NO. 4-05-0943 Filed: 9/7/06 

 IN THE APPELLATE COURT 

 OF ILLINOIS 

 FOURTH DISTRICT 

ERIC McKEE, ) Appeal from 

Plaintiff-Appellant, ) Circuit Court of 

v. ) Champaign County 

THE BOARD OF TRUSTEES OF THE CHAMPAIGN ) No. 03MR392 

POLICE PENSION FUND, an Illinois ) 

Administrative Agency; and WILLIAM ) 

NEUMANN, MARK MEDLYN, DONALD ATKINS, ) 

RICHARD SCHNUER, and VAN DUKEMAN, ) 

Individually and as Members of the ) 

Board of Trustees of the Champaign ) Honorable 

Police Pension Fund, ) John R. Kennedy, 

Defendants-Appellees. ) Judge Presiding. _________________________________________________________________ 

JUSTICE COOK delivered the opinion of the court: 

Plaintiff, Eric McKee, a Champaign police officer, 

filed an application for disability benefits with the Board of 

Trustees of the Champaign Police Pension Board (Board). On May 

21, 2003, the Board denied his application. Plaintiff filed a 

complaint for administrative review. The circuit court affirmed 

the Board's decision on October 13, 2005. Plaintiff appeals. We 

affirm. 

 I. BACKGROUND 

At approximately 9:30 p.m. on September 15, 1998, 

plaintiff and other officers attempted to place a combative 

suspect in the rear of a squad car. Plaintiff testified that the 

morning of September 16 he woke up with severe back pain but did 

not associate the pain with picking up the suspect the night 

before. He called in sick for his shift that was to begin at 3 

p.m. He called Dr. Robert Healy's office but was unable to get 
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an appointment until September 18. 

On September 18, plaintiff saw K. Smitlyn, the nursepractitioner at Dr. Healy's office. Smitlyn's notes state, "No 

known injury, but he did lift a man into his patrol car 2 days 

prior--no pain at that time. Played golf the next day and felt 

fine til he woke up the following day." Plaintiff testified he 

did not play golf September 16 and did not tell Smitlyn that he 

had; when Smitlyn asked about his exercise and recreational 

activities, plaintiff told her he played golf and was a scuba 

diver. Smitlyn wrote a note excusing plaintiff from work until 

September 21 and told him to take ibuprofen and call if he was 

not better in two weeks. On November 5, plaintiff saw Healy. On 

November 11, plaintiff underwent magnetic resonance imaging 

(MRI). The MRI indicated a bulging disc and a problem with the 

exiting nerve root. Plaintiff thereafter began to work light 

duty; in February 1999, he stopped working for the police department entirely. 

On November 6, 1998, plaintiff filed a duty-injury 

report, stating he injured his lower back carrying the suspect on 

September 15 but did not realize he had hurt himself until the 

morning of September 16. He wrote that he had not filed a dutyinjury report at that time because he believed the injury would 

heal after a few days. On April 23, 1999, plaintiff filed an 

application for disability benefits with the Board. 

From November 1998 through August 2000, plaintiff saw 

nine physicians and two chiropractors. On December 2, 1998, Dr. 
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James J. Harms diagnosed a herniated disc at L4-L5 and saw "a 

little premature degenerative disc disease." Harms indicated 

most people start improving within 6 to 12 weeks and recommended 

temporary measures to help plaintiff's pain. On March 28 or 29, 

1999, Harms again saw plaintiff. He wrote plaintiff was getting 

better but signed a certificate of disability at that time. 

Harms saw plaintiff in June 1999, after plaintiff underwent an 

epidural steroid injection. Harms wrote that if another injection did not help, plaintiff was a good candidate for surgery. 

Plaintiff underwent a second epidural injection in August 1999, 

which he reported aggravated his pain. On April 28, 2000, Harms 

wrote he could not tell how disabling plaintiff's injuries were; 

80% of people with the condition get over it in a few months, but 

sometimes it takes longer. 

At the request of the workers' compensation administrator, plaintiff saw Dr. Patrick A. Hogan on January 27, 1999. 

Hogan noted the MRI revealed a small disc herniation at L4-L5 on 

the left but concluded that "some occurrence regarding his golf 

or something that might have happened during the night" produced 

the disc herniation "since he was asymptomatic for 48 or more 

hours from the lifting incident." In a May 23, 2000, report, 

Hogan noted plaintiff had indicated the suggestion he had played 

golf was incorrect. 

Dr. M.R. Carlson saw plaintiff on April 8, 1999, and 

reported a "possible annular ligament tear/possible small disc 

herniation" resulting in temporary disability. Carlson also 
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signed a certificate of disability. 

Plaintiff saw Dr. Lawrence Leventhal on April 12, 1999. 

Leventhal reviewed the November 1998 MRI and diagnosed a bulging 

disc at L4-L5 on the left. He wrote, "It is medically probable 

that the injury on September 15, 1998, caused an annular tear to 

the disc at the L4-[L]5 level ***." "Based on [plaintiff's] 

history," Leventhal believed his current disability was a result 

of his employment. On August 16, 2000, Leventhal examined 

plaintiff and completed a physician's certificate certifying 

plaintiff was disabled for service in the police department. 

Leventhal stated the herniated disc could be treated surgically 

and there was a 75% to 80% chance plaintiff could return to duty 

after six months of rehabilitation, although no guarantees could 

be made. 

Plaintiff was requested to see Dr. John Gragnani on 

April 18, 2000. Gragnani wrote plaintiff did not "show signs, 

either clinically or radiographically, of any particular changes 

that would explain the severe degree of pain he is reporting." 

Gragnini read Dr. Hogan's report and commented that plaintiff had 

not mentioned playing golf the morning after trying to lift the 

suspect into the patrol car. Gragnini recommended a second MRI 

and, after reviewing it, wrote there was nothing that would 

explain plaintiff's pain complaints and "[n]o residual impairments or disabilities would be expected as a result of the injury 

of 9/15/98." 

On April 24, 2000, the Board's attorney, Charles H. 
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Atwell, Jr., wrote plaintiff's attorney, stating that the Board 

had designated Leventhal, Harms, Carlson, and Hogan as the 

selected physicians. See 40 ILCS 5/3-115 (West 1998). On 

November 14, 2001, Atwell wrote that Carlson had retired but the 

remaining three physicians had provided medical reports. Atwell 

noted that Harms had indicated that plaintiff should be referred 

to an occupational-medicine specialist, and as that was 

Gragnini's specialty, Atwell suggested that Gragnani be designated as a selected physician, along with Harms, Hogan, and 

Leventhal. 

On May 30, 2000, plaintiff saw Dr. Michael L. Gernant, 

who diagnosed low-back pain with a herniated disc and nerve-root 

compression. He wrote, "At this point, I don't think [plaintiff] 

is able to perform his duties as a police officer *** concerning 

the injury he sustained on 9/15/98." 

 II. THE BOARD'S DECISION 

On May 21, 2003, the Board entered an order and decision denying plaintiff's request for disability benefits. Four 

members of the Board voted to deny benefits and one member 

abstained. The Board concluded plaintiff was not disabled, 

noting it "accords great weight" to Hogan and Gragnini's "detailed opinions." As an independent reason for denying plaintiff's claim, the Board also cited section 3-115 of the Pension 

Code (40 ILCS 5/3-115 (West 1998)), which requires that three 

physicians the Board selects must certify an applicant is, in 

fact, disabled. The Board found that of the four physicians it 
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selected, Harms, Hogan, Leventhal, and Gragnini, only Leventhal 

and Harms suggested plaintiff was unable to perform his job as a 

police officer. 

In an alternative holding, the Board stated that even 

if plaintiff had proved he is disabled, he did not establish the 

incident on September 15, 1998, was the cause of his alleged 

disability. The Board further noted plaintiff had made no 

request in the alternative for a nonduty-disability pension 

benefit. 

The Board also remarked that plaintiff "continues to 

disdain any surgery which has been recommended by Dr. Leventhal 

and Dr. Gernant, who have both expressed a likelihood of 80-85% 

success rate, with the ultimate result to return to full service 

as a police officer." While the Board denied it considered 

plaintiff's decision to forego surgery in coming to its decision, 

it noted that "even the two physicians who have expressed their 

opinions that [plaintiff] is disabled from performing full 

service have stated that there is a high probability that minor 

surgery could relieve [p]laintiff of his alleged discomfort." 

Plaintiff filed a complaint for administrative review, 

and the circuit court affirmed. This appeal followed. 

 III. ANALYSIS 

 A. Standard of Review 

Judicial review of the decision of the Board is governed by the Administrative Review Law. 735 ILCS 5/3-101 through 

3-113 (West 2002). The factual findings of the administrative 
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agency are considered to be prima facie correct (735 ILCS 5/3-110 

(West 2002)) and will be reversed only if against the manifest 

weight of the evidence. Questions of law are reviewed de novo. 

Marconi v. Chicago Heights Police Pension Board, 361 Ill. App. 3d 

1, 16, 836 N.E.2d 705, 719 (2005). A mixed question of law and 

fact, however, is not reviewed de novo, but under the clearly 

erroneous standard. The clearly-erroneous standard of review is 

"between a manifest[-]weight[-]of[-]the[-]evidence standard and a 

de novo standard so as to provide some deference to the 

[agency's] experience and expertise." City of Belvidere v. 

Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 

N.E.2d 295, 302 (1998). 

 B. Section 3-115 

Plaintiff argues that section 3-115 of the Pension Code 

has not been complied with in this case. Section 3-115 provides: 

"A disability pension shall not be paid 

unless there is filed with the board certificates of the police officer's disability, 

subscribed and sworn to by the police officer 

if not under legal disability *** and by the 

police surgeon (if there be one) and 3 practicing physicians selected by the board. The 

board may require other evidence of disability." 

40 ILCS 5/3-115 (West 1998). 

The certification requirement is an antifraud provision and 

serves the legitimate legislative goal of ensuring the integrity 
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of the pension fund. Trettenero v. Police Pension Fund of the 

City of Aurora, 333 Ill. App. 3d 792, 799, 776 N.E.2d 840, 847 

(2002). 

Plaintiff argues that, as a matter of law, the Board 

was required to find him disabled because three Board-selected 

physicians, Leventhal, Harms, and Carlson, signed certificates of 

disability. In response, the Board argues that Carlson had been 

replaced and that plaintiff's claim must accordingly be denied 

because only two physicians had certified that plaintiff was 

disabled. That argument was an alternative to the Board's 

primary finding that plaintiff was not disabled. Plaintiff also 

argues that Hogan and Gragani, who examined him at the request of 

the city's workers' compensation management company, were not 

Board-selected physicians because he never stipulated that they 

were and because they did not sign certificates of disability. 

Plaintiff also argues, for the first time on appeal, that the 

Board's rules provide for the selection of only three physicians. 

 He supplemented the administrative record with the Board's 

rules, which state that the Board "shall designate up to three 

(3) physicians" to examine the applicant. 

If section 3-115 were interpreted to require that the 

Board's three selected physicians unanimously declare an applicant disabled, one physician's opinion that an applicant was not 

disabled would ipso facto defeat a pension claim, thus rendering 

section 3-115 a virtual summary-dismissal provision. Coyne v. 

Milan Police Pension Board, 347 Ill. App. 3d 713, 729, 807 N.E.2d 
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1276, 1289 (2004). (A similar concern arises if section 3-115 is 

interpreted to mean that the mere existence of three certificates 

of disability automatically deems an applicant disabled, regardless of what other medical and nonmedical evidence reveals.) 

"A pension board would have no use for an 

evidentiary hearing in such cases because, 

regardless of the weight of the claimant's 

evidence, and regardless of any credibility 

issues pertaining to the lone dissenting 

physician, the outcome of the case would be 

predetermined by the mere existence of a disagreement between witnesses." Coyne, 347 

Ill. App. 3d at 729, 807 N.E.2d at 1289. 

The Third District, in Coyne, found the board's summary dismissal 

for lack of three certificates to be unconstitutional and reversed and remanded the board's denial of benefits, agreeing with 

the circuit court that section 3-115 only required three medical 

certificates "addressing" the applicant's disability status. 

Coyne, 347 Ill. App. 3d at 727-28, 807 N.E.2d at 1288. The Third 

District disagreed with Justice Schmidt's dissenting opinion that 

the board could simply appoint a fourth physician to get the 

necessary three certificates. Coyne, 347 Ill. App. 3d at 729, 

807 N.E.2d at 1289. 

The Second District, following remand from the supreme 

court, has found a board's determination that an applicant was 

not disabled to be against the manifest weight of the evidence 
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but nevertheless affirmed the denial of benefits because the 

board did not receive three certificates of disability. The 

Second District agreed with Justice Schmidt's dissent. Under the 

clear language of section 3-115, three physicians selected by the 

board must furnish certification that the applicant has a disability preventing him from performing any assigned duty or 

duties in the police service. Wade v. City of North Chicago 

Police Pension Board, 359 Ill. App. 3d 224, 236, 833 N.E.2d 427, 

437 (2005). Nothing in the statute, however, precludes the board 

from appointing additional physicians to examine the applicant in 

an effort to secure the necessary three certificates. Wade, 359 

Ill. App. 3d at 236, 833 N.E.2d at 438. 

The First District disagreed with both the Coyne

majority and with Justice Schmidt's dissent. Under Coyne, "the 

certification requirement is reduced to a mere empty formality--

even three certificates stating that an applicant is not disabled 

would satisfy the statute." (Emphasis in original.) Marconi, 

361 Ill. App. 3d at 23, 836 N.E.2d at 725. Justice Schmidt's 

suggestion that additional physicians be appointed, however, was 

viewed by the First District as too extensive a legislative 

revision. "Such attempted judicial interpolations would be in 

open contravention to the express language of the statute." 

Marconi, 361 Ill. App. 3d at 29, 836 N.E.2d at 729. In Marconi, 

two of the three board-selected physicians certified the plaintiff was disabled, as did a fourth physician, who was not selected by the board. However, because the board's finding of 
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fact that the plaintiff was not disabled was clearly erroneous, 

the First District reversed the board's ruling, even though only 

two of the selected physicians had filed a certificate of disability. 

We agree with previous decisions that an applicant 

cannot be awarded disability benefits unless three physicians 

have filed a certificate of disability. Daily v. Board of 

Trustees of the Police Pension Fund of Springfield, Illinois, 251 

Ill. App. 3d 119, 126-27, 621 N.E.2d 986, 991 (1993). The three 

certificates are a precondition to the case going forward, and in 

a simple case, may provide an adequate basis for granting (or 

denying) a claim. If three certificates cannot be obtained, the 

claim may be summarily dismissed. Three certificates from boardselected physicians were obtained in this case, despite the fact 

that Carlson had retired. The presence of three certificates, 

however, is not dispositive. "The board may require other 

evidence of disability" in addition to the three certificates. 

40 ILCS 5/3-115 (West 1998). Factual disputes cannot be resolved 

by the mechanical counting of certificates but must depend on 

findings made by the board. See Turcol v. Pension Board of 

Trustees of the Matteson Police Pension Fund, 214 Ill. 2d 521, 

828 N.E.2d 277 (2005) (dismissing appeal and remanding for 

appellate court to consider whether board's denial of benefits 

may be confirmed on the ground that plaintiff failed to prove his 

disability); Wade v. City of North Chicago Police Pension Board, 

215 Ill. 2d 620, 828 N.E.2d 282 (2005) (same). 
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Unanimity among the three physicians selected by the 

board is not required. The Board may, in an appropriate case, 

select additional physicians who may file certificates. We do 

not read section 3-115 to prohibit the Board's selection of more 

than three physicians to sign certificates, particularly in light 

of the language, "[t]he board may require other evidence of 

disability" in addition to the three certificates. 40 ILCS 5/3-

115 (West 1998). Section 3-115 does not contain any formal 

procedure for the Board's selection of physicians. Selection is 

left to the Board's discretion, but that discretion may be abused 

where the Board chooses "to preselect those doctors whose negative position on the issue of disability has been firmly established." Marconi, 361 Ill. App. 3d at 27, 836 N.E.2d at 727. 

There is no indication the Board's discretion was abused in this 

case. Harms, Carlson, and Leventhal were initially chosen by 

plaintiff and presented his point of view. Hogan and Gragnini 

appear to be well-qualified physicians, practicing in the particular field. 

Certificates of the police officer's disability, 

subscribed and sworn to by three practicing physicians, are 

necessary before a disability pension is paid, but there is no 

such requirement if the pension is not paid. Rizzo v. Board of 

Trustees of the Village of Evergreen Park Police Pension Fund, 

338 Ill. App. 3d 490, 494-95, 788 N.E.2d 1196, 1200 (2003); 

Daily, 251 Ill. App. 3d at 127, 621 N.E.2d at 991. A physician 

who testifies that a police officer is not disabled cannot be 
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expected to sign a certificate of disability. 

In this case, the physician's certificates reveal only 

a part of the picture. Of the five physicians who were, at one 

time or another, designated as Board-selected, two flatly stated 

that plaintiff was not disabled. Two others, Carlson and Harms, 

certified that plaintiff was disabled, but their accompanying 

records indicate they believed plaintiff's injury was not severe. 

 Viewing the totality of the evidence before the Board, we cannot 

say that its determination that plaintiff was not disabled is 

against the manifest weight of the evidence. The Board was not 

required to find plaintiff disabled simply because three physicians certified that he was. 

 C. Other Arguments 

Plaintiff argues the Board improperly refused to 

consider a nonduty-disability pension. The Board, however, 

concluded that plaintiff did not prove the existence of a physical or mental disability rendering his retirement necessary. 

Even if plaintiff had specifically requested a nonduty-disability 

pension in the alternative, the Board could not have granted one. 

 The fact that the Board noted plaintiff had not requested a nonduty-disability pension is of no significance here. 

Plaintiff claims he was denied due process when the 

Board conducted deliberations in a closed session in contravention of the Illinois Open Meetings Act (Act) (5 ILCS 120/2 (West 

2004)) and the Board's own rules and regulations. One of the 

exceptions to the Act allows the consideration of: 
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"(4) Evidence or testimony presented 

in open hearing, or in closed hearing where 

specifically authorized by law, to a quasiadjudicative body, as defined in this Act, 

provided that the body prepares and makes 

available for public inspection a written 

decision setting forth its determinative 

reasoning." 5 ILCS 120/2(c)(4) (West 2004). 

It would have been better if the Board had explicitly referred to 

 this specific subsection, but generally calling attention to the 

exception was sufficient. Henry v. Anderson, 356 Ill. App. 3d 

952, 955, 827 N.E.2d 522, 524 (2005). The Board's rules and 

regulations provide that, on motion, the Board may go to closed 

session pursuant to an exception set forth under the Act. The 

Board, therefore, did not violate its own rules and regulations 

by holding a closed meeting. 

Plaintiff claims he was denied due process because 

Atwell, the Board's attorney, acted as a hearing officer and a 

prosecutor, attended the closed session, participated in the 

Board's deliberations, and prepared the decision and order for 

the Board's members signatures, citing Thurow v. Police Pension 

Board of the Village of Fox Lake, 180 Ill. App. 3d 683, 536 

N.E.2d 155 (1989). The Board's attorney here cross-examined 

witnesses and made objections, but there is no evidence that he 

played a role in determining the outcome of the application or 

that plaintiff was otherwise denied a fair hearing. 
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Finally, plaintiff challenges the Board's reference to 

his decision to forego surgery. Here, plaintiff's decision to 

forego back surgery was not unreasonable. There was no evidence 

that the surgery would be "minor." Leventhal gave a 75% to 80% 

success rate but added that plaintiff would have to endure six 

months of rehabilitation "with no guarantees." Even so, the 

Board specifically stated that it did not take plaintiff's 

decision not to undergo surgery into consideration in making its 

determination. 

 IV. CONCLUSION 

For the reasons stated, we affirm the trial court's 

judgment. 

Affirmed. 

STEIGMANN and McCULLOUGH, JJ., concur.