## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lam bert v. Downers Grove Fire Departm ent Pension B oard , 2013 IL App (2d) 110824

Appellate Court Caption EDWARD LAMBE RT, Plaintiff-Appellant, v. THE DOWNERS GROVE FI RE DEPARTME NT PENSI ON BO ARD, DefendantAppellee

.

District & N o. Second District Docke t No. 2-11-0824

Filed Rehea ringdenied Fe bruar y 21, 2013
Marc h 20, 2013

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

. ) The denial of plaintiff’s application for a line-of- duty disability pension

was reve rsed and the cause was rema nded to the pension board with direc tions to enter an order g ranting the application, since t h e b o ard’ s decision was ag ainst the mani f e st weight of the evidenc e, espec ially when plaintiff was found not c redible as to matters tang ential to the questions
at issue, and the medical evidenc e of plaintiff’s disability that was found

cre dible was discounted by the board beca use of the finding that plaintiff
was not cr edible.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 11-MR-183; the Hon. Robert G. Gibson, Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Ba rry A. Ketter , of B arr

y A. Ketter , P.C., of Chi cag o, for a ppellant.

L ance C. Malina and J acob H. Kar aca , both of Klein, Thorpe & J enkins, L td., of Chicag o, for a

ppellee.

Panel J U ST I CE SC H O ST O K d elivere d the judgme nt of the court, with opinion.
J ustice Jorge nsen conc urre d in the judgme nt and opinion.
J ustice McL are n dissented, with opinion.

OP INION

¶ 1 Plaintiff, Edwar d L amber t, a firef ighte r/para

medic employ ed by the Villag e of Downe rs Grove
, applied for a line-of- duty disability pension from defe ndant, the Downer s Grove Fire D e p a r tme nt Pension Boa

rd (B oard)

. Following a public hear ing, the Boa rd denied the r e q

u e s t for the pe nsion. L amber

t then sought administrative revie w in the circ uit court of Du Page County

. The trial court upheld the Boa rd’s decision, and L amber t now appea ls from the trial court’s or der. We re verse and re mand.

¶ 2 I . BA CKGROUND ¶ 3 L amber

t was hired as a firef

ighte r by the Villag e of Downer s Grove in Marc h 1997. On September 10, 2009, L amber t filed an application wit h t he Boa rd, seeking a line-of- duty disability pension beca

use of a rig ht-knee injury that “ju s t i s n o t responding to treatment which would allow [hi m] to return to active duty .” At the public hearing held on Marc h 16, 2010, L amber

t testified that, in September 2005, he injured his r ight knee during a training exercise. He “had a pop” in the knee and felt “excruc iating pain.” After g oing to the hospital, he wa s g iven a knee brac e and w as take n off duty for one month. On October 27, 2008, he

was running on a trea dmill during a mandatory fitness program when he had “excruc iating pain” in his right knee. He told his lieutenant and filled out an acc ident repor t. He then completed his shift. ¶ 4 The next day
, L amber t saw an orthopedic doctor, Dr

. Gl u ek
, an d h ad a m agn etic

resona nce imag ing (MRI ) of his right knee. Gluek rec ommended “conse rvative car e.” L amber t soug ht a second opinion from Dr. David Mehl, who rec o m m en ded arthrosc opic
surg ery on the rig ht knee, which L amber t underw ent in April 2009. He had a second surg ery on Dec ember

22, 2009, duringwhich “de bris and sca r tissue” we re r emoved. ¶ 5 After the 2008 injury
, L amber t favor ed his rig ht knee; he limped, and when he stood up from a seate d position, he had to put all of his w eig ht on his le ft leg

. This cause d back pain that radiated down his leg s and cause d tingling and numbness in his fee t. An MRI of his back

reve aled bulging discs and a possible hernia

. A doctor who examined him for an independe nt

-2-medical examination (I ME) in his worke rs’ compensation case opined that the leg and foot

pain was a re sult of his diabetes. L amber t’s treating phy sician for diabetes disag ree d. Both
t he I ME phy sician and Gluek advised him that he might need a total knee re p l ac em en t at about ag e 50. ¶ 6 L amber

t testified that he had underg one a functional capa city evaluation (F CE). During this evaluation, which he did not descr ibe, he “fully expel[ led] eff ort” to th e b es t o f his ability and wa s told to work throug h the pain that he e x perie nced. ¶ 7 L amber

t stated that he could not squat, kneel, cra wl, o r cl i m b up o r down ladder s. W al king on stairs was difficult and painful. He was not allowed to car ry more than 2 5 pounds; he could not car

ry a h o s e o r an air pack, l et alone a person. He sti ll had problems with his back an d h i s ri g ht foot, which still beca me numb. He also had neck pain and heada ches a

nd did not have full movement in his neck. ¶ 8 Under

questioning f

rom the B oard me mbers, L amber t testified that he used a trea dmill

or elliptical exercise machine three to four times a month befor e the October 2008 injury

. He had experience d knee pain “continuously” since the September 2005 injury ; the doctor had told him that he would have pain and “would have to deal with it.” Since his Dec ember 2009
surg ery , the pain “ar ound the knee on the outside” was fine, but “[i] nside the knee [was] just
not improving.” He still had difficulty bending
, kneeling
, and squatting. His doctor descr ibed the problem as “maltra cking ,” wher e the kneec ap did not proper ly slide in its trac k when the knee was bent. His knee locked up, and he experience d pain and could lose his balanc e. The doctor g ave him a br ace to help stabiliz e the kne e. L amber t did not think that he could “do the job of a firema

n.” He attended phy sical thera py three t i mes a wee k, riding an exercise bike, doing basic exercises, and stretching

. He weighed 260 pounds, 20 to 30 pounds more than when he started with the depar tment. He had been with the depar tment four or five y ear s when he was fir st diag nosed wit h diabetes; his doctor dia g nosed him as “a late onset Ty

pe 1.” He used an insulin pump. He had taken Vicodin but he ha d stopped bec ause his doctor wanted him to stop in order to pre vent addiction. ¶ 9 L amber

t had not been rele ased to return to work since his second surg ery , and he was not

wo rk i n g i n any capa city at the time of the hearing. He could not do any work around t h e house that require d him to squat or g et on his knees, nor co u l d h e d o “any kind of heavy work.” ¶ 10 Var ious incident re p o rt s , medical rec ords, I ME repor ts, and FCE repor

ts wer e ente red into the rec o rd. The three doctors who perf ormed I MEs at the reque st of the Boa rd all conclude d that L amber

t was disabled f

or ser vice in the f

ire de partment as a firef

ighte r. Dr. Wil liam Malik dia gn o sed L amber t as suffe ring from “sig nificant chondroma lacia of the rig ht patella” and noted that, while L amber t did “not have a signific ant patellar g rinding test,” he did have “diffuse pain in the retropatellar are a.” L amber t had failed to signific antly improve

even afte r “re asonable thera py postoperatively” and various injections. Malik o p i ned that L amber t had “re ache d the point of maxi mum improvement.” Malik agree d with the J uly 21, 2009, FCE that had found L amber t to be able to perf

orm around 85% of the demands of his job and found that he “ca

nnot perf orm the full duties of a firef ighte r at the prese nt time.” Dr. J oseph Thometz found “adva nced chondroma lacia” and noted that L amber t had “structur al problems with his knee that are causing pain that would prec lude him from returning to his

-3-duties as a fire fig hter.” Dr. Terr ence Moisan noted that L amb er t h ad underg one surg ery ,

“sig nificant ph y s i ca l thera py ,” and injections, “with no appar ent improvement.” His examination of L amber

t’s knee reve aled “norma l rang e of motion, minimal crepitations, but pain over the medial joint line.” L amber t’s streng th and g ait appea red normal. Ba sed on his examination and revie w of FCE and other evalua tions, Moisan opined that, while L amber t could safe ly perf

orm j o b duties up to the medium and occa sionally heavy level, it was unlikely that he would re turn to the “ve ry heavy” leve l of job duties. ¶ 11 Four FCEs wer e conducte d by METT Thera py Service s betwee n J uly 31 and Nove mber 3, 2009. The perc entag e of “job demands met” noted in the repor ts rang ed from a low of 66% in J uly to a high of 85% in September, and the perc entag e of “consistent/valid tests” rang ed from a high of 97% in August to a low of 83% in November

. The FCEs noted that L amber t exhibi ted “pain behavior s of g ri macing and g runting ,” espec ially while squatting and also while cra wling, lifting, and climbing s t ai rs an d ladder s. The August and September FCEs
sug g ested that L amber

t would benef

it from continued work conditioning “in order to return to work full time without restric tions.” The November FCE noted that the 83% consistency of eff ort/validity result “would sug g est the client prese nted with se g mental inconsistencies during this evaluation resulting in mild self limit ing behavior s.” L amber t was still able to perf orm only at the “hea

vy phy sical demand level,” while his job was classified at the “ver y heavy phy sical demand level.” As of the November FCE, L amber t was still “re stricted from work.” ¶ 12 The Boa

rd voted to continue the hearing, as L amber t’s most rec ent surg ery was afte r all

o f t h e I M E s and FCEs had been perf ormed. The Boa

rd explained that some of the information rec eived afte r the surg ery “appe ars to at least ref lect some signific ant chang e in [L amber t’s] conditi on for the be tter.” ¶ 13 The Boa

rd rec onvened the hear ing on September 7, 2010. L amber t submitt ed additional evidenc e that was made part of the rec ord. Mehl, who ha d treated L amber t for over a year , opined in a May 7, 2010, letter that L amber t “ has not ma de a sufficie nt r ecove ry to be able
to return to [ sic ] a firef

ighte r.” Fur

ther, Mehl opined that L amber t “is perma

nently disabled from his job as a f

irefighter.” ¶ 14 L amber

t also underw ent an FCE on August 28, 2010, the summary repor t of which was made part of the rec ord. Michae l H ornbuckle
, a cer tified work capa city evaluator, repor ted that the overa ll test findings
, combined with clinical observations, sug g ested both that L amber t exerted full phy sical eff

ort in the test and that L amber t’s “subjec tive repor

ts of pain and associate d disability [were] both rea sonable and reliable .” After descr ibing his finding s reg arding L amber

t’s ability to lift and car ry weight, sit, stand, and walk
, Hornbuckle summarized that L amber t “nee ds to be a full job match befor e he can return to work as a firema n, and he does not meet the full list of demands for his job at this time.” Whil e L amber t had “g ener al tolerable p a in le v e ls w it h e veryday activities,” his pain levels incre ased “s i gn i fi cantly with rig ht knee flexion, direc t pressure to the rig ht knee, and loading of t h e rig ht leg ” such that, althoug h he is “ver y strong ,” he “is limit ed in his abilities due to pain.” Hornbuc kle felt that L amber t would “have difficulty completing a work-c onditioning
prog ram” at that time but sug g ested continued functional reha bilitation to help corr ect some noted “biomecha

nical hip faults” that added “undue stress to the rig ht knee in g ait, and have

-4-the ability to contribute to his continued rig ht knee dy sfunction.” He also recommended

further discussions reg arding pain control to help manag e pain, but conc luded that “at this time [ L amber

t] is not ready

to return to wor

k full time.” ¶ 15 The re cord a lso included an August 30, 2010, report by Mehl, who not ed that L amber t had “sig nificant post-traumatic chondroma lacia.” L amber t had rec eived “some mild pain relief ” from Euflexx a injections g iven to him in May 2010. Mehl noted “go o d ra ng e of motion from 5 degree s to 125 degree s” and “nea rly normal” streng th, but also noted “seve re cropitus throug hout motion.” He opined that L amber t “is no t able to return to work as a firef ighte r and I believe this will be a perma nent condition as a result of the injury to his knee and subsequent surg erie s.” L amber t “w i l l be perma

nently disabled from work as a firef ighte r” a nd “is not a ca

ndidate for

further work c onditioning.” ¶ 16 The Boa

rd then notified L amber

t that, at its Marc h meeting
, it had authorized the use of a “surveillance d at a gat h er ing service ” to rec ord L amber t’s activities outside his house on the morning of August 24, 2010, and had just rec eived a DVD of that surveillance

. Although the s urveillanc e had been made over approximately one hour, the camera had b ee n t u rned off when L amber

t was not seen; the actua l rec ording lasted 27 minutes and 48 seconds. After viewing the DVD, L amber t had no objection to its admission, and the Boa rd voted to “ente r the surveillanc e evide nce into evide nce.” ¶ 17 The Boa

rd then questioned L amber t reg arding the new evidenc e. L amber t stated that he did not take any pain medication on the day of the August 2010 FCE, beca use the test would “not [ be] a true evaluation o f wh at m y capa biliti es are.” L amber

t’s counsel tol d the Board that L amber

t would not be allowed to take one of his presc ribed pain medications, Vicodin, if he retur n ed t o du t y

. L amber t stated that some day s he could g et by with taking only ibuprofen f

or pain, but some day s he would take up to e ight Vic odin. Pain often preve nted him from g oing to sleep or staying aslee p. During a discussion of L amber t’s phy sical restric tions, the following took plac e: “[BOARD] PRES I DENT LAZ Z ARA: Help me with this one, beca use you just said
you can’ t kneel, you can’ t cra wl, but y et you have been sitti ng in that chair twisting back and for th on that rig ht knee. He lp me.
MR. LAMBE RT: No, I am twisting on my left knee and I have my rig ht knee on top of my foot.
PRES I DENT LAZ Z ARA: Ihave be en watchingyou. Ihave be en. MR. L AMBE RT: So have I , Iam not.” ¶ 18 When asked about lear ning to manag e his pain levels, L amber t stated that his doctor told him that pain manag ement might help his ever yday life but that it would not be sufficie nt to return him to work. He had made adjustments to the way that he walked and had worke d on “ce rtain aspec ts” of function reha bilitation of his hip. The Boa rd commented that the August 2010 FCE noted that L amber t could sit comforta

bly for only about 30 minutes at a time, and the Boa rd asked L amber

t if he had driven for more than 30 minutes at a time. L amber t stated that he had d ri v en al m o s t two hours to g et to the hear ing that day

. The Boa rd then asked L amber t if he drove a larg e vehicle (he occa sionally drove his wife’ s Suburban), if his house had stairs (14 stairs that he walked up and down 2 to 3 times da ily), and if he used a ladder

-5-to do home maintenanc e (no). After L amber t’s co u n s el made a short closing statement, during which he mentioned, among other things, L amber t’s inability
, per the FCE, to lift 100 pounds and his difficulty climbing a ladder
, L azzara stated, “I h ave no question that he is disabled. What I am questioning is his cre dibility here .” L azzara asked L amber t a g ain how
many times a day he walked up and down the stairs (2 or 3) and h ow much he weighed (“200–” ), then stated, “That is what I ’m g etting at, well over the 100 pounds. That’s what I

am g etting at, the cre dibility .” Counsel then explained that, in his view, the FCE showed that L amber t could move his own body but could not car

ry the additional weight. ¶ 19 L amber

t testified that he had reque sted an extens i o n t o k ee p up his cer tification as a para medic but was unsure of the s t at u s o f t h at reque st. Battalion Chief Matt Be y er then testified t hat the ex tension was not g rante d; L amber t’s licens e had expired, and he was no longe r a para

medic. Be cause L amber

t was h i re d as a firef

ighte r/para

medic, he could not return to his job without the paramedic license

. ¶ 20 The Boa

rd then unanimously passed a motion to deny L amber t’s pension application for lack of disability

. In its written fi n d i n gs i s s u ed later, the Boa rd noted that the three I ME doctors whom it ha d selec ted and L amber t’s doctor all indicated that L amber t w as “unable
to perf orm the duties of a Fire fig hter.” Howeve r, while finding the repor ts from those doctors “to be c redible,” the B oard a lso found that the finding s of disability “we re ba sed primar ily

on Fire fig hter L amber

t’s subjective statements of pain to the phy sicians.” The Boa rd noted that the I ME doctors also considere d the FCEs, and the Boa rd was “not persu ad ed b y portions of the FCEs that wer e based on Fire fig hter L amber t’s subjective statements of pain
to the thera

pists.” The Boa

rd found L amber

t “not to be a cre dible witness” as to his inability
to perf orm the job of firef

ighte r due to rig ht knee pain; having “witnessed the phy sical position and demeanor” of L amber t during the t wo day s of hearing s, the Board found “his testimony reg arding his level of pain not cre dible.” L amber t was able to control his pain with Vicodin and/or ibuprof

en and “ could help lea

rn to manag e his pa in le vels on the job.” The Boa rd considere d the surveill ance DVD, which showed L amber t “in his y ard walking up steps and car

ry ing household objects with littl e trouble, activities that he has simult aneously testified that he ha s too much pain to perf orm ( i.e.
, sitti ng , climbing, lifti ngand jostling).” In addition, the Boa

rd considere d evidenc e that L amber t had not proper ly rene wed his
para medic certification and that he had driven to the September 7 hearing and “had been stuck in tr aff

ic for more than an hour, yet claimed an inability to sit long periods of time or
operate/drive de partment ve hicles.” ¶ 21 L amber

t then soug ht administrative revie w in the circ uit court of Du Pag e County

. After considering the briefs and arguments of the par ties, the court f

ound that there was “ at least

some evidenc e in the rec ord to support the [B]oard’s finding s and decisions” and upheld the Boa rd’s de cision deny

ing L amber

t’s pension application. L amber t therea fter f

iled a timely notice of a

ppeal.

¶ 22 I I . ANALYSI S ¶ 23 L amber

t first contends that the Boa rd’s decision to deny his application for a line-of- duty disability pension was ag ainst the m anife st weight of t h e evidenc e. W e agr ee. A disability pension “shall not be paid until disability has been established by the board by examinations

-6-of the firef ighte r at pension fund expense b y 3 p h y s icians selec ted by the board and such other e vidence as the boa rd dee ms nece ssary .” 40 I L CS 5/4-112 (West 2010)

. In an appe al from an administrative ag ency ’s decision, we revie w the ag ency ’s deter mination, not that of th e trial court. Szewczyk v. Board of Fire & Police Commissioners
, 2011 I L App (2d) 100321, ¶ 20. The ag ency ’s fac tual deter minations are held to be prima facie true and corr ect, and we will uphold those deter minations unless they are ag ainst the manifest weight of the evidenc e. Goodman v. Morton Grove Police Pension Board
, 2012 I L App (1st) 111480, ¶ 24. A fac tual finding is ag ainst the manifest weight of the evidenc e when the opposite conclusion is clea rly appar ent. Szewczyk

, 2011 I L App (2d) 100321, ¶ 20. We revie w de novo , as a question of law, an ag ency ’s interpre tation of a statute or an administrative rule. Id. Finally
, we apply the “cle arly err oneous” standard to mix ed questions of law and fac t. Id. An
ag ency ’s d ec ision is clea

rly err oneous when the reviewing court comes to the definite and firm conclusion that the ag ency has committed an err or; this standard provides some defe renc e based on the ag ency ’s experience and expertise and falls betwee n the de novo and manifest-w eig ht standards of revie w. Id. In such proce eding s, the plaintiff bear s the burden of proof. Id. I f there is e vidence of rec ord that supports the ag ency ’s deter mination, it must be aff irmed. Roszak v. Kankake e Firefighters’ Pension Board
, 376 I ll. App. 3d 130, 138-39 (2007). “Howe ver, if the ag ency relies on fac tors that the statute d o es n o t intend, fails to consider an issue, or the decision is so implausible, the decision may be reve rsed as arbitra ry and ca pricious.” Ellison v. Illinois Racing , 377 I ll. App. 3d 433, 440-41 (2007). ¶ 24 In Roszak
, a firef ighte r filed f

o r a li n e

- o f

- d uty d is ability pension. All three pension-boar dappointed phy sicians found that the plaintiff was disab l ed o r i n capa ble of perf

orming his duties as a firef

ighte r. Nonethele ss, the pension board found that the plaintiff was not entitled
to a disability pension beca use he was not a cre dible witness. The pension board found that the plaintiff was not cre dible beca use of his evasive testimony an d h i s lack of candor

. S p ecif ically
, the pension board found that the plaintiff was evasive beca use he i n i t i al l y ref used t o gi v e a residence addre ss, he refused to state what he was curr ently ear ning, and he ref used to a nswer questions a s to his net worth. The pe nsion boa rd further believed that the plaintiff had exacer

bated his condition by g oing on a snorkeling vacation, p o s tp o n i n g

s u rgery , and failing to see a doctor for months. The pension board reje cted the plaintiff’ s explanation that h e had not seen a doctor sooner due to worke rs’ compensa tion and aff ordability issues. The pension board conclude d that, if the injury wer e as serious as the plaintiff contende d, he wo u l d h av e taken rea sonable medical steps to promote rec overy

. Roszak
, 376 I ll. App. 3d at 137. Fur ther, the pension board discounted the finding s of all of the doctors who had deter mined that the plaintiff was disabled, beca use such finding s wer e based on their subjective deter mina t i ons of what the plaintiff, whom the pension board decla red not c redible, ha d told them. Specifically , the pension boar d stated:
“ ‘[T] he phy sicians who deter mined that [t he plaintiff] is s t i l l disabled, based their finding s on wh at the [pl aintiff] told them and on subjective deter minations. I f the [pl aintiff] was not truthful with this Boa rd, we can assume that he was not truthful with the B oard’ s examini ngphy sicians.’ ” Id. at 143. After the pension board ruled t hat t he plainti ff was not en t i t l ed to a dis ability pension, the trial court a ffirme d. Id. at 138.

-7-¶ 25 The revie wing court then reve rsed, fin d i n g t h at sever al of the pension board’ s cruc ial

finding s used to deny the firef ighte r’s disability wer e aga i n s t the manifest weight of the evidenc e. Id. at 139. The revie wing court noted that the pension board found that the plaintiff
was not cre dible beca

use he was evasive in responding to questi o n s ab o ut wher e he lived, wher e he worke d, what he ear ned, and his curr ent net worth. The revie wing court found that these issues wer e tang ential at best to the issues befor e the pension board and did not impact the plaintiff’s vera city conce rning his injury

. Id. at 140. The revie wing court found that the plainti ff’s “eva siveness” was not wilful obstructionism but rathe r ref lected that he was confuse d or did not understand the pension board’ s questions. Id. at 141. ¶ 26 The revie wing court further reje cted the p e n s io n b o a r d ’ s f in d ing that the plaintiff eng ag ed in “sy mptom magnific ation.” Id. at 142. The c ourt noted the pe nsion board’s e x ample that the plai n t i ff cl ai m ed that he was in constant pain and neede d surg ery , y et he postponed
surg ery to g o on a snorkeli n g v acation. The reviewing court found that the record actually

reve aled that the pla intiff had postponed surg ery due to unce rtainty over whether

worke rs’
compensation would pay for the surg ery

. Id. Moreove r, the plaintiff had tried to promote his

rec overy at hom e, as he continued his thera py doing various ex erc ises. Additionally
, there

was no evidenc e supporting the pension board’ s asser tion that the plaintiff canc elled surg ery dates to g o snorkeling

. Id. ¶ 27 The revie wing court further noted that, af

ter the pe nsion boa

rd had deter

mined that the plaintiff was not cre dible, it used this deter mination to discredit all of the medical opinions
prese nted at t he hearing that indicated that the pl aintiff was disabled. The revie wing court found that this was improper. Id. at 1 4 3

. The revie wing court explained that the pension board’ s doctors’ medical opinions and diag noses had been supported by the medical testing,
e.g ., their phy sical examinations of the plaintiff and the results of t he MR I

. The reviewing
court a dditionally

noted the assumption that patients tell their doctors the ir true c onditions and have no motive to falsify

. Id. at 143-44 (citing Greinke v. Chicago City Ry. Co.
, 234 I ll. 564, 570-71 (1908))

. Fur thermore
, the revie wing court explain ed that, as it had alre ady deter mined that the pension board’ s assessment of the plaintiff’s cre dibility was ag ainst the manifest weight of the evidenc e, it was err or for the pension board to disc ount the doctors’
repor ts based on the plaintiff’ s purportedly suspect cr edibility

. Id. at 144. ¶ 28 Finally
, the revie wing court found that the pension board had mischara cter ized some of the doctors’ opinions to sug g est that th e p l ai n t i ff was no longe r disabled. Id. As the revie wing court found that the pension board’ s decision was ag ainst the manifest weight of the evidenc e, it reve rsed the lo wer court’s decision and rema nded with direc tions that the pension board enter an order g ranting the plaintiff’s application for line-of- duty benef its and
any other re lief to which he was e ntitled. Id. at 148-49. ¶ 29 We believe that, as in Roszak
, the Boa rd’s decision here was ag ainst the manifest weig ht of the evidenc e beca

use (1) it found that L amber t was not cre dible based on matters that wer e tang ential at best to the issues that wer e befor e the Boa rd, and (2) althoug h the Boa rd found “cr edible” the medical evidenc e that indicated L amber t was disabled, it then we n t on to discount all of the evidenc e based on its finding that L amber t was not cre dible. We addre ss in turn eac h of the B oard’ s findings a s to L amber t’s cre dibilit y

. ¶ 30 First, the Boa

rd found that L amber

t was not cre dible based on the phy sical position and

-8-demea nor that he demonstrated at the hear ing. Specifica lly
, the Boa rd found that L amber

t’s testimony reg arding his level of pain wa s n o t cre dible based on his appar ent ability to sit without pain. L azzara also found that at the hear ing L amber t was able to twist back and forth

on his rig ht knee without any problems (althoug h L amber t strong ly disputed that assessment, claiming that he was actua lly twisting back and f o rt h o n h i s uninjured l eft knee). W e note that L amber

t never testified that he could not sit. Rather, he repe atedly testified that he could
not kneel, squat, cra

wl, climb a ladder
, or car

ry heavy loads. Indeed, L amber t testified that, when playing with his children, he would sit rathe r than kneel or cra wl. We note that in the August 2 0 1 0 FCE there is a ref ere nce that L amber

t was not able to sit for more than 30 minutes at an y one time. There is no indication in the FCE, howeve r, that L amber t selfrepor ted that he could not sit or drive f or a pr olonge d time. Instead, the F CE’s findingthat L amber t coul d sit only for a cer tain amount of time was based on the examiners’ observations of what they believed he could do. We do not agree with the Boa rd’s appar ent logic that, beca

use he could s it better than the m ost rece nt FCE indicated tha t he could, he

nece ssarily could do ever

y thing else (knee l, squat, cra wl, climb, or car

ry ) better to the point that he was not disabled. Moreover, even if L amber t was able to twist on his right knee, it did not mean that he could kneel, squat, cra wl, climb, or car

ry heavy objects, all things that the medica l examiners consistently said that he c ould not do. ¶ 31 Fur

ther, we note that at the hear ing L amber t indicated that he agree d with the most re cent FCE, particula

rly with its conclusion that he was not able to continue to work as a firef ighte r due to his disability

. L am b er t ’s agre ement with the FCE is the only basis to say that his testimony reg arding his a bility to sit was inconsistent. We believe that this one small point in the rec ord is insufficient to undermine the entirety of L amber t’s testimony and all of the other e vidence that indicated L amber t was disabled. ¶ 32 Second, the Boa rd reje cted L amber

t’s testimony

that he could not wor

k as a f irefighter due to his knee pain beca

use L amber

t ha d testified that he could control his kne e pain with Vicodin and ibuprofen. Howeve r, t he record reve als that L amber t wa s not allowed to take Vicodin while he was working

. Thus, whether L amber t was able to control his pain while he was not workingwas not re levant to the issue bef ore the Boa

rd. 1 ¶ 33 Third, the Boa rd found that the most re cent FCE undermined L amber t’s testimony that he could n o t m an age his pain levels on the job. To support its finding
, the Boa rd took languag e from the August 2010 FCE out of context. The complete sentenc e upon which the Boa rd partially relied states: “F urther discussions reg arding pain control could help h im le arn to m an age h i s p ai n levels, but at this time he is not ready to return to work full time .” (Emphasis added.) Thus, despite the Boa rd’s conclusion to the contra ry , the most rec ent FCE

We not e tha t the dis sen t sugg est s tha t Lambert pro vided con tr adi ct ory te st imony re gardi ng 1 his use of V ic odi n for pai n con tr ol. At the Ma rc h 16 hea ri ng, Lambert te st if ie d tha t he was not ta king V ic odi n bec aus e his doc tor want ed him to s t o p t a ki n g it in ord er to avoid add ic ti on. At the Sept ember 7 hea ri ng, Lambert te st if ie d tha t he woul d ta ke up to ei ght V ic odi n on some days in ord er to con tr ol his pai n. We do n ot bel ie ve tha t Lambert ’s te st imony is inc ons is te nt. A re aso nab le inf er enc e fr om his te st imony is tha t he at te m pte d to st op ta king V ic odi n, but due to h is con ti nue d pai n, he hadto keep t aking it

.
-9-does not contra dict L amber t’s testimony

. 2 ¶ 34 Four

th, the Boa

rd found that L amber

t was not cre dible beca

use of his failure to rene w his
para medic cer

tification. The limit ed number of extensions h e soug ht to rene w his

cer tification arguably showed that h e was not working toward improvement and

ree mploy ment. Even so, this evidenc e was minor in light of all the other evi d en ce t h at indicated L amber

t was unable to work as a firef ighte r/para

medic due to his disability

. ¶ 35 Fi ft h
, the Boa rd found that a surveillance rec ording taken of L amber t doing va

ri o u s projec ts around his home undermined his c redibility that he was disabled. We note that the surveillance DVD was not made part of the rec ord. Ordinar ily
, the absenc e of such evidenc e in the rec ord would be construed ag ainst the appellant, L amber t. See Foutch v. O’Bry ant , 99 I ll. 2d 389, 391-92 (1984) (explaining that any doubts that might ar i s e from the incompleteness of the rec ord will be resolved ag ainst the appellant)

. Howeve r, here it is not appropr iate to construe the incomplete r ecor d ag ainst L amber t, beca use i t was the Boar d’s burden to make the DVD part of the rec ord befor e the trial court if it wishe d to r ely on it to support its finding s. Specifica lly
, section 3-108(b) of the Administrative Review L aw (735 I L CS 5/3-108(b) (Wes t 2 0 1 0 )) provides that it is the administrative ag ency ’s burden to prese nt the court of r eview w ith the entire rec ord of pr ocee dings, inc luding the e vidence it considere d. See also Mueller v. Board of Fire & Police Commissioners
, 267 I ll. App. 3d 726, 733 (1994) (it is the administrative ag ency ’s duty to provide the trial court on administrative revie w with a suffic i en t l y complete rec ord of the proce eding s so that the trial court can proper ly perf

orm its judicial revie w function). As the Boa rd did not introduce the DVD into the rec ord at the trial court, the DVD did not become part of the rec ord on appea l. Thus, the missing DVD should not be held ag ainst L amber t, who never had it in his control or possession. ¶ 36 Moreove r, as it was the Boa rd’s obligation to submit the DVD, we cannot presume in its favor that whateve r was on it was suffic i en t t o support its cre dibilit y finding s. This is particula rly true since counsel for

the Board repre sented at oral argument that “any part of the video that was relied on is in the transcr ipt of the hearing befor e the Pension Boa rd.” See People v. Banks
, 378 I ll. App. 3d 856, 865-66 (2007) (abse nce of videotape from rec ord did
not rende r rec ord incomplete wher e v i d eo tape did not include any evidenc e not alre ady
appea ring in the rec ord). In its finding s, the Boa rd stated that the DVD showed L amber t “in his y ard walking up steps and carry ing household objects with littl e trouble, ac tiviti es t hat he has simult aneously testified that he has too much pain to perf orm ( i.e.
, sitti ng , climbing, lifting a nd jostli ng ).” The Board made no findingas to whethe r L amber t appea red to be in pain. We also note that the Boa rd did not question L am b er t wh et her he was on pain

T he dis sen t al so ass erts tha t the Novem ber 2009 FCE sup por ts the Boar d’s que st ion ing of 2 Lambert ’s c r edi bil it y, be cau se tha t re por t ind ic at ed tha t Lambert gav e onl y 83 % ef for t dur ing the

exa m ina ti on, whic h sugg est ed tha t he was engaging “i n m il d sel f li m it ing beh avior s.” However, as Lambert sub m it te d to f

ourot herFCEs andal l o f t hos e i ndi cat ed t hat he gav e maximum ef for t, we bel ie ve tha t the Novem

ber 2009 FCE, to the ext ent tha t it que st ion s Lambert ’s ef for t, is an ano m al y. We al so not e tha t the Boar d did not ci te the Novem ber 2009 FCE as a re aso n to re j ect Lambert ’s

cr edi bil it y.

-10-medication at the time the video was taken. Ove rall, we find that L amber t’s testimony

and what t he Board observed on the DVD are not inconsistent. L amber t never testified t hat he could not walk up steps. He testified that he could notclimb up a ladder . L amber t also did

n o t t es t i fy that he could not car ry household objects. He testified that he could not car ry heavy objects, such as another person down a ladder
, something he would be require d to be able to do if he wer e to continue working as a firef ighte r. Acc ording ly
, in the absenc e of the DVD, we cannot find the descr ibed actions to be inconsistent with L amber t’s testimony

or to otherwise unde rmine his cre dibilit y

. ¶ 37 Finally
, the Boa rd found that L amber

t’s testimony that he had driven two h o u rs to the hear ing conflicte d with his testimony that he could not sit for long periods of time or operate a department vehicle. Ag ain, L am b er t n ev er testified that he could not sit. He also did not testify that he could not drive a vehicle. As noted above, there was a ref ere nce in the August 2010 FCE that L amber

t c ould not sit for a long period of time. The FCE also indicated that L amber t co u l d n o t d ri ve a vehicle for a long period of time. L amber t agree d with the conclusions of the FCE. Even if we were to find that L amber t’s tes t i m o n y conflicted with these parts of the FCE, howeve r, we believe t h at i t i s a small point in relation to the

overwhelming evidenc e that L amber t could not kneel, squat, cra wl, or use a ladder
, actions that wer e nec essar

y for him to do in order to wor k as a f irefighter. ¶ 38 The Boa

rd used its finding that L amber t w as not cre dible to disc ount a ll of the medica l evidenc e that indicated that L amber t was not able to continue to work as a firef ighte r. As in Roszak
, this deter

mination was err oneous. See Roszak
, 376 I ll. App. 3d at 144. The Boa rd’s doctors’ medical opinions and diag noses wer e supported by their phy sical examinations of L amber t. The doctors’ observations and diagnoses themselves c o n s ti tu te d o b je c ti v e e v ide nce of L amber

t’s pain. See Kouzoukas v. Retireme nt Board ofthe Policeme n’s Annuity & Bene fit Fund
, 234 I ll. 2d 446, 466 (2009). Acc ording ly
, the Boa rd’s decision to dismiss the objective finding s of i ts appointed doctors was ag ainst the m anif est weight of the evidence. Roszak
, 376 I ll. App. 3d at 144. ¶ 39 The underlying premise of the di ssent is t h at , o n ce the Board made a deter mination as
to L amber

t’s cre dibilit y , the Boa

rd s u cce ssfully preve nted this court from conducting any revie w of its decision. Howeve r, that is not t h e l aw of our state. See id. at 139; see also People v. Drwal
, 27 I ll. 2d 184, 188-89 (1963) (a conviction that i s b ased on the deter mination of the cre dibilit y of the witnesses will be set aside if nece ssary to pr event an appar ent injusti ce)

. Indeed, such a law would be contra ry to this court’s overr iding conce rn to ensure that justice be done. See McCloud v. Rodriguez
, 304 I ll. App. 3d 652, 658 (1999) (cour t’s duty is to ensure that justice is re ndere d to ever y party ). ¶ 40 The dissent is also based on the false premise that, if there is any evidenc e in the re cord that supports the Boa

rd’s decision, reg ardle ss of how minuscule, then the Boa rd’s decision
must be aff

irm ed

. Although there is case law that would seeming ly support the dissent’s premise (see Ellison
, 377 I ll. App. 3d at 440 ), a co m p l ete revie w of the applicable law

reve als that an ag ency ’s decision will none theless be reve rsed if it is implausible (see id. at 440-41). Thus, contra

ry to the dissent’s insistence, an ag ency ’s decision that is supported by

some evidenc e, but is ag ainst the manifest weight of the evidenc e, cannot stand. See Roszak
, 376 I ll. App. 3d at 144.

-11-¶ 41 In deter mining that the Boa

rd’s decision was ag ainst the manifest weight of the evidenc e,

we find the Boa

rd’s rel i an ce on People ex rel. Ulrich v. Board of Trustees of Firemen’ s Pension Fund
, 344 I ll. App. 210 (1951), to be improper. In Ulrich
, this court issued only an abstrac t opinion, which cannot be relied upon as prec edent. See Schusse v . Pace Suburban Bus Division of the Regional Transport ation Authority
, 334 I ll. App. 3d 960, 968 n.1 (2002). Fur ther, we note that the Boa

rd cites no other I llinois case wher e a board’ s decision to reje ct the vast majority of the medical evidenc e and deny disability benef its has not been found to be ag ainst the manifest we ight of the evidenc e. Our

rese arc h reve als instead that, in suc h a situation, our courts have consistently reve rsed the board’ s decision. See Kouzoukas
, 234 I ll. 2d at 467 (eve ry medical profe ssional who examined the plaintiff fou n d t h at s h e suffe red pain as a result of a lower back strain and that the pain, in turn, preve nted the plaintiff from
retu rn i n g to work as a full-duty police office r); Roszak
, 376 I ll. App. 3d at 135 (all three pension board- appointed phy sicians found that the plaintiff was disab led or incapa ble of perf orming his duties as a firef ighte r); Bowlin v. Murphysboro Firefighters P ension Board of Trustees
, 368 I ll. App. 3d 205, 212 (20 0 6 ) (p en s i o n board relied on only one doctor’s opinion over the opinions of five others); Thigpen v. Retireme nt Board of Firemen’ s Annuity & Bene fit Fund
, 317 I ll. App. 3d 1010, 1014-16 (2000) (only phy sician selec ted by the board found that the plaintiff could not return to firef ighting work); Sullivan v

. Retireme nt B oard of Firemen’

s Annuity & Bene

f i t Fund
, 267 I ll. App. 3d 965, 971 (1994) (one doctor who found the plaintiff was not disabled misstated evidenc e in rea ching that conclusion); Zien v. Retireme nt Board ofthe Firemen’ s Annuity & Bene

fit Fund
, 236 I ll. App. 3d 499, 511 (1992) (all of the medical personne l who had evaluated the plaintiff’s condition wer e in agree ment that the plaintiff’s disability was perma nent and would preve nt him from resuming his employ ment as a pa

rame dic). ¶ 42 We also reject t h e Bo ar d ’s ar gu ment that L amber t is asking this court to consider additional evidenc e that was not considere d by the Boa rd. All of the evidenc e that L amber t asks us to consider was available for the Boa rd’s consideration. This evidenc e was relied
upon by the Boa

rd-a ppointed doctors, all of whom deter mined that L amber

t was not phy sically able to continue working as a firef ighte r. L amber

t is essentially asking this court to consider the medical evidenc e to counter the Boa rd’s deter mination that he did not prese nt any cre dible evidenc e as to his phy sical disability

. Howeve r, as we have alre ady deter mined that the Boa

rd’s assessment of L amber t’s cre dibilit y (and hence the cre dibilit y of the doctors who relied on the information that L amber t provided them) was ag ainst the manifest weight of the e vidence , we ne ed not dwell on the medic al evidenc e fur ther. ¶ 43 Finally
, based on our resolution of L amber t’s first contention on appe al
, we need not consider his second contention, that the t rial court err ed in co n s i d er ing descriptions of t he surveillance rec ordingas demonstrative evidenc e. ¶ 44 For the fore g oing rea sons, the decisions of the c ircuit court of Du Pag e County and the Downer s Grove Fire Depa rtment Pension Boa

rd are reve rsed and the case is rema nded to the Boa rd with dir ections to enter an order g ranting the application for a line-of- duty disability pension and a

ny other re lief to which L amber t is entitl ed.

¶ 45 Reverse d and re manded.

-12-¶ 46 J USTI CE McLAREN, dissenting.

¶ 47 Conspicuously absent from the majority ’s analy sis of a case that rests almost e x clusively

on the issue of cre dibility is any standard of appellate revie w as rega rd s cr edibi lity

. Also missing from the m ajority opinion is any rea l an al y sis reg arding the i mport of t he mi ssing DVD. The failure to pr operly addre ss the se issues results in a judg ment from which I must dissent.

¶ 48 CREDI BI L I TY ¶ 49 The Boa

rd, as the finder of fac t responsible for overse eing testimony
, makes c redibility deter minations and assig ns weight to the testimony and other evidenc e; we do not weigh the

ev i dence or subs titute our j udg ment for that of t he Board. See Goodman v. Morto n Gr o ve Police Pensio n B o a r d
, 2 012 I L App (1st) 111480, ¶ 25. The trier of fac t, by virtue of its ability to a ctually observe the conduct and demea nor of witnesses, is in the best position to make cre dibilit y deter

minations. See In re Marriage of Berbere t , 2012 I L App (4th) 110749, ¶ 56. A cre d i b i l i t y d etermination by a pension board will often be dispositi ve. Mingus v. Board of Trustees of Police Pension Fund
, 2011 I L App (3d) 110098, ¶ 1 5

. I f t h e record contains evidenc e that supports an ag ency ’s decision, i t should be aff irmed. Payne v. Retireme nt Board of the Firemen’ s Annuity & Bene

fit Fund
, 2012 I L App (1st) 112435, ¶ 43. ¶ 50 The B oard made specific finding s as to c redibility
, and evidenc e in the rec ord supports the Boa rd’s questioning of L amber t’s cre dibilit y reg arding his claimed level of pain and his inability to perf

orm his job as a firef

ighte r beca

use of that pain. Whil e most of the FCEs did
not question L amber

t’s eff o rt du ring the evaluations, the November 2009 FCE noted that L amber t’s 83% consistency of eff ort/val i d i t y sug g ested that L amber t “pre sented with
seg mental inconsistencies during this e valuation resulting in mild self limit ing behavior s.” During the hearing
, Boa

rd President L azzara questioned L amber t about hi s “twisting back and forth on that rig ht knee” while L amber t claimed that he could not kneel or cra wl; though L amber t denied doing so, L azzara said that he had seen it. L amber t also testified that he had driven two hours to attend the September heari n g, wh ile the most rec ent FCE noted that L amber t could sit comforta

bly for only about 30 minutes at a time. In its finding s, the Boa rd 3 also stated that its revie w of the surveillance DVD showed L amber t “ walking up stairs and

car rying household objects with littl e trouble, activities that he has simult aneously testified that he has too much pa in to perfor m ( i.e. , sitti ng , climbing, liftingand jostling).” ¶ 51 We cannot substitut e our judgme nt for that of the Boa rd reg arding L amber

t’s cre dibilit y , nor can we ascr ibe weight to that lack of cre dibilit y any differ ently than did the Boa rd. Yet

Lambert ar gues tha t the re wer e no qu e s t i o n s add re ssi ng what type of vehicl e he dro ve, 3 whet her he too k bre aks dur ing the dri ve, a n d h o w lon g he dro ve at one si tt ing; thu s, “the Boar d dra ws a con cl usi on unsup por te d by evide nce bas ed upon con j ect ure andspe cul at ion th athe dro ve for two (2) hour s non-stop. ” However, suc h que st ion s cou ld have bee n asked by Lambert ’s cou nse l,

or Lambert cou ld have pro vided suc h ans wer s on his own when he was asked by t he Boar d abo ut the dri ve. T he con cl usi on tha t Lambert dro ve for two st ra ight hour s is not uns uppo rt ed by Lambert ’s
st at ement t hat he haddr iven a lmost t wo hou rs to get t o t he h ear ing th atday.

-13-the majority does just that, tossing in some fac tual inacc urac ies along the way , in o rder to

reve rse the B oard’ s decision. The ma jority believes that the matters upon which the Boa rd found that L amber

t lacke d cre dibilit y wer e “tang ential at best to the issues that wer e befor e the Boa rd” and that the Boa

rd “we nt on to discount all of the evidenc e based on its finding 4 that L amber

t was not cre dible.” Supra ¶ 29. To the Boa rd’s finding that i t “w i t n essed the phy sical position and demea nor of Fire fig hter L amber t throug hout the two public hear ings, findinghis testimony

reg ardinghis level of pain not cr edible,” the majority counter s: “We do not agree with the Boa rd’s appar ent logic that, beca use he could sit better than the most rec ent FCE indicated that he could, he nece ssarily could do ever y thing else (knee l, squat, cra

wl, cl imb, or car

ry ) better to the point that he was not disabled. Moreove r, even if L amber t was able to twist on his rig ht knee, it did not m ean that he could kneel, squat, cra

wl, climb, or car

ry heavy object s , al l t h i ng s that the medical examiners consistently

said that he c ould not do.” Supra ¶ 30. ¶ 52 L amber

t’s testi m o n y that he had taken Vicodin but was wea ned off the medication to
preve nt addiction (Mar ch 16) and that on some day s he would take up t o ei gh t Vicodin (September 7) are found not to be “inconsistent”; the majority finds t h at a “re asonable infere nce from his testimony is that he attempted to stop tak i n g Vicodin, but due to his continued pain, he had to kee p takingit.” Supra ¶ 32 n.1. Evidence in the Novembe r 2009 FCE that L amber

t g ave only 83% eff

ort is discounte d by

the majority , “to the extent that it questions L amber

t’s eff ort,” as “an anomaly .” Supra ¶ 32 n.2. The Boa rd found that L amber

t

was “stu ck i n t ra ffic for more than an hour, y et claimed an inability to sit long periods of time”; the majority depre ciates this by stating that the FCE finding that not ed L am b er t’s inability to sit for more than 30 minutes “wa s based on the examiners’ observa tions of what they believed he could do” and that “[t] here is no indi ca t i o n i n the FCE, howeve r, that L ambert self-r eporte d that he could not sit or drive for a prolong ed time.” Supra ¶ 30

. L amber t’s agree ment with the finding s contained in the FCE, including the inability to sit for

more than 30 minutes, is “one s m al l point,” acc ording to the majority

. Supra ¶ 31. The majority chastises the Boa rd for “par

tially ” rely

ing on languag e from the August 2010 FCE,
reg arding L amber

t lear ning to manag e pain, that was alleg edly taken “out of context” ( supra ¶ 33) but fails to acknow ledg e the other evidenc e upon which the Boa rd “par tially ” relied for this findin g. E v i d ence that L amber t did not rene w his para

medic cer

tification is termed “minor.” Supra ¶ 34. Whil e noting that L amb ert had testified that walking on stairs was “diffic ult and painful” ( supra ¶ 7), the majority dismiss es the Boa rd’s finding that the DVD showed L amber

t “ ‘wa lking up steps *** wi t h l i t t le trouble, *** [which] he has simult aneously testified that he has too much pain to perf orm’ ” ( supra ¶ 20), by noting that

T he m aj ori ty obt ai ned the phr ase “t angent ia l at bes t” fr om Rosz ak
, wher e the cou rt 4 add re sse d t h e boa rd’ s fi ndi ngs re gardi ng the cl ai m ant ’s cr edi bil it y ar is ing fr om “qu est ion s abo ut wher e he li ved, wher e he worked, what he earned
, and his cur re nt net wort h.” Rosz ak
, 376 I ll

. App. 3d at 140. T he Boar d her e que st ion ed Lambert ’s cr edi bil it y re gardi ng his le vel of pai n and ina bil it y to pe r f o r m his j ob, bas ed on his te st imony and his physic al pos it ion and demeanor dur ing the hea ri ng. T hes e ar e har dly the “t angent ia l” is sue s add re sse d in Rosz ak
, and the app li c a t i o n o f tha t phr ase to th is ca se is in app rop ri at e a nd i nac cur at e.

-14-the Boa rd “made no finding as to whether L amber t appea red to be in pain” and “did not question L amber

t whether he was on pain medication at the time the surveillance video was taken.” Supra ¶ 36. Every Boa rd fi nding is weighed; ever y conclusion is dissected; ever y basis that supports the Boa rd’s decision is minimi zed. What is any of this other than a naked attempt to discount evidenc e that supports the Boa rd’s decision, rew eig h the evidenc e, and substitut e the majority ’s judg ment for that of the B oard? ¶ 53 The majority ’s rew eig hing of the evidenc e is also pepper ed with inacc urac ies reg arding the evidenc e actua lly in the rec ord with the injection of its own rea lities. The majority states: “Specif ically
, the Boa

rd found that L amber

t’s testimony reg arding his level of pain was not

cre dible based on his appar ent abil ity to sit without pain.” Supra ¶ 30. Howeve r, Boa rd finding No. 34 states that the fi n d i n g that L amber t’s testimony reg arding his level of pain

was not cre dible was based on L amber t’s “phy sical position and demea nor *** throug hout the two public hear ings.” No mention of L am b ert’s sitti ng is made until finding No. 39, which deals with L amber t’s “being stuck in traff

ic for m o re t h an o n e hour” in his SUV despite a claimed “inability to sit long periods of time or operate/drive depar tment vehicles.” The majority also bring s up L azzara’s conver sation with L amber t r eg arding the twisting of his knee in the s upposed contex t of hi s not being able to sit (“We note that L amber t never testified t hat he could not sit.” Supra ¶ 30). How ever , Inote that L azzara did not raise this question in the context of L amber t’s ability to sit: “ ‘[BO ARD] P RESI DENT LAZ Z ARA: Help me with this one, because you just sai d y o u ca n’t kneel, y ou can’ t cra wl, but y et y ou have been sitti ng in that chair twisting back and forth on that rig ht knee. Help me.’ ” Supra ¶ 17.

¶ 54 MI SSI NG DVD ¶ 55 L amber

t provided this court with a rec ord that failed to include the DVD of surveillance video taken on August 24, 2010. The majority simil arly fails to provide a logic al analy sis of the implications of the missing DVD. The appellant bear s the burden of p re s en t i ng a sufficie ntly complete rec ord. In re Marriage of Holtorf
, 397 I ll. Ap p

. 3d 805, 811 (2010). Whil e acknow ledg ing that any doubts arising from the incompleteness of the rec ord is to be resolved ag ainst the appellant ( supra ¶ 35), the majority proce eds not only to fail to resolve doubts from the incompleteness of the rec ord ag ainst L amber t but to resolve such doubts
ag ainst the Boa

rd, the appellee

. Be cause the majority fails t o p ro p erly apply these basic tenets of a

ppellate r eview, the majority ’s discussion of the DVD evidenc e cr umbles. ¶ 56 The majority is corr ect that it was the Boa rd’s burden to prese nt the court of revie w with the entire rec ord of proce eding s , i n cludi ng the evidenc e it considere d. See supra ¶ 35. Howeve r, I must point out cer tain flaws in the majority ’s descr iption of the Boa rd’s burden. The burden t o include the DVD in th e record exi sted not only
, as t he majority states, “if it [(the Boa rd) ] wi s h ed to rely on it to support its finding s.” Supra ¶ 35. An administrative
ag ency does not g et to pick and choose which evidenc e to include; can it leave out portions of the rec ord that it wishes to ignor e? Fur ther, the Boa

rd was not require d to “introduce the DVD into the rec ord at the trial court.” Supra ¶ 35. The DVD was introduced into evidenc e at t h e ad minist rative hear ing. The Boa rd was require d to include the DVD as part of “the entire rec ord of proce eding s under revie w, including such evidenc e as may have been hear d

-15-by

it and the finding s and dec isions made by it.” 735 I L CS 5/ 3-108 (West 2010). ¶ 57 The majority continues that, since the DVD did not become part of the rec ord on appea l, “the missing DVD should not be held ag ainst L amber t, who never had it in his control or possession.” Supra ¶ 3 5

. Ho we v er , L amber t forf eited the issue of t he mi ssing DVD at the administrative revie w in the trial court. L amber t filed (and the trial court g rante d) an ag ree d motion to amend the administrative rec ord, in which he soug ht to include in the rec ord two missing pag es of medical repor ts (one of which “has not been located” ); the “addition of these pag es will g ive the Court a f u ll and complete record .” (Emphasis added.) Thus, not only did L amber

t not object in th e t ri al court that the rec ord was incomplete without the DVD; when he was g rante d the opportunity to amend the rec ord with evidenc e that had been left out, he chose not to seek the inclusion of the DVD. Acc ording to L amber t, the rec ord was “full and complete” even in the absence of the DVD. A ppare ntly , the abse nce of the DVD did not preve nt the trial court from considering the full an d co m p lete rec ord of the administrative hear ing, as L amber t addre ssed the alleg ed contents of the DVD in his written briefs a nd his oral ar guments to the trial court. 5 ¶ 58 The Boa

rd was obligated to p ro vide to the trial court the entire rec ord of proc eeding s under revie w. It failed to do so. L amber t was obligated to object in the t ri al co u rt t o an incomplete rec ord; howeve r, he and the Boa rd agree d that the inclusion of missing pag es

cre ated a full and complete rec ord for the t rial court. I ssues not raised in the trial court are deeme d forf

eited and may not be raised for the first time on appea l. Martinez v. River Park Place, LLC
, 2012 I L App (1st) 111478, ¶ 29. L amber t was obligated, as appellant, to prese nt this court with an adequate rec ord on appea l. Holtorf , 397 I ll. App. 3d at 811. He f ailed to do so. Under long- establi shed prec edent ( Foutch was decide d in 1984), this court should resolve any doubts arising from the incompleteness of the rec ord ag ainst L amber t. The majority has fa iled to do so. ¶ 59 The majority cry ptically asser

ts that it cannot presume in the Boa rd’s favor that whateve r

was on the DVD wa s “suff icient to support its cre dibilit y finding s,” particula rly beca use 6 “counse l for the Boa

rd repr esente d at oral argument that ‘any part of the video that was relied

on is in the transcript of the hearing before the Pension Board .’ ” (Emphasis added.) Supra ¶ 36. The majority attempts to support this conclusion by citing to Banks
, 378 I ll. App. 3d
at 865-66, for the proposition that the “abse nce of videotape fro m rec ord did not rende r

rec ord i ncomplete where videotape did not include any evide nce not already appearing in the rec ord .” (Empha sis added.) Supra ¶ 36. Howeve r, t he majority then fails to cite to any descr iption of the contents of the DVD contained in the transcr ipt of the hear ing befor e the Boa rd or to any other evidenc e reg arding those contents. This is understanda ble, as there was

no transcr ipt from the hearing befor e the Boa rd or any other evidenc e reg arding what was

Acco rdi ng to cou nse l, Lambert was sho wn “r idi ng ar ound on a si tt ing la wn m ower hol din g 5 his kid an d oc cas ion al ly doi ng a li tt le wal king.”

Im ust al so p oin t o ut tha t “ what ever wa s on the DV D” was not th e on ly eviden ce tha t t he 6 Boar d re li ed on in m aking it s cr edi bil it y f i n d i ngs; thu s, the con te nts of the DV D nee d not be “su ff ic ie nt, ” on th ei r o wn, t o suppor t t he Bo ar d’s cr edi bil it y find ings.

-16-shown on the DVD. Instead, the majority quotes from the Board’s finding (No. 38) reg arding the DVD’ s contents. See supra ¶ 36 (“I n its findings
, the Boa

rd stated that the DVD showed L amber t ‘in h i s yard walking up steps and car rying household objects with littl e trouble,

ac t i v i t i es that he has simult aneously testified that he has too much pain to perf orm ( i.e.
, sitti ng , climbing, lifting and jostli ng .’ ”). (Emphasis added.) The majority does not e x plain how or why it can equate alleg ed on -t h e- rec ord testimony or other evidenc e reg arding the DVD contents with the Boa rd’s l at er fi nding; it mere ly makes the leap. In essenc e, the majority attempts to disc redit the Boa rd’s finding reg arding the surveillance DVD with the Boa rd’s finding

reg ardingthe surveillanc e DVD

. ¶ 60 Fu rt h er , the majority ’s relianc e on Banks is misguided and flawe d. The defe n d an t i n Banks argued that the loss of the videotape of his traff ic stop “alone
, with no other showing
, rende rs t h e rec ord incomplete for meaning ful revie w on appea l and entitles him to a new trial.” Banks
, 378 I ll. App. 3d at 865. This court disag ree d, finding that the defe ndant had not sustained his burden of demonstrating that he was not at fault for failing to prese rve the tape and that the tape was materia l to his contentions on appea l. Id. at 870. We found t h at the defe ndant failed to “ar

ticulate what the vi deotape would show” a nd failed “to sug g est that the videotape was exculpatory or contra dictory of any other evidenc e prese nted at trial” such that he failed to demonstrate a colorable need for the videotape. Id. at 866. There fore
, we addre ssed the issues on appea l and affirmed the trial court. Her e, L amber t does not argue that the missing DVD preve nts this court from g iving a m ea n i n gfu l revie w on appea l, and
appar ently the majority agree s. In fac t, the majority not only analy zes the content of the DVD without the benef

it of actua lly seeing the DVD or any other actua l evidenc e of what the DVD shows, but actua lly draw s from the nonexis tent evidenc e infere nces in favor of L am

b e rt (who failed to sustain his burden of providing a complete rec ord on appea l) on the iss u e o f credibility in order to reve rse the decision b el o w. The majority corr upts the l ong -standing and well-e stablished rule from Foutch and stands the rule on its head; instead of presuming support for the judgme nt due to an incomplete rec ord, the majority does exactly the opposite. Fur ther, the maj ority g oes further than even the defe ndant in Banks
, who argued that the

reme dy for the missing videotape was a new tr i al
, not a finding of not guilty

. Her e, the majority does not mere ly vaca te the trial court’s judgme nt and rema nd the ca s e so that a sufficie nt rec ord might be assembled and actua lly revie wed in the trial court; in s t ead, it outrig ht r ever ses the Boa

rd’s de cision and orde rs the g ranting of L amber t’s application for a line-of -duty disability pension. ¶ 61 L amber

t complains in his brief that the trial court “neve r actua lly viewed the video, but ruled it a valid basis for the Boa rd’s decision.” The majority here commits the same err or of using nonexis tent “evide nce” to support i t s ru l i n g but compounds the err or by using it to

reve rse the decision below. L est we forg et, it is not the function of this court to sco u r the

rec ord to find a rea son for reve rsal. In re G.W

. , 357 I ll. App. 3d 1058, 1061 (2005). I t is even less so the function of this cour t to searc h outside the re cord f or a r eason to re verse

. ¶ 62 J ournalist Ron Suskind quoted an unnamed aide to President Georg e W. Bush as say ing, “ ‘whe n we act, we cre ate our own rea lit y .’ ” Ron Suskind, Faith, Certainty and the Presidenc y of George W

. Bush
, N.Y. Times Mag azine (Oc t. 17, 2004). The majority here

cre ates no less.

-17-