SIXTH DIVISION   

	DECEMBER 22, 2000

No. 1-99-3105

KENNETH WILFERT,					)	APPEAL FROM THE

			)	CIRCUIT COURT

		Plaintiff-Appellant,		)	OF COOK COUNTY.

								)

v.			)

								)

RETIREMENT BOARD OF THE FIREMEN'S		)

ANNUITY & BENEFIT FUND OF CHICAGO, and	)

the following members of that Board, as	)

members thereof: JOSEPH F. QUINN,		)

President and Trustee, WILLIAM J.		)

WILKINSON, Trustee, NORMAN S. HOLLAND,	)

Secretary and Trustee, JAMES F. NOLAN,	)

Trustee, PHOEBE S. SELDEN, City		)

Comptroller and Ex-Officio Trustee,	)

JAMES J. LASKI, City Clerk and		)

Ex-Officio Trustee, MIRIAM SANTOS, City	)

Treasurer and Ex-Officio Trustee,		)

JAMES T. JOYCE, Deputy Fire			)

Commissioner, Vice-President and		)

Trustee, and BARBARA A. LUMPKIN, former	)

City Comptroller and Ex-Officio Trustee,)	HONORABLE

			)	JOHN K. MADDEN,

		Defendants-Appellees.		)	JUDGE PRESIDING.

	PRESIDING JUSTICE CAMPBELL delivered the opinion of the

court:

	Plaintiff Kenneth Wilfert appeals an order of the circuit

court of Cook County denying his petition for administrative

review of the decision by the defendant Retirement Board of the

Firemen's Annuity and Benefit Fund of Chicago (Board) to termi

nate Wilfert's duty disability benefits.  This case is related to

Wilfert v. Retirement Bd. of Firemen's Annuity & Ben. Fund of Chicago, 263 Ill. App. 3d 539, 640 N.E.2d 1246 (1994), in which this court held that the Board erred in failing to consider the injury Wilfert sustained during "work hardening" when it denied

him duty disability benefits.  Wilfert, a paramedic, was first

injured when an automobile struck his ambulance.

	The record on appeal discloses that on December 17, 1997,

the Board commenced a hearing pursuant to section 6-153 of the

Illinois Pension Code (40 ILCS 5/6-153 (West 1996)) (Code) to

decide whether Wilfert's duty disability payments should be dis

continued.

	Dr. George Motto, a physician and consultant for the Board

since 1973, testified that once an applicant is granted benefits,

he or she is asked to return periodically for re-examination at

the discretion of the Board.  Dr. Motto testified that he saw

Wilfert in June 1997 and believed that Wilfert should have a

Functional Capacity Evaluation (FCE) and possibly a second

opinion.

		The FCE conducted on August 17, 1997, states

that Wilfert:

		"tested out at the medium-heavy physical demand level for work tolerance with a

maximum lifting ability of 70 lb from floor

to knuckle, 60 lb from knuckle to shoulder

and 40 lb from shoulder to overhead levels

with complaints of bilateral trapezius muscle

tightness and cramping sensation in right

hand dorsal web space between thumb and index

finger with cumulative lifting.  He also

demonstrated the ability to simulate use of stair chair by pulling up and lowering 111 lb

up and down one flight of stairs without

assistance.  This client's job as a paramedic

may require him to lift over 100 lb at vari

ous levels in various conditions.  Therefore,

due to decreased lift capacity, he was unable

to meet job requirements.  A full duty work recommendation cannot be made at this time."

The FCE also states that Wilfert "put forth a maximum physical

test effort."  The FCE notes that "the position of paramedic

rates at the very heavy physical demand level for work."  The FCE later shows a table of "Physical Characteristics of Work" which

rates "Medium Heavy" below "Heavy" and "Very Heavy."

	The FCE recommended Wilfert have three to four weeks of

physical therapy, followed by a work hardening program of two to

three weeks.  The FCE stated that the prognosis for a duty work

release recommendation later was "good."  Based on the FCE, Dr.

Motto believed that Wilfert should have work hardening "because

there didn't seem to be a specific problem and because he was

deconditioned."

	The record contains a "Discharge Note" from the HealthSouth

Center for Physical Therapy & Industrial Rehabilitation, which

states that Wilfert had "attended 3 P.T. visits."  Initially,

Wilfert "was performing the exercise with more vigor than need

ed"; on his second visit, Wilfert reported "feeling like he just

re-injured it for the very first time in 1989."  Wilfert was dis

charged due to lack of progress, with the Discharge Note stating that "P.T. is not indicated at this time."  The Discharge Note

stated that Dr. Motto would be notified.  At the hearing, Dr.

Motto testified that Wilfert tried work hardening, but it

"couldn't be completed."

	Dr. Motto testified that Wilfert was then sent to Dr. James

Ryan, a Consultant in Orthopedic Surgery, for a second opinion. 

Dr. Ryan dictated a report which concludes as follows:

		"Basically, aside from [Wilfert's] complaints

and pain behavior, I could not find anything

clear cut of a neurologic nature, and I

noticed previous physicians have had the same

problem.  His EMG of 7/11/94 was read and was

normal.  On the basis of my physical examina

tion, which was negative, I feel that he is

not disabled and may return to full duties

after a period of work conditioning, because

he has been off from work for so long.  There

is no impairment or disability."

Dr. Ryan's report details the examination of Wilfert's left

shoulder, including tables showing the active and passive ranges

of motion.  Dr. Ryan's report does not contain any description of

any test requiring Wilfert to lift weight.

	Dr. Motto testified that he also received a letter from Dr.

Steven M. Zak, regarding a follow-up examination conducted on

November 21, 1997.  Dr. Zak wrote that while Wilfert had improved

since October, he was "not yet back to his baseline."  Wilfert

was still taking Ibuprofen, Flexeril and Ultram.  Dr. Zak opined that Wilfert had "[c]hronic left-sided cervical polyradiculopathy

with possible exacerbation by excessive stretching at physical

therapy" and "[p]ossible left supraspinatus tendonitis."

	Dr. Zak recommended that Wilfert resume physical therapy at

the HealthSouth.  Dr. Zak opined that therapy should be limited

to heat, ultrasound and massage, followed by gentle stretching

and possible cervical traction if tolerated.  Dr. Zak opined that

while the possibility of work hardening could be addressed at a

later time, the FCE results showed he was not neurologically able

to return to work as a paramedic.  Dr. Zak also noted that if

Wilfert's symptoms persisted or worsened, Wilfert would need a

follow-up EMG and nerve conduction studies.

	At the hearing, Dr. Motto testified that Dr. Zak's letter

"had some different recommendations" from those of Dr. Ryan. 

	Dr. Motto recommended that Wilfert have work hardening under

the direction of Dr. Ryan.  Dr. Motto acknowledged that Dr. Zak

is a board certified neurologist whereas Dr. Ryan is an ortho

paedist, but opined that an orthopedic surgeon is highly quali

fied to evaluate neurologic problems of the musculoskeletal

system.  Dr. Motto testified that he believed Dr. Zak's opinion

was based more on the FCE than any of the neurological findings.

	Wilfert testified that he understood that he was receiving

duty disability benefits due to a neurological injury that

prevented him from lifting heavy weights and grasping properly. 

Wilfert did not think he could serve as a paramedic in his

present condition, but was willing to try therapy.

	The Board voted to send Wilfert into a work hardening

program and that Dr. Motto should consult with Drs. Zak and Ryan

regarding the appropriate course of treatment.

	On January 21, 1998, Dr. Motto sent a letter to the Board,

stating that he had contacted Dr. Zak, whose only input was that

Wilfert should have three to four weeks of physical therapy prior

to entering a work hardening program.  Dr. Motto also wrote that

he had contacted Dr. Ryan, who agreed to prescribe the therapy,

then reevaluate Wilfert prior to a work hardening regime.

	Dr. Zak examined Wilfert on January 23, 1998.  A letter from

Dr. Zak to Dr. Hugh Russell of the Chicago Fire Department stated

that Wilfert's symptoms had not changed significantly.  Dr. Zak's

assessment of Wilfert remained largely the same, but added that

it was "imperative" that Wilfert have a follow-up EMG and nerve

conduction study to ensure he did not have active denervation in

the cervical roots or an evolving left carpal tunnel syndrome.

	The record contains Wilfert's Discharge Summary from

NovaCare Outpatient Rehabilitation, which states that Wilfert had

nine visits between February 2-20, 1998.  The report character

izes Wilfert's compliance as "Good," but notes as part of the

subjective evaluation that his symptoms worsened with exercise. 

The final assessment was that there was little or no improvement

and that Wilfert's progress was limited by subjective complaints. 

The conclusion was that further physical therapy "would not

significantly improve his objective measurements secondary to

limiting behavior."

	On March 3, 1998, Dr. Ryan examined Wilfert and wrote Dr.

Motto that there was no evidence of a polyradiculopathy.  Dr.

Ryan concluded that Wilfert could not respond to any further

therapy and "already had a work conditioning program."  Dr. Ryan

did not recommend another program for Wilfert because "most of

his problems are functional and consist of pain and exaggera

tion."  Dr. Ryan wrote that Wilfert was not disabled and should

be able to work his regular job without restrictions.

	On Wednesday, April 15, 1998, the Board resumed the hearing.

Wilfert's counsel sought a continuance, stating that he did not

receive materials from the Board, including Dr. Ryan's report,

until the late afternoon of the previous Friday.  Board attorney

Lawrence Krulewich did not dispute this, but recommended, based

on Dr. Ryan's report, that Wilfert's benefits be suspended sub

ject to a decision on the merits.  Wilfert's counsel objected. 

The Board granted the continuance without suspending Wilfert's

benefits.

	On April 17, 1998, Dr. Zak wrote Dr. Russell regarding a

follow-up examination of Wilfert, noting that the physical

therapy ended without any definite improvement and that there was

no follow-up EMG and nerve conduction study.  Dr. Zak repeated

his assessment of "[c]hronic left-sided cervical polyradicu

lopathy with possible exacerbation by excessive stretching at

physical therapy" and "[p]ossible left supraspinatus tendonitis." 

Dr. Zak again noted that based on Wilfert's most recent FCE, he

was not neurologically able to work as a paramedic with a very

heavy job level description.

	On May 20, 1998, the Board resumed the hearing.  Dr. Motto

summarized his prior testimony and testified regarding his

consultation with Dr. Zak.  Dr. Motto also testified regarding

NovaCare's assessment:

			"Q	Does it mean Mr. Wilfert was not performing at his maximum level?

			A	Well, it says hard to improve because of the limiting behaviors of pain and

the way he was responding that he wasn't

progressing at all.

			Q	So pain could be causing the limitation of behaviors?

			A	Yes.

			Q	That term does it suggest malingering or not?

			A	Well, it suggests -- I would say that it is to the point where I think the

therapist put that in because they could not

make an objective evaluation because of his 

-- because of the behaviors.  Maybe not just

pain.

			Q	We're not saying that this -- this does not necessarily say that Mr. Wilfert is

being less than honest in his performance,

does it?

			A	No, it does not."

Dr. Motto then read Dr. Ryan's conclusions into the record.

	Mr. Krulewich then asked Dr. Motto about his discussions

with Dr. Zak, his review of all the reports and his prior

examination of Wilfert, culminating in the following exchange:

			Q	Based on all of that can you say to a reasonable degree of medical certainty

whether or not Mr. Wilfert is still disabled

or whether his disability has ceased?

			A	Say that -- ask me the question again.

			Q	After reviewing all of the docu ments I referred to and having the conversa

tion with the doctors that I referred to and

doing the examination of Kenneth Wilfert, do

you have an opinion to a reasonable degree of

medical certainty whether or not Kenneth

Wilfert's disability has ceased?

			A	No.

			Q	You don't have an opinion?

			A	I don't have an opinion.

			Q	Well, this board has the responsibility to pay benefits to a person

who's disabled after making a determination

of that and to stop payment of benefits to a

person whose disability has ceased.

				Can you formulate an opinion to a

reasonable degree of medical certainty at this point as to whether or not Mr. Wilfert

is currently disabled?

			[WILFERT'S COUNSEL]:  I think that has

already been asked and answered.

			MR. KRULEWICH:	It hasn't. Counsel.  It is a slightly different question.

		BY MR. KRULEWICH:

			Q	Is he still disabled?

				The specific question is do you

have an opinion as to whether he's still

disabled?

			A	I understand the question.

			Yes.

			Q	What's your opinion?

			A	At the present time I believe he is not disabled."

Dr. Motto testified that this opinion was "[b]ased on the

evaluations and the consultants."  

	Dr. Motto agreed with Dr. Ryan because Wilfert's problems

were "primarily subjective," that Dr. Zak's evaluation uses words

like "possible" and "probable," nothing definite.  Dr. Motto

opined that the subjective complaints were disproportionate to

the objective findings, stating that "this is the problem that

has run through my mind in this situation from the beginning."

	On cross-examination, Dr. Motto acknowledged that the FCE

stated that Wilfert was unable to meet the demands of his job. 

Dr. Motto admitted that Dr. Ryan's March 3, 1998, report referred to "our prior reports," but that Dr. Ryan had produced only one

prior report.  Dr. Motto admitted that there was nothing in

either of Dr. Ryan's reports to show that Dr. Ryan ever reviewed

or considered the August 1997 FCE.  Dr. Motto admitted that he

could point to nothing in Dr. Ryan's reports that discuss

Wilfert's work capabilities, or suggest that Dr. Ryan considered

or knew the requirements for working as a paramedic.  

	Dr. Motto admitted that Dr. Ryan's March 3, 1998, letter did

not disclose what tests or procedures were used in examining

Wilfert.  Dr. Motto testified that the fact that Dr. Ryan made

conclusions was probative of the fact that he made examinations

sufficient to reach those conclusions.

	Dr. Motto testified that it was necessary to link an injury

or condition to a person's job to decide whether that person was

disabled.  Dr. Motto stated that this was the purpose of the FCE,

but that the FCE was only part of the process.  Dr. Motto added

that one must also be of the opinion that a disability exists.

	Dr. Motto admitted that a normal EMG does not conclusively

establish the absence of a neurological condition.  A person can

complain of symptoms such as pain, tingling and numbness and have

a normal EMG and nerve conduction study.  In such circumstances,

there is an absence of objective evidence of the condition.  Dr.

Motto admitted that Dr. Zak wrote him that he needed a new EMG

and nerve conduction study, but never told the Board that Dr. Zak

wrote that it was "imperative" that these tests be performed.

	Wilfert testified regarding the exacerbation of his

condition by the physical therapy.  Wilfert testified regarding his medication, stating that he had been told by Chicago Fire

Department personnel that he could not work as a paramedic while

on the medication.  Wilfert testified that during his examination

by Dr. Ryan on March 3, 1998, he had told Dr. Ryan he had four

EMGs, two of which showed abnormalities.  According to Wilfert,

Dr. Ryan stated he was going to get those reports, review them,

and send Dr. Motto a letter.  Wilfert also testified that during

this examination, Dr. Ryan performed a test where Dr. Ryan

applied pressure to the top of Wilfert's head while in a prone

position.  Wilfert testified that when he reported a severe neck

pain shooting into his head, Dr. Ryan said that this was normal.

	The Board concluded the hearing by taking the matter under

advisement.  On June 24, 1998, the Board denied a motion to

continue Wilfert's benefits.  On July 31, 1998, Wilfert filed a

complaint in administrative review in the circuit court of Cook

County.  On August 6, 1999, the circuit court entered an order

denying Wilfert's complaint.  Wilfert now appeals.

	This is an appeal in administrative review.  In this case,

the Board's decision was factual in part, because it involved

considering whether the facts supported a ruling that Wilfert's

disability had ceased.  However, the Board's decision also

concerned a question of law because "disability" is a statutory

term referring to a "condition of physical or mental incapacity

to perform any assigned duty or duties in the fire service,"

which is subject to legal interpretation.  See 40 ILCS 5/6-112

(West 1996).  See also Carmody v. Retirement Bd. of Fireman's Annuity and Benefit Fund of Chicago, 305 Ill. App. 3d 600, 605, 712 N.E.2d 870, 873 (1999)(interpreting "disability" under

section 6-112 of the Illinois Pension Code).  Thus, this case

presents a mixed question of fact and law to which the clearly

erroneous standard of review is applicable.  See, e.g., City of Belvidere v. Illinois State Labor Relations Bd., 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998).  Accordingly, the agency's

decision is to be affirmed unless the court is left with the

definite and firm conviction that a mistake has been committed. 

Friends of Israel Defense Forces v. Department of Revenue, 315 Ill. App. 3d 298, 303, 733 N.E.2d 789, 793 (2000).

	In addition, much of the evidence in this case is documen

tary.  Although factual findings by an administrative agency are

held to be prima facie true, a reviewing court may evaluate docu mentary evidence de novo.  Ambrose v. Thornton Township School Trustees, 274 Ill. App. 3d 676, 680-81, 654 N.E.2d 545, 548 (1995).

	Wilfert argues that the overwhelming weight of the competent

evidence showed he remained disabled.  The Board relied on the

testimony of Dr. Motto and the reports of Dr. Ryan.  The weight

accorded an expert opinion is measured by the facts supporting it

and the reasons given for it; an expert opinion cannot be based

on guess, surmise or conjecture.  Doser v. Savage Mfg. and Sales, Inc., 142 Ill. 2d 176, 195-96, 568 N.E.2d 814, 823 (1990); Simers v. Bickers, 260 Ill. App. 3d 406, 412-13, 632 N.E.2d 219, 223-24 (1994).  A disability decision is not only clearly erroneous, but

also against the manifest weight of the evidence, where the

medical opinion was based upon conjecture.  MacDonald v. Board of Trustees of Park Ridge Police Pension Fund, 294 Ill. App. 3d 379, 384, 690 N.E.2d 636, 640 (1998).

	For example, in Sullivan v. Retirement Bd. of Firemen's Annuity & Benefit Fund of Chicago, 267 Ill. App. 3d 965, 642 N.E.2d 727 (1994), the Board denied permanent duty disability

benefits to a paramedic related to a back injury.  This court 

determined that Dr. Russell's findings, corroborated by Dr.

Motto's testimony, could not sustain the Board's decision that

plaintiff was not disabled.  The record showed that Dr. Russell's

report was relatively perfunctory, misstated the results of Sul

livan's tests and could not be reconciled with the findings of

the medical professionals who examined and treated Sullivan.  The

results of Sullivan's FCE, which Dr. Motto had testified was the

most objective measure of functional capacity, showed that plain

tiff was unable to perform the tasks of his job.  A B200 compu

terized weight-lifting test showed that Sullivan had exerted

consistent effort, yet scored low in range of motion, isometric

tests, and in functional back strength.  Dr. Russell's report

contained no mention of these results.  While the Board vaguely

suggested Sullivan may have been malingering, this court found no

support for that suggestion in the record.  Sullivan, 267 Ill. App. 3d at 971-72, 642 N.E.2d at 731.

	In Nowak v. Retirement Bd. of Firemen's Annuity and Benefit Fund of Chicago, 315 Ill. App. 3d 403, 733 N.E.2d 804 (2000), this court affirmed a denial of duty disability benefits to a

paramedic diagnosed with cervical and lumbar radiculopathy, based

on statutory grounds not raised by the Board here.  Justice Buckley took the unusual step of specially concurring in the

opinion he authored to note that he otherwise believed that the

Board's decision was against the manifest weight of the evidence. 

315 Ill. App. 3d at 412, 733 N.E.2d at 810 (Buckley, J., special

ly concurring).  Justice Buckley noted that the treating physic

ian and the objective FCE both concluded that Nowak was unable to

perform as a paramedic.  315 Ill. App. 3d at 412-13, 733 N.E.2d

at 811 (Buckley, J., specially concurring).  While Dr. Motto had

found fault with the work hardening program report concluding

Nowak was unable to perform as a paramedic because Dr. Motto

could not reconcile Nowak's subjective complaints with the objec

tive findings of the report, the record showed that Dr. Motto

misstated Nowak's testimony regarding the subjective complaints. 

315 Ill. App. 3d at 413, 733 N.E.2d at 811 (Buckley, J., special

ly concurring).  Justice Buckley further wrote that Dr. Ryan, the

only doctor to unequivocally testify that Nowak was not disabled,

did not consider the findings of the work hardening program and

thus lacked the information required to objectively evaluate

whether Nowak could work as a paramedic.  315 Ill. App. 3d at

413, 733 N.E.2d at 811 (Buckley, J., specially concurring).

	This case is disturbingly similar to Sullivan and Nowak.  Wilfert is a paramedic who has been consistently diagnosed by his

treating physician with a radiculopathy.  Dr. Ryan disagreed, but

provided no explanation for the problem of pain that Dr. Ryan

states does exist.  The record shows that Dr. Ryan's report was

as conclusory as Dr. Russell's report was in Sullivan.  Dr. Motto testified that the fact that Dr. Ryan made conclusions was probative of the fact that he made examinations sufficient to

support them, but this assumption lacks any factual basis in the

record.  Indeed, Wilfert's counsel brought out factual inaccura

cies in Dr. Ryan's reports, including the statement that Wilfert

"already had a work hardening program."

	As in Nowak, Dr. Motto noted that the subjective complaints were disproportionate to the objective findings.1  Dr. Motto has always characterized Wilfert's complaints as "subjective with minimal objective findings."  Wilfert,  263 Ill. App. 3d at 541, 640 N.E.2d at 1248.  While Dr. Motto may have truthfully testi

fied that "this is the problem that has run through my mind in

this situation from the beginning," he also opined that Wilfert

was disabled when he first applied for benefits.  Wilfert, 263 Ill. App. 3d at 541, 640 N.E.2d at 1248.

  	Moreover, as in Nowak, Dr. Motto misstated evidence.  Dr. Motto testified that Dr. Zak's assessments contained "nothing

definite," just conditions that were "probable" or "possible." 

The record shows that Dr. Zak's reports state that Wilfert had a

chronic left-sided cervical polyradiculopathy; only the exacerba

tion of that condition was listed as "possible."

	In sum, the record lacks any credible factual basis for the

conclusion that Wilfert no longer suffered from the same injuries

that led to his receipt of duty disability benefits.

	Turning to the job-related element of the disability deter

mination, the FCE found that Wilfert was unable to meet the job

requirements of a paramedic.  Dr. Motto testified that the FCE

was only "part of the process," but did not contradict his testi

mony in Sullivan that the FCE was the most objective measurement of functional capacity.  The Discharge Summary from NovaCare

Outpatient Rehabilitation stated that there was little or no

improvement.  Moreover, when the objective tests show that the

applicant is unable to perform, exaggeration would seem to be

relevant only to a claim of malingering.  Dr. Motto avoided a

direct answer to direct questioning on the subject.  Dr. Ryan's

report claims Wilfert is exaggerating.  However, the FCE states

that Wilfert put forth maximum effort.  The NovaCare Discharge

Summary states his compliance was good.  The HealthSouth

Discharge Note states that Wilfert tried to do too much at the

outset of therapy.  Thus, as in Sullivan, the suggestion of malingering is negated by the objective evidence.

	Moreover, as in Nowak, Dr. Ryan's report does not consider the objective testing that concluded Wilfert was unable to

perform as a paramedic.  Indeed, Dr. Ryan's report does not even

suggest that Dr. Ryan is aware of the standards and job demands

by which paramedics are to be evaluated.

	In Nowak, Dr. Motto testified that he was unable to conclude whether Nowak was disabled.  Nowak, 315 Ill. App. 3d at 407, 733 N.E.2d at 807.  In this case, Dr. Motto opined that Wilfert's

disability had ceased.  However, the transcript shows that Dr.

Motto first testified that he had no opinion to a reasonable

degree of medical certainty on this ultimate issue.  

	Indeed, the transcript shows that Dr. Motto gave an opinion

over Wilfert's objection, after repeated questioning from the

Board's attorney, including a "reminder" to Dr. Motto that the

Board had a responsibility to stop paying benefits to a person

whose disability has ceased.  That responsibility, however,

cannot require  a doctor to render an opinion to a reasonable

degree of medical certainty if in fact the doctor does not hold

such an opinion.  Nor should that responsibility result in the

reinstatement of a person as a paramedic who cannot meet

established weightlifting requirements for the job.

	The Board claims that Dr. Motto initially did not understand

the question.  The record shows that Dr. Motto asked that the

question be repeated once.  A misunderstanding thereafter seems

unlikely in light of Dr. Motto's years of experience, which

included attending hearings such as this and answering the

Board's questions on the issue of whether an applicant has a

disability.  The transcript does not show that the question was

confusing or poorly phrased.

	Even if the Board's reading of the transcript is correct, Dr. Motto testified that his opinion was "[b]ased on the evalua

tions and consultants."  As the discussion above shows, Dr.

Motto's opinion and Dr. Ryan's opinions lack a factual basis in this record and are often contradicted by the tests and reports

Drs. Motto and Ryan ordered.  

	In sum, the Board's decision here was clearly erroneous;

indeed, it was against the manifest weight of the evidence.

	The Board's error was compounded by its allocation of the

burden of proof.  The Board maintains that Wilfert's burden of

establishing an entitlement to duty disability payments remains

with him when he is re-examined pursuant to section 6-153 of the

Illinois Pension Code (40 ILCS 5/6-153 (West 1996)).  Section 6-

153 is silent on the issue.  

	The parallel provision of the Illinois Pension Code govern

ing cities with populations under 500,000 requires satisfactory

proof to the Board of recovery.  40 ILCS 5/4-112 (West 1996). 

Article Six of the Illinois Pension Code serves an equivalent

purpose to the objectives of worker's compensation and should be

liberally construed in favor of the applicant to achieve its

beneficent purpose.  Wilfert,  263 Ill. App. 3d at 543, 640 N.E.2d at 1249.  The burden of proof for terminating worker's

compensation benefits falls on the employer.  See, e.g., Fermi National Accelerator Lab v. Industrial Commission, 224 Ill. App. 3d 899, 911, 586 N.E.2d 750, 758 (1992).  Also, the moving party

in a proceeding generally carries the burden of proof.  See,

e.g., Iwanski v. Streamwood Police Pension Bd., 232 Ill. App. 3d 180, 184, 596 N.E.2d 691, 694 (1992).  As Wilfert already was

awarded benefits, the Board appears to be the moving party in

seeking to discontinue them.  Improperly shifting the burden of proof is plain error.  See, e.g., Wayne County Press, Inc. v. Isle, 263 Ill. App. 3d 511, 513, 636 N.E.2d 65, 66-67 (1994).

	In this case, the transcript and the Board's brief make

clear that the Board believed the burden was on Wilfert to show

he remained disabled, rather than on the Board to show his

disability had ceased.  This was plain error.

	For all of the aforementioned reasons, the judgment of the

circuit court of Cook County is reversed.  This case is remanded

to the circuit court for a determination of any sum the Board

owes plaintiff.

	Reversed and remanded for further proceedings.

	BUCKLEY, J., and GALLAGHER, J., concur.

	DIGEST OF OPINION

			KENNETH WILFERT,

					Plaintiff-Appellant,

CASE NAME:	v.

			RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENE

FIT FUND OF  CHICAGO, and the following members of

that Board, as members thereof: JOSEPH F. QUINN,

President and Trustee, WILLIAM J. WILKINSON,

Trustee, NORMAN S. HOLLAND, Secretary and Trustee,

JAMES F. NOLAN, Trustee, PHOEBE S. SELDEN, City

Comptroller and Ex-Officio Trustee, JAMES J.

LASKI, City Clerk and Ex-Officio Trustee, MIRIAM SANTOS, City Treasurer and Ex-Officio Trustee, JAMES T. JOYCE, Deputy Fire Commissioner, Vice-

President and Trustee, and BARBARA A. LUMPKIN,

former City Comptroller and Ex-Officio Trustee,

					Defendants-Appellees.

					PRESIDING JUSTICE

  FIRST 	1-99-3105 	CALVIN C. CAMPBELL	DECEMBER 22, 2000 District	Docket #		Authoring Judge	Date Filed

PANEL MEMBERS:		BUCKLEY, J., and GALLAGHER, J., concur.

SUMMARY:

	Plaintiff Kenneth Wilfert appeals an order of the circuit

court of Cook County denying his petition for administrative

review of the decision by the defendant Retirement Board of the

Firemen's Annuity and Benefit Fund of Chicago (Board) to termi

nate Wilfert's duty disability benefits.  This case is related to

Wilfert v. Retirement Bd. of Firemen's Annuity & Ben. Fund of Chicago, 263 Ill. App. 3d 539, 640 N.E.2d 1246 (1994), in which the appellate court held that the Board erred in denying him duty

disability benefits.  Wilfert, a paramedic, was injured when an

automobile struck his ambulance.

	The appellate court reversed, noting that one of the expert

reports concluding Wilfert was no longer disabled was conclusory,

lacked a factual basis in the record and did not show any aware

ness of the requirements for the job of paramedic.  The Board's

physician misstated the documentary evidence.  The appellate

court noted that suggestions in the testimony and one report that

Wilfert was exaggerating his symptoms were negated by the results

of the objective tests ordered in this case.  The appellate court

further noted that the Board's physician first testified that he

had no opinion on the issue of disability, then gave one over

Wilfert's objection, after repeated questioning from the Board's

attorney, including a "reminder" that the Board had a duty to

stop paying benefits to a person whose disability has ceased.  The appellate court also held that the Board improperly shifted

the burden of proof to Wilfert.

	Reversed and remanded for further proceedings.

	REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

	(Front Sheet to be Attached to Each Case)

___________________________________________________________________________

			KENNETH WILFERT,

					Plaintiff-Appellant,

CASE NAME:	v.

			RETIREMENT BOARD OF THE FIREMEN'S ANNUITY & BENEFIT

FUND OF  CHICAGO, and the following members of that

Board, as members thereof: JOSEPH F. QUINN, President

and Trustee, WILLIAM J. WILKINSON, Trustee, NORMAN S.

HOLLAND, Secretary and Trustee, JAMES F. NOLAN,

Trustee, PHOEBE S. SELDEN, City Comptroller and Ex-

Officio Trustee, JAMES J. LASKI, City Clerk and Ex-

Officio Trustee, MIRIAM SANTOS, City Treasurer and Ex- Officio Trustee, JAMES T. JOYCE, Deputy Fire Commis sioner, Vice-President and Trustee, and BARBARA A.

LUMPKIN, former City Comptroller and Ex-Officio Trustee,

					Defendants-Appellees.

___________________________________________________________________________

	No.  1-99-3105  

	Appellate Court of Illinois

	First District, Sixth Division

	  DECEMBER 22, 2000  

	PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

	BUCKLEY, J., and GALLAGHER, J., concur.

___________________________________________________________________________

	Appeal from the Circuit Court of Cook County

	The Honorable   John K. Madden , Judge Presiding.

___________________________________________________________________________

				   For APPELLANT, Brown, Udell & Pomerantz, Ltd., of Chicago (Robert J. Peters, of counsel)

				   For APPELLEE, Burke Burns & Pinelli, Ltd., of Chicago (Lawrence E. Flood and Mary Patricia Burns, of counsel)