Wade v. City of North Chicago Police Pension Board

Docket No. 101265.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

LAWRENCE WADE, Appellant, v. THE CITY OF NORTH

CHICAGO POLICE PENSION BOARD, Appellee.

Opinion filed November 1, 2007.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,

and Burke concurred in the judgment and opinion.

Justice Kilbride took no part in the decision.

OPINION

Plaintiff, Lawrence Wade, filed an application for a disability

pension with defendant, the City of North Chicago Police Pension

Board (Board). At the commencement of plaintiff’s hearing before the

Board, plaintiff’s counsel requested limited consideration for a “duty-

related disability pension” only, pursuant to section 3–114.1 of the

Illinois Pension Code (Code) (40 ILCS 5/3–114.1 (West 2002)).

Following a hearing, the Board denied plaintiff a line-of-duty disability

pension on three independent bases, concluding that plaintiff “did not

incur a disability from the performance of an act of duty,” his

“condition does not render it necessary for his suspension or

retirement from police service,” and “three doctors selected by the

pension board did not certify the Applicant as disabled,” after

conducting examinations of plaintiff pursuant to section 3–115 of the

Code (40 ILCS 5/3–115 (West 2002)). Plaintiff thereafter filed an

action for administrative review in the circuit court of Lake County,

and the circuit court ultimately confirmed the Board’s decision.

Plaintiff then appealed to the appellate court, arguing that (1) the

Board had denied him a fair and impartial hearing because it had relied

solely on the medical report of one physician (Dr. James Milgram) in

denying him a disability pension; (2) the Board’s decision was

contrary to the manifest weight of the evidence; and (3) the Board

improperly interpreted section 3–115 of the Code to mandate that all

three examining physicians selected by the Board certify the applicant

disabled as a prerequisite to a disability award. The appellate court

initially found that the Board had correctly interpreted section 3–115

and had properly denied plaintiff’s application for disability pension

benefits on that basis alone. Thus, the appellate court did not reach the

other issues raised by plaintiff.

Plaintiff thereafter petitioned this court for leave to appeal. In

conjunction with a denial of leave to appeal, we issued a supervisory

order, directing the appellate court to vacate its judgment in Wade v.

City of North Chicago Police Pension Board, 353 Ill. App. 3d 852

(2004), and remanding to that court, in light of Turcol v. Pension

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

(2005), “to resolve the issue of whether the Board’s determination

that plaintiff had not proven his disability was against the manifest

weight of the evidence.” See Wade v. City of North Chicago Police

Pension Board, 215 Ill. 2d 620 (2005) (supervisory order). On

remand, the appellate court found that the Board’s determination was

indeed against the manifest weight of the evidence; however, the

appellate court adhered to its earlier interpretation of section 3–115,

and again upheld the denial of disability benefits on that basis. 359 Ill.

App. 3d 224. We granted plaintiff’s petition for leave to appeal. 210

Ill. 2d R. 315(a).

If the appellate court is correct in holding that the Board’s

determination is against the manifest weight of the evidence, then the

question of section 3–115’s proper interpretation is squarely before

us; if the appellate court is incorrect, we need not address the

interpretational issue. Therefore, we first consider whether the

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Board’s decision on disability was in fact against the manifest weight

of the evidence. To that end, we set forth a summary of the evidence

bearing upon that issue, consisting of plaintiff’s testimony before the

Board, his medical records, and the reports of examining physicians

selected by the Board.

Plaintiff testified he was working “full duty” as a patrolman for the

City of North Chicago on April 20, 2002, when he responded to the

scene of an arrest to assist other officers in transporting an arrestee.

As plaintiff was bringing the handcuffed prisoner from the scene of the

arrest and down a steep, rocky embankment, the prisoner stumbled

and began to fall. Plaintiff tried to keep the arrestee from falling, the

two became entangled, and both “tumbled” to the bottom of the hill.

Plaintiff testified when he stood up he felt pain in his right knee

immediately. When he got back to the police station, he noticed, in

addition to the pain, “some slight bruising” of the knee and swelling.

From the police station, he was taken to the hospital, where an X-ray

was taken, an immobilizer was applied to his leg, and he was given

crutches.

Plaintiff was subsequently seen by Dr. Christ Pavlatos, who

ordered magnetic resonance imaging (MRI) of plaintiff’s knee.

According to plaintiff, Pavlatos later told him the MRI had revealed

two tears of the “inner and outer portion” of the right knee and,

consequently, surgery would be required. Surgery was in fact

performed, and plaintiff thereafter underwent eight weeks of physical

therapy. Plaintiff recalled that, at some point during his postoperative

recovery, “[t]here was some swelling and some fluid built up on the

knee again.” In response, his doctor drained fluid from the knee and

on two occasions administered cortizone injections. Plaintiff testified

that, after his May 2002 knee surgery, he worked in a sedentary

capacity for the City of North Chicago until February of 2003.

Plaintiff stated: “At that point I had my knee drained for the second

time, another 25 CCs of fluid was taken out and two more injections.

And at that point my doctor said, ‘This knee is just not responding and

you’re just not able to work,’ period.” Plaintiff never returned to “full

duty” as a patrolman.

Plaintiff testified, as of the time of the June 19, 2003, hearing,

pursuant to doctors’ orders, he was restricted to “a permanent

sedentary type of work situation, a sit-down job.” No doctor had

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released him to go back to work as a patrolman. Plaintiff

acknowledged receipt of a letter, dated September 23, 2002, from the

deputy chief of operations for the City of North Chicago, advising him

that the City of North Chicago did not have a permanent sedentary

position for a police officer, and informing him he had two options:

retire or apply for a disability pension. He obviously chose the latter

course.

At the hearing, plaintiff testified that he experiences pain just

walking. He rated his pain as 7 on a 10-point scale. He said his knee

is weak and sometimes locks or buckles. He stated he sometimes

experiences a grinding sensation in the knee. He claimed he “could

only sit for about 20 minutes, stand for about 25 to 30 minutes, and

walk for about 25 minutes,” before he had pain in the knee. Plaintiff

reiterated that he was working “full duty” prior to the April 2002

injury.

Plaintiff acknowledged preexisting problems with his knee in the

fall of 2001, noting “the pain, the discomfort, the problems getting in

and out” of his squad car. He stated he saw Dr. Pavlatos for that

condition on December 27, 2001. Plaintiff said he could not recall

missing work for any reason between that office visit and his April

2002 injury.

The Board had before it plaintiff’s rather extensive medical

records, most notably those evincing plaintiff’s medical treatment with

Dr. Roger Collins. An early entry in that file, dated July 30, 1992,

indicates that plaintiff reported a 1989 injury to his right knee,

sustained while playing football. According to plaintiff, the knee

became painful and later became swollen. Also in that entry, plaintiff

reported knee pain after participating in basketball games in

November of 1991. With respect to his 1992 knee complaints, the file

indicates that plaintiff reported pain in both knees “with prolonged

sitting.” He stated the first few steps after prolonged sitting might be

“quite painful.” At that time, he informed Dr. Collins that he had not

experienced locking of the knees, but he had occasionally had bilateral

buckling since 1989. He said he also occasionally had pain in the

knees during sleep. X-rays taken in 1992 revealed “scant early

degenerative changes” in plaintiff’s knees.

The next entry in Dr. Collins’ records is dated August 5, 1997.

According to Collins’ file, plaintiff was seen on that date for an

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evaluation of his right knee. Plaintiff stated he had been running bases

when he felt a “pop” in his right knee accompanied by immediate pain.

The entry notes:

“He recalls that he injured his knee in the past when he was

about 27 years of age. He was playing football. He was on the

ground and another player fell on his knees causing him to go

into hyperextension. He developed immediate swelling.”

Plaintiff reported having had problems with his knees for a number of

years. Some symptoms were similar to those mentioned in the 1992

entry, such as pain and stiffness after sitting. Collins noted swelling of

the right knee on the date of examination. After further assessment,

Collins discussed the risks and benefits associated with surgery.

Plaintiff opted for surgery. Postoperative file entries dated August

19, August 25, and September 27, 1997, indicate, at the time of

surgery, a “Grade II chondromalacia or thinning on the weight-bearing

surface of the medial and lateral femoral condyles” was noted. Plaintiff

was found to have “torn medial and lateral menisci” and “a defect on

the patellofemoral groove.” Collins performed “partial medial and

lateral meniscectomies and a lateral release.” Collins noted the

findings of plaintiff’s arthroscopy were “more consistent with what we

would see with someone in their 50’s, rather than someone who is 38

years of age.”

Plaintiff’s recovery from the surgery was problematic. A March

10, 1998, file entry indicates plaintiff had developed discomfort in the

knee and was having difficulty with stairs. He had a persistent and

“significant” swelling of his knee. Collins speculated it was “possible”

that plaintiff had torn more of the lateral meniscus. He noted “[t]he

posterior portion perhaps could have completely torn and displaced

slightly,” but he observed plaintiff did “not have mechanical

symptoms.” Collins decided to aspirate fluid from the knee, and

followed that with an injection of “2 cc DepoMedrol and 5 cc

Marcaine.” In a subsequent entry, dated January 7, 1999, Collins

reported that plaintiff was seen in the office reporting a “fair amount

of swelling” over the previous month. In the assessment portion of

that entry, Collins noted that plaintiff’s “articular cartilage is probably

progressively flaking off.” Collins concluded: “I suspect in the long

run, he will continue to have problems because he does have a fair

amount of pathology within the knee.”

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It appears that plaintiff next consulted a physician for his knee

problems on December 27, 2001, when he saw Dr. Christ Pavlatos. At

that time, plaintiff reported he had “been having bilateral knee pain for

the past 1½ years.” He complained of discomfort and occasional

swelling. Pavlatos’ examination of plaintiff revealed “a little

patellofemoral pain and trace medial joint line pain.” Pavlatos stated:

“We are probably dealing with patellofemoral pain with mild early

degenerative arthritis.” Pavlatos recommended therapy and directed

plaintiff to return in six weeks. The file evinces a phone consultation

on January 21, 2002, in which plaintiff reported “mild improvement,”

though he still had discomfort in the knee. Pavlatos recommended

“light duty” until plaintiff improved his quad strength. A notation

dated March 4, 2002, indicates that plaintiff had reported he was

“doing much better,” although he occasionally had “some discomfort.”

On that date, Pavlatos stated plaintiff could return to work at “full

duty.”

After plaintiff’s reported knee injury of April 20, 2002, he again

consulted with Pavlatos. On April 25, 2002, plaintiff reported having

sustained a twisting injury to his knee and complained of “significant

pain and swelling.” Pavlatos’ file entry of that date states: “Pain is

along the medial and lateral aspect of his right knee. Nis [sic] history

of a pop noted.” Pavlatos’ physical examination revealed effusion in

plaintiff’s right knee, mild patellofemoral pain, and flexion limited by

pain. X-rays showed evidence of “patellofemoral and medial

compartment arthritic changes.” After reviewing plaintiff’s MRI,

Pavlatos observed what he believed to be “a medial and lateral

meniscus tear.” In Pavlatos’ opinion, plaintiff had sustained “a new

tear of the *** lateral side and possibly the medial side.” Pavlatos

recommended right knee arthroscopy to address “a new lateral

meniscus tear and probable recurrent medial meniscus tear.” As far as

work was concerned, Pavlatos prescribed “a sit down job *** with no

more than 4 hrs. per day working.”

Surgery was performed on May 17, 2002. Pavlatos’ operative

report noted, inter alia, a “posterior horn tear of the medial meniscus”

and a “degenerative flap tear of the lateral meniscus.”

A postoperative notation dated May 29, 2002, states that plaintiff

was doing well, but had some mild discomfort. Already, on that date,

Pavlatos’ notes indicate that he did not believe plaintiff could ever

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return to full duty: “I do feel this patient will require a permanent

position that involves no running or excessive standing and a sit down

job would be my preference for this patient because of the degree of

arthritis he has at this young age.” Plaintiff returned for another

appointment with Pavlatos on June 19, 2002. Pavlatos noted, “He’s

a little over four weeks post knee arthroscopy for an arthritic knee.”

Plaintiff continued to complain of occasional pain. Pavlatos’

examination showed plaintiff still had a “trace” of effusion and limited

flexion. Pavlatos aspirated “20 ccs of clear yellow fluid from

[plaintiff’s] knee and a cortisone injection was given.” At a subsequent

office visit on August 2, 2002, plaintiff again reported discomfort,

“especially after prolonged periods of standing or excessive walking.”

Trace effusion was still noted, as was patellofemoral pain. Under the

category of “impression,” Pavlatos wrote: “Patient with degenerative

arthritis with persistent patellofemoral pain.” Under the heading,

“recommendation,” Pavlatos noted:

“At this point I do feel that this patient will require permanent

job modifications where he will need to have an office or desk

type job because of the degree of arthritis that he does have in

his knee. I do feel the arthritis was present prior to his

accident, although it certainly could [have] been aggravated by

his accident at work.”

Plaintiff was seen by Pavlatos again on September 12, 2002,

having been previously engaged in “sit down” work pursuant to

Pavlatos’ recommendation. Still, plaintiff reported having “significant

pain” over the anterior medial aspect of his knee, with an occasional

“catching sensation.” Plaintiff said his pain was sometimes disabling

to the point that he walked with a limp. Pavlatos’ examination again

revealed patellofemoral and medial compartment pain, and pain

limiting flexion. Pavlatos’ impression was: “Flare up of some arthritic

changes in [plaintiff’s] knee.” The same impression was noted in

entries dated September 24 and November 15, 2002. On the latter

date, which was subsequent to the filing of plaintiff’s October 2002

application for disability pension benefits, plaintiff reported periodic

pain with “sitting and walking.” In his examination of November 15,

2002, Pavlatos noted “no effusion, good flexibility, and good

strength” in the knee. Nonetheless, Pavlatos concluded that plaintiff

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needed to limit his activity to “office type work” and determined he

could not work in the field as a police officer.

The record also shows that plaintiff was evaluated on September

4, 2002, by Dr. Mark Levin. It appears that Dr. Levin conducted an

extensive and thorough examination of plaintiff and a meticulous and

comprehensive review of his records.

Levin listed plaintiff’s main complaint as “right knee pain that goes

up to a 7/10.” Plaintiff stated he experienced pain over the lateral

aspect of his knee while walking and got some locking and occasional

buckling. Plaintiff said he had been told by Dr. Pavlatos that he had

“bone on bone contact” in the knee. He informed Levin he could “sit

for 20 minutes, stand for 25-30 minutes, walk for 25 minutes and

[had] no problem with driving.” He could walk stairs, but experienced

discomfort when doing so.

Levin noted that plaintiff had a previous history of right knee pain

dating back to 1997. Although plaintiff did relatively well following

his 1997 knee surgery, he again developed knee pain in December of

2001. Levin’s notes indicate that plaintiff initially saw a Dr.

Sommerville for his knee and was diagnosed with arthritis. He

subsequently saw Dr. Pavlatos, who prescribed a regimen of physical

therapy. Levin’s entry states that plaintiff was off work, due to his

knee problem, from December of 2001 to February of 2002; however,

he did work “full-duty” from February of 2002 until April 20, 2002.

Levin’s examination of plaintiff revealed trace effusion of the right

knee and full extension and flexion. There was no tenderness of the

knee, though plaintiff complained of pain over the hamstrings. Levin’s

review of plaintiff’s standing X-rays revealed “arthritic changes both

over the medial and lateral compartments.” Although there was still

“joint space maintained,” Levin noted “signs of degenerative findings.”

Plaintiff’s April 2002 sitting X-rays also showed arthritic changes of

the right knee with “some minimal spurring of the patella” and

“spurring of the medial femoral condyle and medial tibial plateau.”

Plaintiff’s April 2002 MRI was consistent with contemporaneous X-

rays insofar as it disclosed arthritic changes of the knee. The MRI also

showed a medial meniscal tear. Operative photos from plaintiff’s 2002

knee surgery confirmed that plaintiff had a tear of the posterior horn

of the medial meniscus as well as a tear of the lateral meniscus. Levin

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also reviewed plaintiff’s postoperative progress reports and physical

therapy records.

Based upon plaintiff’s history, physical exam, radiographic studies

and medical records, Levin diagnosed plaintiff with “tri-compartment

arthritis of the right knee which would be chronic and longstanding”

and noted that condition “would pre-date an injury from April 20,

2002.” Levin observed: “The patient was symptomatic per his own

report prior to that but had been working as a patrol officer from

February to April.”

Levin concluded that plaintiff appeared to be at “maximum

medical improvement” but did “not appear to have the abilities to

return back to work as a patrol officer because of the underlying

arthritis of his right knee.” Levin’s report later reiterated that the

“need for work restrictions is coming from his underlying knee

arthritis,” but immediately followed that observation with this

statement: “It would appear that there was an aggravation from the

episode of April 2002 which is now preventing this patient from

returning back to work full-duty.” Levin stated that plaintiff would be

capable of working on a permanent basis at a sedentary position.

Plaintiff was subsequently advised that the North Chicago police

department had no permanent sedentary position for a police officer,

and, on October 8, 2002, he filed an application with the Board for a

disability pension. At that time, plaintiff did not specify whether he

was seeking a line-of-duty (see 40 ILCS 5/3–114.1 (West 2002)) or

a nonduty (40 ILCS 5/3–114.2 (West 2002)) disability pension.

However, he subsequently indicated that he was seeking a “duty-

related disability pension” only. Pursuant to section 3–115 of the Code

(40 ILCS 5/3–115 (West 2002)), three physicians were selected by the

Board to examine plaintiff: Dr. John Dwyer, Dr. Christopher Reger,

and Dr. James W. Milgram.

Drs. Dwyer and Reger found plaintiff to be disabled from a

“work-related” injury and each signed a “physician’s certificate,”

checking the “disabled” option on the certificate. We note there was

also a “not disabled” option on the certificates utilized in this case as

a means to address both alternatives on the issue of disability. Though

both doctors believed plaintiff was disabled from a work-related

injury, they acknowledged, in their accompanying reports, that he had

preexisting problems with his right knee.

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Dr. Dwyer’s accompanying report evinced an extensive

examination of plaintiff with very specific findings regarding range of

motion, appearance and function. Dwyer noted “visible swelling about

the right knee.” He stated that plaintiff demonstrated “post

arthroscopy knee with residual impairment there, chronic synovitis

with instability.” According to Dwyer’s report, plaintiff said he had

surgery on his right knee in 1997 “and returned to work on full duty

with no problem until the incident of 4-20-02. He denies any other

serious illness or injury.” Dwyer notes that plaintiff had reported:

“[B]y the time he prepares a meal for himself standing the

whole knee is sore. Prolonged walking also increases pain. He

stated the pain radiates up into the right thigh. If he sits too

long the knee locks. The knee swells and he ices it.”

Dr. Dwyer concluded that plaintiff could not perform the duties of a

street officer and noted that his “history certainly delineates a work

related condition.” Significantly, Dwyer noted that plaintiff had

surgery on his knee prior to the injury at issue in these proceedings,

and “a successful return to his normal occupation as a police officer

was seen.”

Dr. Reger also conducted an extensive examination and, in his

words, a “meticulous evaluation of records, and review of [plaintiff’s]

MRI and imaging studies.” Reger observed there were “mild to

moderate osteoarthritic changes about the right knee,” which were

most likely “present prior to this injury.” Reger also noted both

plaintiff’s prior injury in 1997 and his subsequent surgery. Reger’s

examination of plaintiff revealed some “mild swelling” of the right

knee and mild medial joint tenderness upon palpation. Plaintiff

complained of some discomfort in his knee as it was manipulated

during the examination. In the report accompanying his certificate,

Reger concluded that plaintiff was permanently disabled and stated his

belief that the cause of plaintiff’s disability was a work-related injury.

He observed that plaintiff “did have a timely work up after his injury,

and it did show a new meniscal tear.” Given plaintiff’s previously

repaired meniscal tear, Reger believed plaintiff was at a “higher risk

for reinjury, which did occur in this case.”

In his report, Dr. Milgram acknowledged the medical history

plaintiff reported to him, but his recitation makes clear that he did not

commit to that history as verified. He noted that plaintiff “has had no

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repeat MRIs or x-rays since the surgery. He brought with him no

tests.” In his examination of plaintiff, Milgram observed full range of

motion, no swelling, no fluid accumulation, no marked tenderness, and

good alignment and extension. Milgram took X-rays of plaintiff’s

knees and determined that “bilateral three compartment disease” was

present in both knees. Milgram concluded that plaintiff had

degenerative bilateral arthritis in both of his knees and that condition

preexisted any duty-related incident. Milgram felt, if plaintiff were “so

motivated[,] he could return to work as a police officer at the present

time without restriction.” Consistent with the skeptical tone that

pervades Milgram’s report, he states:

“I have reviewed the medical records and in no area that I

have reviewed is there a history given by the patient to his

treating physician that his knee popped when he fell down the

embankment. Therefore, this is a new history that the patient

is giving to me. The records do not show that type of an

injury. He was diagnosed by his own doctor as having bilateral

arthritis of both knees and the doctor felt that he might have

tears of his cartilage. Indeed he did have tears of the cartilage,

but as described in the operative note, they appear to be

degenerative type of tears and chronic. They certainly do not

appear to be like a new tear that just occurred and I think

there is a significant likelihood that the tears treated by Dr.

Pavlatos are pre-existing disease and not traumatic tears

caused by a new injury. I think the patient does not have also

a degree of arthritis which is disabling from work as a police

officer ***.”

Thus, Dr. Milgram did not find plaintiff to be disabled, much less

disabled from a work-related injury.

Following plaintiff’s hearing, the Board denied plaintiff a

line-of-duty disability pension on three independent bases, concluding

that plaintiff “did not incur a disability from the performance of an act

of duty,” his “condition does not render it necessary for his suspension

or retirement from police service,” and “three doctors selected by the

pension board did not certify the Applicant as disabled,” pursuant to

section 3–115 of the Code (40 ILCS 5/3–115 (West 2002)). In its

analysis, the Board found Dr. Milgram more credible than the other

physicians and assigned greater weight to his opinion. The Board also

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relied on Dr. Levin’s report and plaintiff’s extensive prior medical

treatment and injuries.

As noted, the circuit court confirmed the Board’s decision upon

administrative review, and the plaintiff appealed. Although the

appellate court initially found it unnecessary to address the evidentiary

sufficiency of the Board’s decision, given the court’s determination

that a disability pension was properly denied because three Board-

selected physicians had not certified plaintiff disabled, upon remand

we directed the appellate court to address the evidentiary question. In

doing so, the appellate court framed the issue, and summarized the

evidence, as follows:

“It is undisputed that plaintiff has preexisting arthritis of

his right knee. The dispute focuses on whether the April 20,

2002, accident caused a new tear to plaintiff’s knee or whether

the tear preexisted the accident. Four of the five physicians

who examined plaintiff concluded that plaintiff was disabled as

of the date of the accident. Dr. Pavlatos believed that the

accident caused a new tear. Dr. Levin concurred in this

conclusion. Dr. Milgram on the other hand believed that any

tears preexisted the accident, and the Board found Dr.

Milgram more credible, assigning more weight to his opinion.

Thus, this case turns on whether the record contains any

evidence to support Dr. Milgram’s finding that plaintiff did not

suffer a new tear to his knee when he fell down the

embankment.” 359 Ill. App. 3d at 229.

Plaintiff argued below that, given the evidence, Dr. Milgram’s finding

was baseless and unreliable and that the Board therefore erred in

assigning so much weight to Dr. Milgram’s opinion. The appellate

court agreed with that assessment. See 359 Ill. App. 3d at 229.

The appellate court noted that Milgram had concluded the

accident did not cause a new tear to plaintiff’s knee, in part, because

plaintiff did not report to his doctor that his knee had popped when he

tumbled down the embankment. However, as the appellate court

observed, the record indicates that plaintiff did in fact report to Dr.

Pavlatos that he felt his knee pop at the time of the accident. 359 Ill.

App. 3d at 230. The court concluded that Milgram’s misstatement of

the evidence showed that Milgram “either selectively disregarded,

failed to recall, or never reviewed portions of plaintiff’s medical

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records” and he “disregarded evidence that supports the finding that

plaintiff suffered a new tear.” 359 Ill. App. 3d at 230. The court also

found it “particularly troubling” that, “although he stated that he

reviewed plaintiff’s ‘medical records,’ nowhere in his report did Dr.

Milgram indicate that he specifically examined the MRI taken by Dr.

Pavlatos following plaintiff’s accident.” 359 Ill. App. 3d at 230.

Moreover, the court observed:

“Dr. Milgram based his finding that plaintiff is not disabled on

his beliefs that plaintiff ‘does not have a degree of arthritis

which is disabling from work as a police officer’ and that he

lacks motivation. This ‘lack of motivation analysis’ is vague

and has no scientific basis in fact because the report does not

consider, as the other examining physicians did, plaintiff’s

current symptoms regarding the use of his knee, i.e., that his

knee locks occasionally, that he experiences some pain in his

knee when he climbs up and down stairs, and that his knee

swells and feels tender when he does any strenuous activities.

Dr. Milgram’s opinion also fails to account for how these

symptoms might affect plaintiff’s work as a full-duty police

officer.” 359 Ill. App. 3d at 230.

The court determined that Dr. Milgram “was not credible, because his

conclusions were inconsistent with the facts available to him,” and

concluded that “the Board erred in assigning greater weight to Dr.

Milgram’s opinion, because he failed to consider or to base his opinion

on relevant, material evidence that was key under the circumstances

of this case.” 359 Ill. App. 3d at 230. Thus, the appellate court held

that the Board’s determination on disability was against the manifest

weight of the evidence. 359 Ill. App. 3d at 231.

The court then went on to address the issue of statutory

construction, ultimately determining, as it had in its prior disposition,

that section 3–115 of the Code requires that a pension board deny

disability benefits unless all three examining physicians selected by the

board certify that the applicant is disabled. 359 Ill. App. 3d at 238.

The court concluded with a quote from Justice Cardozo: “ ‘We do not

pause to consider whether a statute differently conceived and framed

would yield results more consonant with fairness and reason. We take

this statute as we find it.’ ” 359 Ill. App. 3d at 238, quoting F.

Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.

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L. Rev. 527, 534 (1947), quoting Anderson v. Wilson, 289 U.S. 20,

27, 77 L. Ed. 1004, 1010, 53 S. Ct. 417, 420.

We begin our analysis with the issue of evidentiary sufficiency, and

the standards of review applicable thereto. In administrative cases, we

review the decision of the administrative agency, not the

determination of the circuit court. Marconi v. Chicago Heights Police

Pension Board, 225 Ill. 2d 497, 531 (2006). Section 3–148 of the

Code (40 ILCS 5/3–148 (West 2002)) provides that judicial review of

the decision of the Board is governed by the Administrative Review

Law (735 ILCS 5/3–101 et seq. (West 2002)), pursuant to which, our

review extends to all questions of fact and law presented by the entire

record. 735 ILCS 5/3–110 (West 2002); Marconi, 225 Ill. 2d at 532;

International Union of Operating Engineers, Local 148 v. Illinois

Department of Employment Security, 215 Ill. 2d 37, 61 (2005).

Rulings on questions of fact will be reversed only if they are

against the manifest weight of the evidence. Marconi, 225 Ill. 2d at

532; Comprehensive Community Solutions, Inc. v. Rockford School

District No. 205, 216 Ill. 2d 455, 471-72 (2005). “An administrative

agency decision is against the manifest weight of the evidence only if

the opposite conclusion is clearly evident.” Abrahamson v. Illinois

Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). In

contrast, we review questions of law de novo (Branson v. Department

of Revenue, 168 Ill. 2d 247, 254 (1995)), and a mixed question of law

and fact is reviewed under the clearly erroneous standard (Marconi,

225 Ill. 2d at 532). In Marconi, we applied the manifest weight

standard to the “the question of whether the evidence of record

supports the Board’s denial of plaintiff’s application for a disability

pension,” noting that is a question of fact. Marconi, 225 Ill. 2d at 534,

543. That standard applies here as well. Under any standard of review,

a plaintiff in an administrative proceeding bears the burden of proof,

and relief will be denied if he or she fails to sustain that burden. See

Marconi, 225 Ill. 2d at 532-33, citing Miller v. Hill, 337 Ill. App. 3d

210, 216 (2003).

As appellate panels have observed, a disability pension may be

based upon the line-of-duty aggravation of a preexisting physical

condition. See Alm v. Lincolnshire Police Pension Board, 352 Ill.

App. 3d 595, 598 (2004); Barber v. Board of Trustees of Village of

South Barrington Police Pension Fund, 256 Ill. App. 3d 814, 818

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(1993) (“There is no requirement that the duty-related incident be the

originating or primary cause of the injury, although a sufficient nexus

between the injury and the performance of the duty must exist”).

With these precepts in mind, we turn again to the evidence

adduced in this case, and the Board’s decision, based on that evidence.

Other than the opinion of Dr. Milgram, there is no medical evidence

whatsoever to support a finding that plaintiff was not disabled for full

duty as a police officer, and there was abundant medical evidence that

he was disabled. As previously noted, Drs. Pavlatos, Levin, Dwyer

and Reger all found plaintiff to be disabled such that he was unable to

perform in a full-duty capacity as a police officer. Drs. Pavlatos and

Levin specifically found that the April 2002 injury aggravated

plaintiff’s preexisting condition, rendering him disabled. The reports

of these doctors evince examinations more thorough than that

conducted by Dr. Milgram, and analyses that were more complete and

better substantiated. We note that we have before us the same records

and reports examined by the Board; the doctors did not testify, and

thus factors such as the demeanor of testifying witnesses does not

figure into an assessment of credibility. Having thoroughly examined

those records, we find it, frankly, incomprehensible that the Board

would credit the opinion of Dr. Milgram and reject the opinions of the

other doctors.

As the appellate court noted, Dr. Milgram’s “misstatement of the

evidence” shows that he either “selectively disregarded, failed to

recall, or never reviewed portions of plaintiff’s medical records.” See

359 Ill. App. 3d at 230. Milgram claimed that he had reviewed

plaintiff’s medical records and in no area that he had reviewed was

there a history given to plaintiff’s treating physician that his knee had

popped when he fell down the embankment. Milgram found that

omission significant, and he observed, “this is a new history that the

patient is giving to me.” The suggestion–which is consistent with the

skeptical tone that pervades Milgram’s report–is that the plaintiff was

making things up as he went along. Milgram’s misconception may

well have led to his otherwise unsupported conclusion that, if plaintiff

were so motivated, “he could return to work as a police officer ***

without restriction.” In fact, the record indicates that plaintiff did

make a report of a knee pop to his treating physician, Dr. Pavlatos, on

April 25, 2002, five days after his injury.

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More evidence of Milgram’s cursory review of the record can be

found in his blanket statement that the tears of plaintiff’s cartilage, “as

described in the operative note, *** appear to be degenerative type of

tears and chronic.” While Dr. Pavlatos did describe one tear of the

meniscus as a “degenerative flap tear,” he did not so characterize the

other. Even if he had, that description would not necessarily impose

any chronology with respect to the date of the tear, as Milgram would

suggest. Furthermore, Milgram himself never addressed Pavlatos’

preoperative assessment of plaintiff’s MRI–an MRI that Milgram

apparently never reviewed–wherein Pavlatos stated his belief that

plaintiff had at least one new tear of his meniscus. In short, Milgram

provides no factual basis for his conclusion that the tears treated by

Dr. Pavlatos were “pre-existing disease and not traumatic tears caused

by a new injury.”

Finally, as the appellate court notes, Milgram’s report fails to

consider, as did the reports of the other examining physicians,

plaintiff’s current symptoms, i.e., “that his knee locks occasionally,

that he experiences some pain in his knee when he climbs up and

down stairs, and that his knee swells and feels tender when he does

any strenuous activity.” 359 Ill. App. 3d at 230.

We agree with the appellate court’s conclusion that Dr. Milgram

“was not credible, because his conclusions were inconsistent with the

facts available to him” and that “the Board erred in assigning greater

weight to Dr. Milgram’s opinion, because he failed to consider or to

base his opinion on relevant, material evidence that was key under the

circumstances of this case.” 359 Ill. App. 3d at 230. We feel

compelled at this juncture to remind Board members that, under the

Pension Code, a pension board owes a fiduciary duty toward its

participants and beneficiaries. See Board of Trustees of the

Barrington Police Pension Fund v. Village of Barrington Ethics

Board, 287 Ill. App. 3d 614, 616 (1997). Even under the manifest

weight standard applicable in this instance, the deference we afford the

administrative agency’s decision is not boundless. We hold, as did the

appellate court, that the Board’s decision was against the manifest

weight of the evidence.

We now turn to the issue of section 3–115’s proper construction.

Section 3–115 of the Code provides in pertinent part:

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“A disability pension shall not be paid unless there is filed

with the board certificates of the police officer’s disability,

subscribed and sworn to by the police officer if not under legal

disability, or by a representative if the officer is under legal

disability, and by the police surgeon (if there be one) and 3

practicing physicians selected by the board. The board may

require other evidence of disability.” 40 ILCS 5/3–115 (West

2002).

Two lines of appellate authority have developed with opposing

interpretations of section 3–115. One line, represented by Rizzo v.

Board of Trustees of the Village of Evergreen Park Police Pension

Fund, 338 Ill. App. 3d 490 (2003), among other cases, has interpreted

section 3–115 of the Code to prohibit a board from granting a

disability pension unless three practicing physicians, selected by the

board, have filed certificates stating that the applicant is disabled due

to a duty-related injury. An opposing view is represented by Coyne v.

Milan Police Pension Board, 347 Ill. App. 3d 713 (2004), in which

the appellate court held that the statute only requires three medical

certificates addressing an applicant’s disability status. Under the

Coyne construction, even if one doctor does not certify that an

applicant is disabled, the applicant can still obtain a pension if the

board finds the applicant disabled. The majority in Coyne rejected the

pension board’s construction of section 3–115–which was consistent

with Rizzo–reasoning as follows:

“We believe the Board’s interpretation of section 3–115

yields a result that is both absurd and unconstitutional.

Although the Board adjudicated several issues other than the

certificate requirement, such action was superfluous if the

Board’s interpretation of that requirement is carried to its

logical conclusion. As a threshold matter in all cases, the three

physicians specified in section 3–115 would each have to

certify that the applicant was disabled for police work. The

opinion of a lone minority dissenter like Doctor Harris (five

contrary opinions notwithstanding) would ipso facto defeat a

pension claim, thus rendering section 3–115 a virtual summary

dismissal provision. 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

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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. We cannot

believe the legislature would establish the adjudicatory process

outlined in the Pension Code expecting that the process would

be so easily precluded.” Coyne, 347 Ill. App. 3d at 729.

The dissenting justice in Coyne registered his belief that the phrase

“certificates of the police officer’s disability” is unambiguous and must

be given its plain and ordinary meaning. He criticized the majority’s

construction of the statute, calling it “tortured” and “Clintonesque.”

Coyne, 347 Ill. App. 3d at 730-31 (Schmidt, J., concurring in part and

dissenting in part). Justice Schmidt suggested that section 3–115

provides a way around the potential inequity of his interpretation of

the statute insofar as it provides “the board may require other

evidence of disability” (40 ILCS 5/3–115 (West 1996)) in addition to

the reports and/or certificates of the three physicians initially selected

by the board. Coyne, 347 Ill. App. 3d at 731 (Schmidt, J., concurring

in part and dissenting in part). He concluded, “there is nothing in the

statutory language to stop a claimant from petitioning the Board to

appoint a fourth physician to examine him in an effort to secure the

necessary three certificates of disability.” Coyne, 347 Ill. App. 3d at

732 (Schmidt, J., concurring in part and dissenting in part).

The cardinal rule of statutory construction, to which all other

canons and rules are subordinate, is to ascertain and give effect to the

intent of the legislature. Adams v. Northern Illinois Gas Co., 211 Ill.

2d 32, 64 (2004), citing McNamee v. Federated Equipment & Supply

Co., 181 Ill. 2d 415, 423 (1998). Although a court should first

consider the language of the statute, a court must presume that the

legislature, in enacting the statute, did not intend absurdity or

injustice. Adams, 211 Ill. 2d at 64, citing McNamee, 181 Ill. 2d at

423-24. “ ‘A statute or ordinance must receive a sensible construction,

even though such construction qualifies the universality of its

language.’ ” Adams, 211 Ill. 2d at 64, quoting In re Illinois Bell

Switching Station Litigation, 161 Ill. 2d 233, 246 (1994). Where the

intent of the legislature is otherwise clear, the judiciary possesses the

authority to read language into a statute which has been omitted

through legislative oversight. DeLuna v. Burciaga, 223 Ill. 2d 49, 60

(2006). When a literal interpretation of a statutory term would lead to

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consequences that the legislature could not have contemplated and

surely did not intend, this court will give the statutory language a

reasonable interpretation. In re Marriage of Eltrevoog, 92 Ill. 2d 66,

70-71 (1982), citing, inter alia, 2A A. Sutherland, Statutory

Construction §45.12 (4th ed. 1973). A statute should be interpreted

so as to promote its essential purposes and to avoid, if possible, a

construction that would raise doubts as to its validity. Morton Grove

Park District v. American National Bank & Trust Co., 78 Ill. 2d 353,

363 (1980). Statutes are presumed constitutional, and courts have a

duty to construe enactments by the General Assembly so as to uphold

their validity if there is any reasonable way to do so. People v. Jones,

223 Ill. 2d 569, 595-96 (2006). Consistent with this obligation, we

will not consider a constitutional question if the case can be decided

on other grounds. If a court can resolve a case on nonconstitutional

grounds, it should do so. People v. Lee, 214 Ill. 2d 476, 482 (2005).

The construction of a statute is a question of law, which we

review de novo. In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000).

The language of a statute is generally considered to be the most

reliable indication of the legislature’s objectives in enacting that

particular law. Southern Illinoisan v. Illinois Department of Public

Health, 218 Ill. 2d 390, 415 (2006). “However, if the language of a

statute is ambiguous, [courts] may look to tools of interpretation ***

to ascertain the meaning of a provision.” People v. Taylor, 221 Ill. 2d

157, 163 (2006); see Balmoral Racing Club, Inc. v. Topinka, 334 Ill.

App. 3d 454, 460 (2002). “A statute is ambiguous when it is capable

of being understood by reasonably well-informed persons in two or

more different senses.” People v. Jameson, 162 Ill. 2d 282, 288

(1994), citing 2A N. Singer, Sutherland on Statutory Construction

§45.02 (5th ed. 1992).

The justices of the Coyne court found the statute to be capable of

being understood in two different senses: either requiring physician’s

certificates actually finding the applicant disabled, or requiring

certificates merely addressing the issue of disability. The Coyne

majority settled upon the latter interpretation as the one intended by

the legislature. We find support for such an interpretation in the

documentation employed by the Board in this case. We note that the

“Physician’s Certificate” utilized by the North Chicago Police Pension

Board in fact provides the reporting physician with two optional

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findings: “disabled” and “not disabled.” Thus, the certificates used in

this matter were certificates addressing the issue of disability. In any

event, we find the statutory language of section 3–115, pertaining to

physician certification, sufficiently ambiguous to warrant resort to

other aids or tools of interpretation.

It is appropriate statutory construction to consider similar and

related enactments, though not strictly in pari materia. DeLuna, 223

Ill. 2d at 59-60; People v. Masterson, 207 Ill. 2d 305, 329 (2003);

Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d

428, 468 (1989). We must presume that several statutes relating to the

same subject are governed by one spirit and a single policy, and that

the legislature intended the several statutes to be consistent and

harmonious. DeLuna, 223 Ill. 2d at 60; Masterson, 207 Ill. 2d at 329;

People ex rel. Killeen v. Kankakee School District No. 11, 48 Ill. 2d

419, 422 (1971). In this respect, we note that the Illinois Pension

Code contains provisions pertaining to firefighters that are very similar

to those applicable to police officers.

Section 4–110 of the Illinois Pension Code provides in pertinent

part:

“If a firefighter, as the result of sickness, accident, or

injury incurred in or resulting from the performance of an act

of duty or from the cumulative effects of acts of duty, is

found, pursuant to Section 4–112, to be physically or mentally

permanently disabled for service in the fire department, so as

to render necessary his or her being placed on disability

pension, the firefighter shall be entitled to a disability pension

***.” 40 ILCS 5/4–110 (West 2002).

Section 4–112 of the Code provides in part:

“A disability pension shall not be paid until disability has

been established by the board by examinations of the

firefighter at pension fund expense by 3 physicians selected by

the board and such other evidence as the board deems

necessary.” (Emphasis added.) 40 ILCS 5/4–112 (West 2002).

At least two appellate panels have applied section 4–112 of the

Code in such a manner that the board, rather than any individual

examining physician, is the ultimate arbiter of disability and

consequent eligibility for pension benefits. See Bowlin v.

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Murphysboro Firefighters Pension Board of Trustees, 368 Ill. App.

3d 205, 210-12 (2006); Village of Oak Park v. Village of Oak Park

Firefighters Pension Board, 362 Ill. App. 3d 357, 369 (2005).

Although the appellate court in Graves v. Pontiac Firefighters’

Pension Board, 281 Ill. App. 3d 508, 510 (1996), in the course of

addressing other issues, loosely paraphrased section 4–112 as stating

“A disability pension shall not be paid unless three physicians selected

by the Board have determined by examinations that the firefighter is

disabled,” that reference rearranges the language of section 4–112 so

as to change its meaning. In any event, the proper interpretation of

section 4–112 was not at issue in Graves. See Graves, 281 Ill. App.

3d at 510-16.

Bowlin’s and Oak Park’s application of the language of section

4–112 of the Code clearly–and consistently with principles of due

process–places the decision as to a firefighter’s disability within the

purview of the pension board. Although the language of section 3–115

is less clear, we believe there is no real question as to the legislature’s

intent. In DeLuna, in the course of construing fraudulent-concealment

provisions pertaining to statutes of repose, we found it

“inconceivable” that the legislature would have intended to treat

attorneys differently than physicians. DeLuna, 223 Ill. 2d at 73. If

anything, it is even more “inconceivable” that the legislature would

have intended to treat these classes of emergency responders

(firefighters and police officers) differently for purposes of

ascertaining disability, making the pension board the decisionmaker

for purposes of section 4–112, but effectively placing any one of three

board-selected physicians in that position for purposes of section

3–115. That cannot be what the legislature intended.

The legislature has provided that the board of trustees of a police

pension fund is the entity statutorily empowered to verify an

applicant’s disability and right to receive benefits. 40 ILCS

5/3–114.1(d) (West 2002). The board is ultimately responsible for

administering the fund and designating beneficiaries. 40 ILCS 5/3–128

(West 2002). To read the statute as requiring the concurrence of all

three board-selected physicians would mean that one doctor, out of

the three selected by the board, could determine that the applicant is

not entitled to benefits, and, even though that opinion conflicts with

the well-reasoned opinion of every other doctor, the board would be

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powerless to override that opinion and authorize the payment of

benefits to a disabled applicant. In fact, any hearing conducted by the

board subsequent to the filing of that doctor’s certificate would be a

meaningless exercise, as no disability could be authorized, regardless

of the strength of the applicant’s evidence of disability. Again, that

result cannot be what the legislature intended.

We could, of course, read the statute as the dissenting justice in

Coyne did, to allow the board to appoint a fourth physician–and

perhaps more–to validate, for statutory purposes, a result the board

deems appropriate based on medical evidence already before it. Such

an interpretation seems to us as unreasonable as it is wasteful. Having

found the applicant disabled pursuant to the credible assessments of

two of three board-appointed physicians, the board would then be

required to expend additional sums to obtain another opinion of

disability solely to corroborate a determination the board has already

made. We reject any such requirement as a means of avoiding what

most jurists seem to agree would be a statutory construction capable

of manifest injustice. Rather, we interpret the statute as did the

majority in Coyne, as requiring three certificates or reports addressing

the issue of disability. The decision regarding disability is for the

board, not any individual physician.

For the foregoing reasons, the judgments of the circuit and

appellate courts are reversed, the decision of the Board is set aside,

and the cause is remanded to the City of North Chicago Police

Pension Board with directions that it grant the plaintiff a line-of-duty

pension in accordance with section 3–114.1 of the Illinois Pension

Code (40 ILCS 5/3–114.1 (West 2002)).

Reversed and remanded

with directions.

JUSTICE KILBRIDE took no part in the consideration or

decision of this case.

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