No. 2--01--0544

	IN THE 

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT		

ROBIN TRETTENERO,			)	Appeal from the Circuit Court 

						)	of Kane County.

	Plaintiff-Appellant,	)

						)	

v.						)	No. MR--K--00--226 00--MRK--–--226	 	 						)	

THE POLICE PENSION FUND OF THE	)	

CITY OF AURORA, THE BOARD	)

OF TRUSTEES OF THE POLICE	)

PENSION FUND OF THE CITY	OF	)

AURORA and its Trustees,	KEVIN	)

BAXTER, EDWARD	BEALE, DANIEL	)

HOFFMAN, JOHN 	DUGGAN, and 	)

WILLIAM WEIGEL, and LARRY	)

LANGSTON, Chief of Police of	)

the City of Aurora,			)	Honorable 

						)	Michael J. Colwell,

	Defendants-Appellees.	)	Judge, Presiding.

	JUSTICE CALLUM delivered the opinion of the court:	

	Plaintiff, Robin Trettenero, appeals from the trial court's

order affirming the decision of the Board of Trustees of the Police

Pension Fund of the City of Aurora, Illinois (the Board),

terminating her not-on-duty disability pension (40 ILCS 5/3--114.2

(West 2000)).  Plaintiff contends that the Board's termination of

her disability pension (1) denied her due process and equal

protection of the laws (Ill. Const. 1970, art. I, §2); and (2) was

contrary to the manifest weight of the evidence.  We affirm.

	Plaintiff was hired as a police officer in Aurora in 1985.  In

1991, she applied for a disability pension, requesting a line-of-

duty disability pension (40 ILCS 5/3--114.1 (West 2000)), or, alternatively, a nonduty pension (40 ILCS 5/3--114.2 (West 2000)). 

Plaintiff alleged that she suffered from a mental disability

resulting from stress.  She argued that the stress resulted from

witnessing acts of police brutality; being joined as a defendant in

a suit alleging brutality; being the target of unfavorable press

attention; and difficulties in her relationship with her coworkers

and supervisors.  

	In 1993, the Board denied plaintiff's request for a line-of- duty pension but granted plaintiff a nonduty disability pension.  The circuit court affirmed the Board's order denying the line-of-

duty pension, and this court subsequently affirmed the denial. 

Trettenero v. Police Pension Fund, 268 Ill. App. 3d 58, 69 (1994).

	In accordance with the provisions of the Illinois Pension Code

(Pension Code) (40 ILCS 5/1--101 et seq. (West 2000)), plaintiff subsequently submitted to annual medical exams certifying her

continued disability.  40 ILCS 5/3--115 (West 2000).  

	At the request of the Board, Dr. Richard P. Harris, a board-

certified, licensed physician with a specialty in psychiatry,

examined plaintiff on four occasions: August 4, 1997; August 13,

1997; July 9, 1998; and July 13, 1999.  He spent a total of 41⁄2

hours with plaintiff and reviewed her prior annual medical evaluations; the treatment notes of Dr. Roger P. Hatcher, her

medical provider; and the Board's decision granting the nonduty

disability pension.

	Dr. Harris testified as follows.  Plaintiff is no longer

disabled.  Plaintiff had suffered from depression and anxiety when

she stopped working at the police department.  However, by the 1998 examination, she showed no signs of illness, and she appeared to

have been treated successfully.  Specifically, there was no

evidence of a psychiatric impairment.  Plaintiff does not currently

have post-traumatic stress disorder.  She no longer suffers from a

mental disability that would prevent her from returning to service

with the Aurora police department.  However, plaintiff has no

interest in returning to the Aurora police department. 

	In his July 31, 1998, written evaluation, Dr. Harris stated

that plaintiff "is not suffering from any psychiatric illness and

has regained much of her energy and enthusiasm.  She expresses

herself in an assertive manner and did not manifest the anxiety

seen in so many [previous] evaluations."  With respect to returning

to work, he wrote that plaintiff "has no desire to work as a police

officer. This does not mean that she is disabled.  She certainly

does not have any active psychiatric disorder.  She has a strong

distrust of the department."  Dr. Harris stated that plaintiff

"would not do well if she returned to police work," not because she

had a "clear psychological impairment," but because of her lack of

interest in the work.  

	In his July 29, 1999, written evaluation, Dr. Harris stated as

follows.  Plaintiff is not currently in psychotherapy, and she

wakes up crying every two weeks.  Her condition has not appreciably

changed since the last evaluation.  There is no evidence of acute

anxiety or depression when plaintiff talks about her experiences,

though one would expect such a reaction when discussing such a

history.  

	In addition to the testimony and evaluations of Dr. Harris,

the Board reviewed the testimony of Dr. Clifton Rhead, a physician

with a specialty in psychiatry, and the testimony of Dr. Roger P.

Hatcher, a licensed clinical psychologist who had treated plaintiff

for approximately 81⁄2 years.

	Dr. Rhead examined plaintiff on January 15, 1999; January 20,

1999; and July 13, 1999.  He testified as follows.  Plaintiff had

posttraumatic stress disorder, which caused her to go on

disability.  She no longer has posttraumatic stress disorder.  However, she should be continued on disability because she

continues to be mentally disabled for work with the police

department.  Plaintiff is a high risk due to sufficient deficits in

her personality. The condition is "in remission, with minimal residual phobic anxiety."  Plaintiff has a continuation of "some

anxiety symptoms."  Her phobic reactions to police, "minimal though

they may be, they don't cause her a great deal of handicap but I

believe that they are residual."  She has a mild phobia in that,

for example, she drives around the block to avoid being seen by a

police officer.  Moreover, she is highly vulnerable to a repeat.  oOof

the posttraumatic stress syndromedisorder .  If plaintiff returned to the

police department, she would have a very "distant and distrustful

relationship" with her coworkers, and  the risk of similar behavior a recurrence of

the disorder  would be very high.  She could probably return to the Oswego police department, her employer prior to the Aurora police department.  

	Dr. Rhead also testified that there is no medical basis to

conclude that his opinion is any more medically correct than that

of Dr. Harris.

	In his February 5, 1999, written evaluation, Dr. Rhead stated

as follows.  Plaintiff "has an ill-defined awareness of the

destructive consequences of a return [to the police department],

specifically the likelihood of an exacerbation of her earlier

symptoms in a stressful situation in which she does not feel the

support of the environment, with consequent decompensation of her

personality structure."   

	Dr. Hatcher testified as follows.  Plaintiff was first

diagnosed with posttraumatic stress disorder, depression, and some

psychosomatic problems in 1991.  Plaintiff has posttraumatic stress disorder;, depressive disorder that is in complete remission;,

chronic depression that is almost completely remitted;, and

somatization disorder.  Plaintiff has phobic anxiety about the

police department.  Plaintiff continues to have anxious and fearful feelings about the police department and continues to have

intermittent nightmares and physical symptoms such as

gastrointestinal upsets.  Her depression has significantly

improved, but she continues to be mentally disabled from performing

her duties as a police officer in Aurora.  Plaintiff's feelings

would not be under her volitional control, in that she would be a

danger to herself due to her high anxiety level and her extreme

feelings of estrangement from the system.  Her experiences with the

department "produced a mental disorder that does not allow her to

continue to function as a police officer."  The trauma was not the witnessing of the police brutality, but her perception that she was

abandoned by the "uniformed authority."  

	Plaintiff testified that she does not wish to return to the

Aurora police department because she cannot be "an effectual police

officer."  Moreover, she does not believe that her fellow officers

will be there for her.  Whenever she thinks of the police

department, she experiences nausea and diarrhea, and she wakes up

crying at night.  Plaintiff also stated that she feels that the

disability pension "is compensation for the fact that [she] can no

longer do the job that [she] initially had, and the reason [she]

can no longer do the job is not attributable to [anything] that

[she] did to [her]self but rather what the department did to

[her.]"  She denied that she is punishing the department by

collecting disability benefits.

	Plaintiff attempted to admit into evidence two newspaper articles describing certain lawsuits alleging police misconduct at

the police department and copies of the court complaints referenced

in the articles.  The Board ruled them inadmissible as prejudicial and irrelevant.

	On May 1, 2000, the Board found that plaintiff had "fully

recovered from disability," and it terminated her disability

pension.  See 40 ILCS 5/3--116 (West 2000).  In its order, the

Board stated that it placed great weight on the testimony of Dr.

Harris and that the preponderance of the testimony demonstrated

that plaintiff had fully recovered from any mental disability.  The

Board noted that, although plaintiff testified that she sought

treatment from Dr. Hatcher for her disability, the record reflected that she did not receive any treatment from September 28, 1992,

through May 25, 1995, and from June 12, 1997, through August 20,

1998.  The Board further noted that there were numerous instances

of consultations with Dr. Hatcher that did not relate to

plaintiff's disability.  

	The Board's order also noted the inconsistencies in the

medical testimony.  Dr. Harris testified that plaintiff had fully

recovered; that she suffered from no mental impairment; and that

she did not suffer from posttraumatic stress disorder, with which

she was diagnosed at the time of the Board's 1993 decision.  Dr.

Rhead concurred in Dr. Harris's assessment that plaintiff did not

currently suffer from a mental disability, but he believed that her

previous symptoms may manifest themselves again if she returned to

duty.  Dr. Hatcher's testimony conflicted with that of the other

two medical care providers, in that he believed that plaintiff

suffered from posttraumatic stress disorder.  

	Consistent with Dr. Harris's opinion, the Board found that

plaintiff did not desire to return to employment with the police in

Aurora and that such a desire did not equate to a mental

disability.  The Board also stated that, without waiving its

opinion that the newspaper articles and court complaints were

inadmissible, it examined the evidence and concluded that, if they

were admissible, they would "not otherwise alter or modify" its

decision.

	On May 9, 2000, plaintiff filed a complaint for administrative

review of the Board's decision (735 ILCS 5/3--103 (West 2000)) with the circuit court of Kane County, and the court subsequently

affirmed the Board's decision.

	Plaintiff now appeals to this court, arguing that the Board's

termination of her disability pension (1) denied her due process

and equal protection of the laws because a minimum of three doctors

did not conclude that her disability had terminated and because the

articles and court complaints were not admitted into evidence; and

(2) was against the manifest weight of the evidence.

	We first address plaintiff's constitutional arguments.  The

constitutionality of a statute is a question of law, which we

review de novo.  Schober v. Young, 322 Ill. App. 3d 996, 998 (2001).

	Plaintiff asserts that, because the evaluations of three

doctors were required for her to obtain a disability pension, then

it follows that three doctors should be required to concur that her

disability has terminated.  She contends that the failure of the

Board to read this requirement into the Pension Code denied her due

process and equal protection of the laws.  We disagree.

	Section 3--115 of the Pension Code provides:

		"A disability pension shall not be paid unless there is

filed with the board certificates of the police officer's

disability, subscribed and sworn to by the police officer if

not under legal disability, or by a representative if the

officer is under legal disability, and by the police surgeon

(if there be one) and 3 practicing physicians selected by the

board.  The board may require other evidence of disability. 

Medical examination of a police officer retired for disability shall be made at least once each year prior to attainment of

age 50, as verification of the continuance of disability for

service as a police officer.  No examination shall be required

after age 50."  40 ILCS 5/3--115 (West 2000).

	Section 3--116 states, in relevant part:

	"If a police officer retired for disability, except one who

voluntarily retires after 20 years' service, is found upon medical examination to have recovered from disability, the board shall certify to the chief of police that the member is

no longer disabled and is able to resume the duties of his or

her position."  (Emphasis added.)  40 ILCS 5/3--116 (West 2000). 

	Plaintiff argues that it is unfair to place a higher burden on her to justify her entitlement to a disability pension (three

evaluations) than it is for the Board to terminate her disability

pension (one evaluation).  She urges us to read into section 3--116 a requirement that three medical doctors concur in the termination

of her disability, and she contends that a contrary reading would

lead to an unjust result and one that is not in keeping with its

spirit and meaning.

	Administrative proceedings must conform to the constitutional requirements of due process of law.  Stillo v. State Retirement Systems, 305 Ill. App. 3d 1003, 1009 (1999).  Procedural due process claims concern the constitutionality of the procedures

utilized to deny a person's life, liberty, or property interest.  East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 415 (1997). 

	As a threshold matter, we must consider whether a

constitutionally protected liberty or property interest is at

stake.  Federation of Teachers, 178 Ill. 2d at 416.  The Rreceipt of a disability pension is a property right that cannot be terminated without meaningful notice.  Wendl v. Moline Police Pension Board, 96 Ill. App. 3d 482, 486 (1981) ("until properly terminated,

[disability pension awards] were present property interests

belonging to the plaintiffs.  Each plaintiff had a right to

continued pension payments, under the statute, so long as the

disability was shown to exist"). 

	We must next determine what process is due.  Federation of Teachers, 178 Ill. 2d at 419.  The essence of procedural due process is meaningful notice and a meaningful opportunity to be

heard.  Stillo, 305 Ill. App. 3d at 1009.  However, due process is a flexible concept, and specific procedural requirements with

respect to notice and an opportunity to be heard vary depending

upon the character of the rights affected and the degree of

deprivation.  Stillo, 305 Ill. App. 3d at 1009.  Thus, some kind of hearing is required before an owner is deprived of his or her

property interest.  Stillo, 305 Ill. App. 3d at 1009.  This reasoning has been extended to benefits that are a matter of

statutory entitlement.  Stillo, 305 Ill. App. 3d at 1009, citing Goldberg v. Kelly, 397 U.S. 254, 261-64, 25 L. Ed. 2d 287, 295-97, 90 S. Ct. 1011, 1016-19 (1970). 

	We believe that plaintiff had an adequate hearing on the issue

of her continued disability status.  A procedure that requires only one medical examination to conclude that the plaintiff is no longer

disabled, but three evaluations to entitle her to the disability

pension, is not inherently unfair and certainly does not infringe upon any constitutional rights.   The medical evaluation requirements in sections 3--115 and 3--116 are anti-fraud

provisions, and we believe that the legislature was justified in requiring more medical evaluations to entitle an otherwise eligible

police officer to a disability pension than to terminate the

pension.  These provisions ensure the integrity of the pension fund

without infringing upon a participant's constitutional rights.

	We next address plaintiff's equal protection argument.  The

guarantee of equal protection requires that the government treat

similarly situated individuals in a similar manner.  In re R.C., 195 Ill. 2d 291, 309 (2001).  The government may not accord

different treatment to persons who have been placed by statute into

different classes on the basis of criteria wholly unrelated to the

purpose of the legislation.  R.C., 195 Ill. 2d at 309.  Where a statutory provision does not affect fundamental rights or make a

suspect classification, the appropriate measure of its

constitutionality is the deferential rational basis test, which

asks whether the statutory classification is rationally related to

a legitimate governmental interest.  In re Estate of Jolliff, 199 Ill. 2d 510, 520 (2002).  If a court can reasonably conceive of

circumstances that justify distinguishing the class benefitted by the statute from the class outside its scope, the classification is

constitutional.  Jolliff, 199 Ill. 2d at 520.  

	Plaintiff contends that the disparity in the number of required medical evaluations in sections 3--115 and 3--116 of the

Pension Code violates her right to equal protection.  We reject her argument.

	The statute requires that all potential disability pensioners

must establish their entitlement to a pension by providing three

medical certifications of their disability status.  Similarly, all

persons receiving a disability pension can lose that pension based

on one medical examination that confirms the termination of their

disability.  The legislature's treatment of potential disability

pensioners and those in receipt of disability benefits under the

Pension Code is a rational distinction and does not implicate equal

protection concerns.  The medical examination requirements in the Pension Code are anti-fraud provisions, and they serve the

legitimate legislative goal of ensuring the integrity of the

pension fund.

  	We also reject plaintiff's request that we construe section 3- -116 to require the evaluations of three medical providers to

certify the termination of a disability.  The statutory language is

clear that only one medical examination must conclude that an

individual is no longer disabled. Thus, we cannot consider other

aids of construction.  Reda v. Advocate Health Care, 199 Ill. 2d 47, 55 (2002). 

	Plaintiff argues next that her constitutional rights were

violated because the Board did not admit into evidence certain newspaper articles and district court complaints.  She asserts that

this evidence supported her claim that her disability had not

ceased or, alternatively, that placing her on active duty would

expose her to a repeatecurrence of the mental condition that caused the

Board to place her on disability in the first place.  Plaintiff

contends that, because the technical rules of evidence do not apply

to administrative agency proceedings, evidence of her fears and

condition should have been admitted.  See 735 ILCS 5/3--111(b)

(West 1996).  Moreover, she asserts that statements offered for

their effect on the listener do not constitute hearsay and are

therefore admissible.

	We reject plaintiff's constitutional argument because she is

essentially challenging a ruling on the admissibility of

documentary evidence.  As we stated above, the guarantee of

procedural due process is one of notice and an adequate opportunity

to be heard.  Stillo, 305 Ill. App. 3d at 1009.  Here, plaintiff had an adequate opportunity to offer documentary evidence relating

to her state of mind. Plaintiff disagrees with the ruling and

characterizes her argument in constitutional terms.  We find no

constitutional violation in the evidentiary ruling.  

	Although we reject her constitutional argument, we will

nevertheless address her challenge to the ruling on the

admissibility of the evidence.  The determination of the

admissibility of evidence is a matter of a trial court's discretion

and will not be reversed absent an abuse of that discretion. 

McCleary v. Board of Fire & Police Commissioners, 251 Ill. App. 3d 988, 997 (1993).  The rule also applies to an agency's decision to exclude evidence.  McCleary, 251 Ill. App. 3d at 997.  An abuse of discretion occurs when no reasonable person would take the view

adopted by the court.  In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998).

	When questioned about the newspaper articles, plaintiff stated

that she forwarded them to her attorney because they served as

examples of ongoing personnel troubles at the police department and

because she believed the allegations described in the articles. 

	Assuming arguendo that the Board erred, we find that its error was harmless because there was sufficient evidence presented on

plaintiff's state of mind, including the plaintiff's own testimony

and that of three doctors.  Moreover, the Board stated in its

written order that it had reviewed the material and concluded that,

if it was admissible, it would not have altered the decision.  For these reasons, if the Board erred, its error would not warrant

reversal of its decision.

	Plaintiff's final argument is that the Board's decision to

terminate her disability pension is against the manifest weight of

the evidence.

	The findings and conclusions of an administrative agency on

questions of fact are deemed prima facie true and correct and are  not to be disturbed unless they are against the manifest weight of

the evidence.  Rhoads v. Board of Trustees of the City of Calumet City Policemen's Pension Fund, 293 Ill. App. 3d 1070, 1075 (1997); see 735 ILCS 5/3--110 (West 1998).  The agency's findings and

decisions are against the manifest weight of the evidence only if

the opposite conclusion is clearly evident.  Rhoads, 293 Ill. App. 3d at 1075.  The mere fact that an opposite conclusion is

reasonable or that the reviewing court might have ruled differently

will not justify the reversal of the administrative findings. 

Rhoads, 293 Ill. App. 3d at 1076.  Moreover, "because the weight of the evidence and the credibility of the witnesses are within the

province of the [agency], there need only be some competent

evidence in the record to support its findings."  Iwanski v. Streamwood Police Pension Board, 232 Ill. App. 3d 180, 184 (1992).  

	Plaintiff argues that the testimony of Dr. Hatcher, who had

treated her for over eight years, should have carried more weight

than that of Dr. Harris, whom the Board selected and who had

limited contact with plaintiff.  Plaintiff also contends that the

resume of Dr. Harris "pales in comparison" to that of Dr. Rhead, in

that Dr. Rhead had substantially more experience and familiarity

with police and their work than did Dr. Harris.  She also asserts

that Dr. Harris's evaluation contained value judgments, as opposed

to objective assessments of her condition.  Thus, plaintiff

requests the reinstatement of her disability pension plus interest.

	We find that there was sufficient evidence to support the Board's finding that plaintiff's disability had terminated.  The

Board reviewed all of the medical testimony and evaluations and

found Dr. Harris's testimony most persuasive.  TAlthough Dr. Hatcher

stated that he treated plaintiff for 81⁄2 years, the record reflects

significant breaks in such treatment and shows that many treatment

sessions did not address plaintiff's disability.  Although we agree

that an individual's own medical provider can have a unique insight

into his or her patient's condition, we must defer to the Board's assessment of the testimony and the credibility of the witnesses. 

	We similarly reject plaintiff's assertion that Dr. Rhead's

experience in evaluating police officers should have rendered his

testimony more persuasive than that of Dr. Harris.  Though Dr.

Rhead had more experience in evaluating police officers than did

Dr. Harris, it was within the Board's purview to credit the

testimony of Dr. Harris more than that of Dr. Rhead.  We also note

that Dr. Rhead testified that there is no medical basis to conclude

that his opinion was any more medically correct than that of Dr.

Harris.

	Finally, we reject plaintiff's assertion that Dr. Harris's

evaluation was biased.  Plaintiff refers to Dr. Harris's July 1998

written evaluation, in which he stated, "Ms. Trettenero believes

the department punished her and thinks the board should continue

paying her benefits.  She implies she deserves some retribution for

what happened to her.  She may be correct but the pension board

approves payment based on the presence of a disability."

	We do not agree that the Board should have discredited Dr.

Harris's evaluation due to the aforementioned language.  We do not

agree that it denotes a bias in his testimony.  Rather, it appears to be a sincere assessment of her medical condition, and the Board

was free to credit it.

	For these reasons, we find that it was not against the

manifest weight of the evidence for the Board to find that

plaintiff was no longer disabled and, accordingly, to terminate her

disability pension. 

	The judgment of the circuit court of Kane County is affirmed.

	Affirmed.

	O'MALLEY and BYRNE, JJ., concur.