke d vehicle that he was driving was struck from behind. Fedorski
, 375 I ll. App. 3d at 375. Simi larly
, in Mo r g a n , t h e office r was injured, not while on police patrol, but rathe r whil e fill ing out pa perw ork inside the poli ce station, when he missed his chair and fe ll on the floor. Morgan , 172 I ll. App. 3d at 276-77. ¶ 88 Simi larly
, in Filskov
, a patrol office r, who admitted that he had not y et resumed his patrol duties, was injured as he attempted to ent er t h e backse at of an unmarke d squad car in the police station parking lot. Filskov
, 409 I ll. App. 3d at 72. The officer wa s i n jured when another office r in the driver’ s seat acc identally put the car into g ear and ran over the office r’s foot. Filskov
, 409 I ll. App. 3d at 72. In finding that the office r was n o t injured while perf orming an “ac t of duty ,” the court found rele vant that the office r had not yet resumed his patrol duties. Filskov
, 409 I ll. App. 3d at 72. As discussed in detail above, unlike in Filskov
, here the rec ord establishes that the petitioner was perf orming his regular patrol duties when his marked squa d car

was hit by

another vehicle. ¶ 89 For all of the afor ementioned rea sons, we find the Boa rd’s conclusion that the petitioner

was not pe rfor

ming an “ac t of duty ” when he incurre d the acc ident to be clea rly err oneous. See Alm , 352 I ll. App. 3d at 602; Johnson , 114 I ll. 2d at 521-22; Jones , 384 I ll. App. 3d at 1073; Merlo , 383 I ll. App. 3d at 102.

¶ 90 B. The Cause of the Petitioner’s Disability ¶ 91 The Pension Boa rd n ex t ar gu es t h at its decision to deny the “line-of -duty” disability pension should never

theless be upheld beca

use the petitioner’s disability did not result from his on-duty Fe bruar

y 2004 car acc ident but, rathe r, solely from his subsequent off- duty J une 2004 vehicle c ollisi on. ¶ 92 In order to deter mine whether the Pension Boa rd was corr ect, we must look to the re cord
to deter mine the cause of the pensioner’s di sability

. I t i s well established that “a disabilit y may result from multipl e cause s,” and that in order to obtain a full line-of- duty pension, “[a] claimant need not prove that a duty -re lated acc ident is the sole cause , or even the primary
cause, of his disability .” Luchesi v. Retireme nt Board of the Firemen’ s Annuity & Bene

f i t Fund
, 333 I ll. App. 3d 543, 550 (2002) (citing Barber v. Board of Trustees of the Village of South Barrington Police Pension Fund
, 256 I ll. App. 3d 814, 818 (1993)) ; see also W ade v. City of North Chicago Police Pension Board
, 226 I ll. 2d 485, 505 (2007). Rather, a claimant
must only prove that th e du t y -re lated acc ident “is a causative fac tor contributing to the claimant’s disability

. “ Luchesi
, 333 I ll. App. 3d at 550 (citing Hart Carter Co. v. Industrial Comm’n
, 89 I ll. 2d 487, 494 (1982)) ; see also W ade
, 226 I ll. 2d at 505 (“a disability pension
may be based upon the l i n e-of -duty ag g ravation of a pree x isting phy sical conditi on” si nce “ ‘[t] here is no require ment that the duty - related incident be the orig inating or primary cause of the injury
, althoug h a sufficie nt nexus betwee n the injury and the perf ormanc e of the duty
must e x ist’ ” (quoting Barber
, 256 I ll. App. 3d at 818)); W ilfert v

. Retireme nt B oard of the Firemen’ s Annuity & Bene

fit Fund
, 263 I ll. App. 3d 539, 543 (1994) (“pla intiff need not prove that an injury rec eived on duty was the sole cause of his disability ; the injury need only

-22-have contributed to the disability ”); Alm
, 352 I ll. App. 3d at 598 (“The perf ormanc e of an act of duty need not be the sole cause of the disability
, beca use *** ‘sec tion 3-114.1 does not bar the awa rd of a line-of- duty disability pension based upon the ag g ravation of a pree x isting phy sical condition.’ ” (quoting Olson v. City of W heaton Police Pension Board
, 153 I ll. App. 3d 595, 598 (1987)) ). ¶ 93 Be fo re deciding the merits of this issue, we first addre ss the standard of review

. T h e Boa rd contends that fac tual finding s of an administrative ag ency are primafacie true and are to b e r e viewed under the defe rential manifest weight of the evidenc e standard. The petitioner,

on the other hand, contends that the standard of revie w should be clea rly err oneous beca

use the question o f leg al causation require s an interpre tation of the Pension Code and the application of the appropr iate fa cts to that interpre tation. ¶ 94 Contrary to the petit ioner’s positi on, there is no leg al di sput e here
, as the parties ag ree that the petitioner is pe rmane ntly disabled and can no longe r perf orm the duties of a police office r. In addition, the re is no dispute as to the definition of causation, a s the parties agree that the petitioner need not “prove that a duty -re lated acc ident is the sole cause , or even the primary cause , of his disability ,” but mere ly that he must show that the duty -re lated acc ident

was “a causative fac tor contributing ” to that disability

. Luchesi
, 333 I ll. App. 3d at 550; see also W ade
, 226 I ll. 2d at 505. There fore
, the only question that is prese nted here is whether the first, on-duty Fe bruar

y 2004 acc ident contributed to the petitioner’s disability
, or whether the petitioner fully rec overe d from the injuries sustained in that car acc ident, so that the

s ec o n d
, o ff- duty J une 2004 acc ident constituted the sole cause of his disability

. This is a purel y fac tual deter

mination which we revie w under a manifest weig ht of the evidenc e standard. See
, e.g. , W

ade , 226 I ll. 2d at 504-05; see a lso Marconi , 225 I ll. 2d at 534. ¶ 95 Under this standard, an ag ency ’s finding s are g ener ally aff orded great defe renc e and will be found to be ag ainst the manifest weig ht of the evidenc e “only if the opposite conclusion is clea rly evident.” (Interna l quotation marks omitted.) Marconi
, 225 I ll. 2d at 534. The “mer e fac t that an opposite conclusion is rea sonable or that the revie wing court might have ruled differ ently will not justify reve rsal of the administrative finding s.” Abra h a ms o n v. Illinois Department of Professional Regulation , 153 I ll. 2d 76, 88 (1992). ¶ 96 Howeve r, we emphasize that the d ef er en ce ac co rded to the administrative ag ency ’s decision is not without limit ation. See W ade
, 226 I ll. 2d at 507 (“[e]ven under the manifest weig ht standard *** the defe renc e we affo rd t he administrative ag ency ’s decision is not boundless”). “Althoug h it is true th at t he Boa rd’s cre dibilit y deter

minations [are to be] aff orded considera

ble weig ht, they are not immune from revie w.” Kouzoukas
, 234 I ll. 2d at 465; see also Bowlin v. Murphysboro Firefighters Pension Board of Trustees
, 368 I ll. App. 3d 205, 210-12 (2006) (“our revie w canno t amount to a rubber stamp of the proce eding s below mere ly beca

use the Boa

rd hear d witnesses, revie wed rec ords, and made the requisite finding s”). Rather, a revie wing court may put aside any finding s that are clea rly ag ainst the manifest weig ht of the evidenc e. Kouzoukas
, 234 I ll. 2d at 465. See also Bowlin
, 368 I ll. App. 3d at 211-12 (“Eve n when the decision is supported by s o m e ev i d ence , which if undisputed would s u s t ai n the administrative finding
, it is not sufficie nt if upon a consideration of all the evide nce the finding is ag ainst the manife s t we i gh t. [C itation.] A revie wing court will not hesitate to grant relief wher e the rec ord does not show evidentiar y

-23-support for the a g ency ’s deter mination. [ Citation.] ” (Empha sis added.))

. ¶ 97 In the prese nt case , the Pension Boa rd found that the petitioner fully rec overe d from his initial on-duty Fe bruar

y 2004 acc ident befor e he incurr ed injuries in the second, off- duty J une 2004 collision. For the rea sons that follow, we find this conclusion to be ag ainst the manifest we ight of

the evidenc e. ¶ 98 There is nothing in the rec ord, aside from Dr. Gleason’ s opinion, that could support the Pension Boa

rd’s conclusion that the petitioner fully rec overe d from the injuries he sustained during h i s on-duty Fe bruar y 2004 car acc ident, so as to exclude this acc ident as a contributing fac tor of his perma nent disability

. In fac t, eig ht out of nine phy sicians who wer e asked to offe r opinions as to the cause of the petitioner’s disability
, including all three of the Boa rd’s own independe nt medical evaluators, conclude d that the Fe brua ry 2 1, 2004, automobile acc ident at least in par t contributed to the petitioner’ s disability

. ¶ 99 Three of the petitioner’s trea ting phy sicians (Dr. J acke r, Dr. L annoff
, and Dr. L evin) and

one of the Boa

rd’s own medical ev aluators (Dr. Shapiro) specific ally found that prior to either car acc ident the petitioner suffe re d fr om a pree x isting deg ener ative disc disease at levels L 3 and L 4. These phy sicians found that the petitioner’s perma nent disability ( i.e.
, the herniated and bulging discs and t h e n erve impingeme nt) resulted from a traumatic injury
, which exacer

bated the petitioner’s pree x isting condition. None of the rema ining phy sicians who wer e asked to g ive an opinion as to the cause of the p etitioner’s disability neg ated or disag ree d with this conclusion. In fac t, the only disag ree ment among these eig ht phy sicians
appea rs to have revolved around whether (and if so, to what extent) the second acc ident

exacer bated either the injury suffe red by the petitioner during his init ial car

acc ident or the petitioner’s pre exis ting de g ener ative disc c ondition. ¶ 100 The Pension Boa rd never theless found that the petiti o n er ’s o n -d u t y Fe b ru ar y 2004

acc ident did not c ontribute “at all” to the petitioner’s perma nent disability

. In doing so, the Pension Boa

rd seems to have relied upon the opinions of Dr. Gleason and Dr. L evin, as well as the fa ct that petitioner ne ver told any of his trea

ting phy sicians about his J une 2004 off

duty acc ident. Howeve r, the Pension Boa rd’s finding fails to take int o ac co u n t t hat, when informed of the second acc ident, none of the eig ht phy sicians, ex cl u d i n g Dr. Gleason, dismiss ed the f

irst acc ident as a c ontributing fa ctor to the pe titioner’s disability

. ¶ 101 In fac t, four phy sicians conclusively opined that it wa s the first, Fe bruar y 2004 on-duty

acc ident that cause d the petitioner’s perma nent injury
, i.e.
, his herniated discs, while the second, J une 2004 acc ident mere l y exacer bated the petitioner’s sy

mptoms. Dr. J acke r, t he first orthopedic phy sician to treat the petitioner after his family phy sician, specific ally testified that althoug h at the time of his diag nosis he was unawa re of the petitioner’s second

acc ident, afte r being informed of t his acc ident, his opinion t hat t he petiti oner’ s underlying condition was cause d b y t h e fi rst acc ident, which exacer bated the petitioner’s pree x isting condition, did not chang e. Two o f t he Boa rd’s own independe nt medical examiners, Dr. Shap i ro an d Dr

. Yar

kony
, ag ree d with this conclusion. After noting that the petitioner suffe red from a pree x isting deg ener ative disc disease, “since the lack of hydration would not have oc curr ed at the time of injury ,” Dr. Shapiro specific ally found that the F ebrua ry 2004 on-duty acc ident cause d the disc hernia t ing and impingeme nt of the exis ting nerve roots,

-24-while the J une 2 0 0 4 o f f

- d uty a c c id e nt “most likely rea g g ravated the deg ener ative disc disease pain from the orig inal acc ident.” Dr. Yar kony simil arly opined that the petitioner’s disability

was cause d by the first acc ident, while the second one mere ly exacer bated the initial injury

. Dr. Eliades, the Boa

rd’s third independe nt medical evaluator, even went so far as to find that the J une 2004 ac cident played no par t in the petitioner’s per

manent disability

. ¶ 102 The rema ining four phy sicians mere ly ref raine d from deter

mining which acc ident, if any , cause d the petit ioner’s di sability

. Dr. L annoff
, the phy sician responsible for administ ering the petitioner’s epidura ls, specific ally tes t i fi ed that in light of the petitioner’s pree x isting deg ener ative disc disease, he could not state which, if either, acc ident cause d the petitioner’s disability . Simi larly , both Dr. Ghanayem and Dr. Chm ell, who eva luated the pe titioner for
purposes of his worke rs’ compensa tion benef its, ref raine d from offe ring an opinion as to the

cause of the petitioner’s disability

. Dr. Chmell specific ally stated that the disability could be “attributable to both acc idents,” beca use the petitioner was still experiencing lower bac k p ain when he was re injured in J une 2004. ¶ 103 Finally
, althoug h the Pension Boa rd is corr ect that Dr. L evin, the orthopedic surg eon who perf ormed the petitioner’s back surg ery , testified that afte r being informed of the petitioner’s J une 2004 ac ci d ent, it was his opinion that the J une 2004 acc ident was “more likely” the

cause of the petitioner’s disability
, he also stated that he could not rule out the first acc ident

as a contributory cause of that disability

. Dr. L ev i n specific ally testified that it would be “unre alistic” to believe that t h e first Fe bruar y 21, 2004, acc ident did not play a role in the petitioner’s herniated discs and that both acci d en t s wer e “contr ibutory ” to the petitioner’s disability

. In addition, when asked to state whether he believed that t h e petitioner fully

rec overe d from the Fe bruar y 2004 acc ident prior to his second J une 2004 vehicle collision, Dr. L evin could not g ive a conclusive o p i n i o n ei ther way

. Rather, Dr. L evin onl y testified that depending upon how the medical rec ords between Fe b ruary and J une 2004 wer e interpre ted, the petitioner could be perc eived as “any wher e from somewhat better, to completely

better, or may be better , may

be not better .” ¶ 104 De s p i te the opinion of these eig ht phy sicians, six of whom phy sicall y ex am i n ed t h e petitioner (Dr. L evi n , Dr

. J acke r, Dr. Shapiro, Dr. Eliades, Dr. Yarkony
, and Dr. Chmell), the Pension Boa rd n ev ertheless conclude d that the petitioner fully rec overe d prior to his second, J une 2004 acc ident. In coming to this conclusion, the Pension Boa rd relied upon the sole opinion of Dr. Gleason, a phy sician appointed by the Villag e’s worke rs’ compensation

c a r r ie r to evaluate the petitioner for purposes of worke rs’ compensation benef its. D r

. G le a s o n

was the only phy sician who conclude d that the petitioner’s disability was exclusively cause d by the latter automobile acc ident. Dr. Gleason specific ally found that the petitioner’s injuries from the F ebrua

ry 2004 acc ident should have take n about eig ht weeks to improve a nd that “any further complaints and associate d treatment subsequent to J une 1, 2004, would not be related to the Fe bruar

y 21, 2004, [accident], but rather to other fac tors, which may include the collision of J une 1, 2004.” Dr. Gleason opined that the Fe b ru ar y 2004 acc ident only temporar ily ag g ravated the petitioner’s underly ing pree x isting condition, from which the petitioner fully rec overe d prior to June 2004. He further testified that an identifiable injury is not require d “deve lop a sy mptomatic low back condition which can cause pain and disability .”

-25-¶ 105 Dr. Gleason’ s opinion, however, unlike the opinions of the eig ht other phy sicians, was

not based upon a phy sical exam of the peti t i o n er, but rathe r mere ly upon a revie w of the petitioner’s medical rec ords. Moreove r, Dr. Gleason’ s o p i nion as to the petitioner’s full

rec overy from sy

mptoms associate d with his initial Fe bruar y 2 004 acc ident was direc tly
contra dicted by the notes of the petitioner’s family phy sician, Dr. Cottrell. When questioned

a b o ut th e in c o n s is te n c es betwee n his opinion and Dr. Gleason’ s medical rec ords, Dr. Gleason admitted on cross-e x amination that he did not revie w Dr. Cottrell’s May 21, 2004, notes. Dr. Cottrell’s notes reve al that subsequent to th e p et i tioner’s first, on-duty Fe bruar y 2004

acc ident, despite treatment attempts with phy si cal thera py and medication, the petitioner continued to experience pain, which fluctuate d on a daily basis. Although some of the

rec ords from Dr. Cottrell indicate that petitioner was improving and was permitted to return to work off and on, nothing in the rec ord indicates that his pain completely subsided or that his injury was completely cure d prior to the moment when he suffe red the second injury

. In fac t, Dr. Cottrell’s notes for May 2 1, 2004, indicate that during his examination, the petitioner repor

ted persisten t b ac k p ain of “3/10” and occa sionally “6/10,” causing Dr. Cottrell to restar

t the petitioner on an anti-inflamma t o ry an d muscle relax ant. Dr. Cottrell also order ed an X-ra

y of the petitioner’s lumbar spine and reque sted that petitioner return for

a follow-up evaluation two wee ks later, a date that turned out to be afte r the second, off- duty

acc ident. In addition, Dr

. Cottrell’s notes reve al that prior to the second acc ident, he

rec ommended that petitioner make an appointment with Dr. J acke r. The petitioner testified that he made the appointment with D r. J acke r prior to his J une 1, 2004, acc ident, and there is nothing in the re cord which contra dicts that statement. ¶ 106 Un d er t h e af o re m en t i o n ed fac ts, we find the Pension Boa rd’s conclusion th at t h e petitioner fully rec overe d from his Fe bruar y 2004 acc ident, so that the injuries he sustained in that acc ident play ed no part wha t s o ev er i n h is ultimate disability
, to be contra ry to the manifest weig ht of the evidenc e. See Kouzoukas
, 234 I ll. 2d at 464; W ade
, 226 I ll. 2d at 507;

see also Bowlin
, 368 I ll. App. 3d at 211-12 (“Eve n when the decision is supported by some evidenc e, which if u n disputed would sustain the admini strative finding, i t is not sufficie nt if upon a consideration of all the evide nce the fi n d i n g i s ag ainst the manifest weig ht. [C itation.] A revie wing court will not hesitate to g rant relief wher e the rec ord does not show evidentiar y support for the a g ency ’s deter mination. [ Citation.] ” (Empha sis added.))

.

¶ 107 I I I . CONCLUSI ON ¶ 108 For all of the afor ementioned rea sons, we find that the petitioner is entitled to a full “lineof-duty” disability pension. We, there fore
, aff irm the circ uit court’s reve rsal of the Pension Boa rd’s de cision.

¶ 109 Affir

med.

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