Wade v. City of North Chicago Police Pension Board

No. 2--04--0047

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

LAWRENCE WADE, ) Appeal from the Circuit Court

) of Lake County.

Plaintiff-Appellant, )

)

v. ) No. 03--MR--987

)

THE CITY OF NORTH CHICAGO POLICE )

PENSION BOARD, ) Honorable

) Raymond J. McKoski,

Defendant-Appellee.

) Judge, Presiding.

______________________________________________________________________________

JUSTICE BYRNE delivered

the

opinion of

the

court:

On December 3, 2004, this court filed an opinion in

the

above-entitled case. See 353 Ill. App. 3d 852 (2004). In that opinion,

we addressed whether

defendant

,

the

City of North Chicago Police Pension Board (the

Board),

wrongly denied plaintiff, Lawrence Wade,

a line-of-duty disability pension (see 40 ILCS 5/3--114.1 (West 2002)), in part because Dr. Milgram, one of

the

three doctors

the

Board selected

to examine

plaintiff

, did not certify

plaintiff

as disabled pursuant to section 3--115 of

the

Illinois Pension Code (Pension Code) (40 ILCS 5/3--115 (West 2002)). P

laintiff

argued that (1)

the

Board denied him a fair and impartial hearing because it relied solely on Dr. Milgram's medical report 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 to mandate that, before a disability pension can be granted, all three examining physicians selected by

the

Board must certify that

the

applicant is disabled

.

We found that

the

Board correctly interpreted section 3--115 and properly denied

plaintiff

's application for disability pension benefits, and

we affirmed

the

Board's decision on this basis only.

Compare

Coyne v. Milan Police Pension Board

, 347

Ill. App. 3d

713, 727-30 (2004), with

Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund

, 338

Ill. App. 3d

490, 495 (2003).

Subsequently, plaintiff petitioned our supreme court for leave to appeal, which the supreme court denied.

Wade v. City of North Chicago Police Pension Board

, No. 99806 (May 2005). However, it entered a supervisory order directing this court to vacate our judgment, 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.

Pursuant to

the

supreme court's supervisory order, we find that

the

Board's determination that

plaintiff

had not proven his disability was contrary to

the

manifest weight of

the

evidence. However, we further conclude that, because

the Board

did not receive three certificates of plaintiff's disability, he was properly denied pension benefits under section 3--115.

FACTS

Plaintiff was hired as a full-time police officer by the North Chicago police department in June 1982. In 1989, plaintiff injured his right knee playing football. Dr. Roger B. Collins examined him in 1991 and again in 1992, when his knee problems continued. In August 1997, he twisted his right knee playing softball and underwent arthroscopic surgery. His knee problems continued and, in

late 2001 and early 2002, he missed work for approximately eight weeks because of them. He returned to work in February 2002.

On April 20, 2002,

plaintiff

injured

his right

knee when he tumbled down an embankment while escorting a prisoner. Plaintiff

sought immediate medical attention at Lake Forest Hospital, where he reported feeling a "pop" when he fell and experiencing pain and knee swelling. Dr. Chris Pavlatos, an orthopedic surgeon, performed orthoscopic surgery on

plaintiff

on May 17, 2002, after an MRI disclosed what Dr. Pavlatos believed was a new tear in

the

medial and lateral meniscus. On May 29, 2002, Dr. Pavlatos released

plaintiff

for "light duty work" and stated that

plaintiff

would "need to switch to a permanent sit down job with no running activities." This restriction was reiterated by Dr. Pavlatos after he examined

plaintiff

again on August 8, 2002.

On September 4, 2002, Dr. Mark Levin, an orthopedic surgeon, conducted an examination of

plaintiff

. His report indicated that

plaintiff

had chronic and long-standing knee problems that predated

the

April 20, 2002, injury.

Dr. Levin noted that

he examined plaintiff's

MRI scan from April 24, 2002, which showed

arthritic changes of

the

knee as well as "findings consistent with a medial meniscal tear." After reviewing

plaintiff

's history, radiographic studies, and medical records and performing a physical examination, Dr. Levin opined that

plaintiff

appeared to have tri-compartment arthritis of

the

right knee, which was chronic and long-standing and predated the injury from April 20, 2002. He further opined that

plaintiff

did not have

the

ability to return to work as a patrol officer because of

the

underlying arthritis of

the

right knee.

On September 23, 2002,

plaintiff

was advised that there were no permanent sedentary positions available for a police officer and his options were to retire or to apply for a disability pension. Thereafter, on October 8, 2002,

plaintiff

filed an application with

the

Board

for a disability pension

. He did not specify whether he was seeking a line-of-duty (see 40 ILCS 5/3--114.1 (West 2002))

or a not-on-duty (see 40 ILCS 5/3--114.2 (West 2002))

disability pension

under

the

Pension Code

.

Pursuant to statutory mandate (see 40 ILCS 5/3--115 (West 2002)),

three physicians selected by

the

Board, Dr. John Dwyer, Dr. Christopher Reger, and Dr. James W. Milgram, examined

plaintiff

.

Drs. Dwyer and Reger found

plaintiff

to be disabled from a "work-related" injury and issued certificates of disability.

Dr. Milgram found that

in both

of his knees plaintiff

had degenerative bilateral arthritis that preexisted any duty-related incident. Dr. Milgram did not believe that

the

degree of arthritis in his right knee "disabled"

plaintiff

from work as a police officer and felt that if

plaintiff

were "so motivated[,] he could return to work as a police officer at

the

present time without restriction." Dr. Milgram did not find

plaintiff

to be disabled from a work-related injury and did not issue a certificate of disability.

At

the

evidentiary hearing on June 19, 2003,

plaintiff

's counsel indicated that

plaintiff

wanted

the

Board to consider his pension application as a duty-related claim only

and that he was not seeking a not-on-duty disability pension. During

the

hearing,

the

medical reports of

the

Board's examining physicians and

the

medical records from

plaintiff

's treating physicians were admitted into evidence. Plaintiff did not object to

the

admission of these exhibits, including Dr. Milgram's medical report.

The Board denied

plaintiff

's application for a line-of-duty disability pension, finding that

plaintiff

had a preexisting disease

unrelated to

the

April 20, 2002, incident

. In its analysis, the Board found Dr. Milgram more credible than the other physicians and assigned greater weight to

his opinion

. The Board also relied on Dr. Levin's report and

the

extensive prior medical treatment and injuries, which indicated to

the

Board that

plaintiff's right knee condition existed prior to the work-related

incident. Citing

Rizzo

,

which interpreted

section 3--115 of

the

Pension Code to require a board to issue a disability pension only if it

receives certificates of

an officer's disability from three practicing physicians selected by

the

board,

the

Board denied

plaintiff

a disability pension because it did not receive three certificates of disability.

See

Rizzo

, 338

Ill. App. 3d

at 495.

Plaintiff filed a complaint for administrative review

. Following a hearing,

the

trial court affirmed

the

Board's decision, finding that

because

the

doctors' medical reports were admitted as part of

the

administrative record without objection

, plaintiff

waived any objections to

the

sworn certification requirements of section 3--115

.

The trial court did not rule on

the

issues of whether

the

Board's decision

was against

the

manifest weight of

the

evidence or legally erroneous. Rather,

the trial court believed that it was bound to follow

the

decision in

Rizzo

because it was

the

only appellate court case in Illinois specifically deciding

the

section 3--115 issue. Accordingly,

the

court affirmed

the

Board's decision

because

the

Board did not receive three certificates of disability from

the

examining physicians selected by

the

Board pursuant to section 3--115.

Plaintiff timely appeals.

ANALYSIS

1. Manifest Weight of

the

Evidence

As directed by

the

supreme court, we now first address

the

Board's determination that

plaintiff

had not proven his disability

.

On appeal, we review

the

decision of

the

administrative agency, not that of

the

trial court.

Stec v. Board of Trustees of the Oak Park Police Pension Fund

, 355

Ill. App. 3d

974, 978-79 (2005). An administrative agency's findings of fact are deemed

prima

facie

true and correct and may be set aside only if they are against

the

manifest weight of

the

evidence. 735 ILCS 5/3--110 (West 2002);

Daily v. Board of Trustees of the Police Pension Fund

, 251

Ill. App. 3d

119, 122 (1993).

"Factual findings are against

the

manifest weight of

the

evidence only where all reasonable and unbiased persons would agree it is clearly evident

the

administrative agency erred and should

have reached

the

opposite conclusion."

Caterpillar, Inc. v. Illinois Commerce Comm'n

, 348

Ill. App. 3d

823, 828 (2004). The mere fact that an opposite conclusion is reasonable or that

the

reviewing court might have ruled differently will not justify

the

reversal of

the

administrative findings.

Rhoads v. Board of Trustees of the City of Calumet City Policemen's Pension Fund

, 293

Ill. App. 3d

1070, 1076 (1997). Moreover, "because

the

weight of

the

evidence and

the

credibility of

the

witnesses are within

the

province of

the

[agency], there need only be some competent evidence in

the

record to support its findings."

Iwanski v. Streamwood Police Pension Board

, 232

Ill. App. 3d

180, 184 (1992). Thus, if

the

record contains any evidence to support

the

agency's decision, it should be affirmed.

Abrahamson v. Illinois Department of Professional Regulation

, 153

Ill. 2d

76, 88 (1992).

Plaintiff claims that he was entitled to a line-of-duty disability pension pursuant to section 3--114.1 of

the

Pension Code (40 ILCS 5/3--114.1 (West 2002)). In order to be entitled to a line-of-duty disability pension,

plaintiff

must prove in part that (1) he was disabled as a result of an injury incurred in or resulting from

the

performance of an act of duty;

(2) he is physically disabled; and (3)

the

disabling condition renders necessary his suspension from police service. 40 ILCS 5/3--114.1 (West 2002).

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. Plaintiff argues that

the

evidence

reveals that Dr. Milgram's finding was baseless and unreliable and that therefore

the

Board erred in assigning so much weight to Dr. Milgram's opinion

.

We agree.

Dr. Milgram's medical report submitted into evidence contains

the

following relevant portion:

"I have reviewed

the

medical records and in no area is there a history given by

the

patient to his treating physicians that his knee popped when he fell down

the

embankment with

the

patient [

sic

]. 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

the

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 that 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 that

the

patient does not have also a degree of arthritis which is disabling from work as a police officer and I feel that were he so motivated he could return to work as a police officer at

the

present time without restrictions."

It is clear from Dr. Milgram's report that he concluded that

the

accident did not cause a new tear to

plaintiff

's knee, because

plaintiff

did not report

to his doctor

the

symptom that his knee popped when he tumbled down

the

embankment.

Rather, Dr. Milgram felt that

the

tears appeared to be of a degenerative type and chronic from preexisting disease.

However,

the

record indicates that plaintiff

did in fact report to Dr. Pavlatos that he felt his knee pop when he fell down

the

embankment. This misstatement of

the

evidence shows that Dr. Milgram either

selectively disregarded, failed to recall, or never reviewed

portions of plaintiff

's medical records. Thus, he disregarded evidence that supports

the

finding that

plaintiff

suffered a new tear

. We find 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

.

Furthermore, 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.

Dr. Milgram was not credible, because his conclusions were inconsistent with

the

facts available to him.

We find 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. Accordingly,

we find that

the

Board's decision is against

the

manifest weight of

the

evidence

.

Moreover, contrary to

the

Board's argument, we believe that escorting a prisoner constitutes being "on duty" within

the

ambit of section 3--114.1 of

the

Pension Code. Section 5--113 of

the

Pension Code defines an "act of duty," in pertinent part, as "[a]ny act of police duty inherently involving special risk, not ordinarily assumed by a citizen in

the

ordinary walks of life, imposed on a policeman by

the

statutes of this State or by

the

ordinances or police regulations of

the

city in which this Article is in effect or by a special assignment." 40 ILCS 5/5--113 (West 2002).

Escorting a prisoner is not an act assumed by an ordinary citizen.

Four out of

five doctors

found

plaintiff

to be disabled due to

the

injury to his knee and attributed his present condition to

the

April 20, 2002, incident. Dr. Pavlatos stated that

plaintiff

's preexisting condition was aggravated by

the

accident. Dr. Levin opined that there was an aggravation from

the

accident that is now preventing

plaintiff

from returning to full-duty

work. The Pension Code states that

the

debilitating injury must have been incurred by or must have resulted from

the

performance of an act of duty.

Barber v. Board of Trustees of the Village of South Barrington Police Pension Fund

, 256

Ill. App. 3d

814, 818 (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

act of

duty must exist.

Barber

, 256

Ill. App. 3d

at 818. The reports of Drs. Pavlatos and Levin establish

the

nexus. Thus, even if

plaintiff

did suffer from a preexisting condition, he would nevertheless be entitled to a line-of-duty disability pension because

the

injury that caused his inability to work occurred while he was on duty

.

In

Coyne

,

the

board denied the plaintiff a line-of-duty disability pension

but failed to articulate its reasons. The

Appellate Court, Third District, remanded

the

cause,

explaining that the standard of review gives

the

board

the

benefit of

the

doubt, but,

with no

articulation of

the

findings upon which

the

board based its determination,

a reviewing

court could not extend that benefit in an informed manner. The appellate court concluded that "[a]n administrative agency's prerogative undoubtedly includes making credibility determinations between doctors who render competing opinions. But when

the

evidence weighs heavily against a single doctor, and

the

agency chooses to adopt that doctor's opinion,

the

agency must articulate

the

findings underlying its choice to facilitate meaningful review."

Coyne

, 347

Ill. App. 3d

at 724.

Accordingly,

the

appellate court believed that

the

appropriate course would be to remand

the

cause with instructions for

the

board to articulate its findings so that

the

appellate court could effectuate meaningful review.

Coyne

, 347

Ill. App. 3d

at 724.

In

the

present case,

the

Board did articulate its findings and we can effectuate meaningful review because it is apparent from

the

record that Dr. Milgram overlooked key medical evidence in formulating his opinions as to

the

cause of

plaintiff

's injury and to his lack of disability.

O

ur examination

leads us to conclude that

the

Board erred in assigning so much weight to Dr. Milgram's opinion

. Accordingly,

the

Board's finding that

plaintiff

was not entitled to a line-of-duty disability pension in accordance with section 3--114.1 of

the

Pension Code was

against

the

manifest weight of

the

evidence.

2. Section 3--115

We turn now to

the

issue of whether section 3--115 of

the

Pension Code mandates that a pension board deny disability benefits unless all three examining physicians selected by

the

board certify that

the

applicant is disabled.

We allowed

the

Hoffman Estates Police Pension Fund to file an

amicus

curiae

brief in support of

plaintiff

.

Plaintiff and

amicus

curiae

do not agree with

Rizzo

's

interpretation of

the

statute and assert that, while

a pension

board must have three certificates from its selected doctors, all three certificates do not need to find

the

applicant disabled for the board to award a disability pension. Relying on

the

recent decision of

Coyne

,

plaintiff

and

amicus

curiae

contend that

the

statute requires three medical certificates addressing an applicant's

disability

status

. Therefore,

they

assert, even though one doctor did not certify that

plaintiff

was disabled,

plaintiff

could still obtain a pension.

We begin by citing

the

statute, our standard of review, and

the

relevant statutory guidelines.

Section 3--115 of

the

Pension Code provides in relevant part:

"Certificate of disability. 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 2002).

In reviewing a final decision under

the

Administrative Review Law (735 ILCS 5/3--101

et

seq.

(West 2002)), we review

the

agency's decision and not

the

trial court's determination.

Martino v. Police Pension Board

, 331

Ill. App. 3d

975, 979 (2002). When

the

issue is one of law only, we review

the

agency's decision

de

novo

.

Martino

, 331

Ill. App. 3d

at 980. Here, review is

de

novo

because this case involves a question of statutory interpretation

.

Land v. Board of Education of the City of Chicago

, 202

Ill. 2d

414, 421 (2002). However, we give substantial weight and deference to an agency's interpretation of a statute it enforces.

Village of Franklin Park v. Illinois State Labor Relations Board

, 265

Ill. App. 3d

997, 1001 (1994).

In interpreting a statute,

the

court must ascertain

the

legislature's intent, which is found in

the

plain and ordinary meaning of

the

language used in

the

statute.

Land

, 202

Ill. 2d

at 421. Where

the

statutory language is clear,

the

court will give that language effect without resort to other aids of construction.

Martino

, 331

Ill. App. 3d

at 980.

In

Rizzo

,

two of

the three board-selected doctors

who examined

Rizzo

submitted reports finding that

Rizzo

was disabled and unable to return to his job as a police officer. The third physician found that, while Rizzo was impaired, he was not disabled and could return to full, unrestricted police duties. The first two physicians submitted reports of their opinions. The third physician submitted a certificate stating that

Rizzo was not disabled. Similar to

the

present case, in denying Rizzo a disability pension,

the

pension board

afforded more weight to

the

physician's opinion that Rizzo was not disabled. The board also denied Rizzo's application for benefits pursuant to section 3--115

because

the

third physician certified that Rizzo was not disabled.

Rizzo

, 338

Ill. App. 3d

at 491-93. On administrative review,

the

trial court reversed and remanded because

one of the doctors finding disability had not submitted a sworn certificate as required under section 3--115. On remand, the board noted that

it had received

the

second doctor's certificate certifying Rizzo was disabled. Rizzo filed another complaint for review. The trial court reversed again, finding,

inter

alia

, that

the

board improperly interpreted section 3--115.

On appeal, the First District Appellate Court held that

the

board properly interpreted section 3--115 because

the

language of

the

statute

clearly

states that a police officer cannot obtain a disability pension unless

a

board receives certificates from three practicing physicians, selected by

the

board,

stating that

the

officer is disabled

. The court noted that

the

board may require "other evidence" of

the

officer's disability, or evidence in addition to

the

three certified statements from

the

board's selected physicians that

the

applicant is disabled.

Rizzo

, 338

Ill. App. 3d

at 494. Because one of

the

three physicians selected by

the

board to examine Rizzo did not certify that he had a disability,

the

board could not award Rizzo a disability pension. Therefore,

the

appellate court concluded that

the

board properly denied Rizzo's application for disability pension benefits.

Rizzo

, 338

Ill. App. 3d

at 495.

In

Daily

, 251

Ill. App. 3d

119,

the

plaintiff

argued that

the

case should be remanded to obtain proper certification because the three physicians selected by

the

board to examine

the

plaintiff

did not certify that he had a disability. The Fourth District Appellate

Court held that, based on

the

statute, without

the

three physicians' certifications that

the

plaintiff

had a disability,

the

board could not give

the

plaintiff

a disability pension.

Daily

, 251

Ill. App. 3d

at 126.

The plaintiffs in

Rizzo

and

Daily

both relied on

Caauwe v. Police

Pension Board

, 184 Ill. App. 3d 482 (1989), for

the

proposition that

physicians' certificates are required from three doctors to establish

either

an applicant's

disability

or

the lack thereof. In

Caauwe

,

the

pension board denied disability benefits based on unverified and unsworn medical evidence. The

plaintiff

asserted that certification by

three

doctors that he was not disabled was mandatory to deny benefits under section 3--115, and because

the

doctors' reports lacked

the

certification of his disability,

the

cause should be remanded for such certification. The appellate court

agreed and held that section 3--115 mandated

that the

board select three practicing physicians to furnish

subscribed and sworn-to certifications of

the

applicant's disability status.

Accordingly, the court reversed and remanded for the board to receive three doctors' certifications of the plaintiff's disability or lack thereof.

Caauwe

, 184 Ill. App. 3d at 484-86 .

Daily

and

Rizzo

found that, under the clear language of section 3--115, certification of an applicant's disability is required only when a board will be providing benefits

, not when it is going to deny benefits.

Rizzo

, 338

Ill. App. 3d

at 494-95

;

Daily

,

251

Ill. App. 3d

at 127.

T

o

the

extent that

Caauwe

mandates certification of an applicant's disability prior to denying benefits,

both

courts found it to be a contradiction of

the

express language of

the

statute

and declined to follow

Caauwe

.

Rizzo

, 338

Ill. App. 3d

at 495

;

Daily

, 251

Ill. App. 3d

at 127.

Plaintiff and

amicus

curiae

rely on

the

recent Third District Appellate Court decision in

Coyne

to support their argument that

the

statute does not require three certificates of disability furnished by doctors selected by

the

pension board

for

the

board to grant a disability pension

. In

Coyne

, as here, the

board interpreted

the

language of section 3--115 as requiring a unanimous declaration from its three appointed doctors that Coyne was disabled for police work, and since

one doctor selected by

the

board opined that Coyne was not so disabled,

the

board summarily denied him benefits.

Coyne

, 347

Ill. App. 3d

at 727.

The trial judge disagreed with

the

board's interpretation of section 3--115, finding

the

relevant statutory language to be ambiguous. The judge construed section 3--115 as requiring three medical certificates addressing Coyne's

disability

status

. Because all three of

the

certificates met this standard,

the

judge concluded

that the

one doctor's opinion that Coyne was not disabled did not

ipso

facto

disqualify Coyne from receiving pension benefits.

Coyne

, 347

Ill. App. 3d

at 727-28.

The Third District Appellate Court agreed with

the

judge's conclusion. The focus of its analysis centered on

the

meaning of

the

qualifying label "of disability." The court found 21 nuances for

the

word "of," ranging from " '[c]entering on' " to " '[i]n respect to,' " which

the

court felt injected ambiguity into

the

pivotal statutory language.

Coyne

, 347

Ill. App. 3d

at 728.

The court believed that these various definitions could easily encompass a certificate addressing an applicant's

disability

status

generally, regardless of

the

doctor's ultimate opinion about whether

the

applicant can perform police work.

Coyne

, 347

Ill. App. 3d

at 728.

The court also expressed its concern over

the

meaning of

the

word "disability" because

the

statute says nothing about

the

degree of

the

person's incapacity. The court pointed out that in

section 3--114.2 of

the

Pension Code (40 ILCS 5/3--114.2 (West 1996)),

the

legislature recognized

the

varying degrees of disability. After a

police officer suffers a disability,

the

pension board decides whether

the

degree of

the

disability is sufficient to trigger pension benefits. However, in the

certificate provision of section 3--115,

the

legislature referenced "disability" in a general fashion without elevating

the

term as it did in section 3--114.2. The

Coyne

court believed that this fact, combined with

the

range of definitions for

the

word "of," resulted in ambiguity regarding

the

content of

the

required certificates.

Coyne

, 347

Ill. App. 3d

at 728-29.

The court found that to uphold

the

board's interpretation of section 3--115 would yield a result that would be both absurd and unconstitutional. The court asserted that, if the board's interpretation were carried to its logical conclusion, then, as a threshold matter in all cases,

the

three physicians required by section 3--115 would each have to certify that

the

applicant was disabled for police work, and

the

opinion of a lone minority dissenter would

ipso

facto

defeat a pension claim, rendering section 3--115 a virtual summary dismissal provision.

Coyne

, 347

Ill. App. 3d

at 729.

The court pointed out that

the

evidentiary hearing would be rendered useless because, regardless of

the

weight of

the

applicant's evidence,

the

outcome would be predetermined by

the

mere existence of a disagreement between witnesses.

Coyne

, 347 Ill. App. 3d at 729 .

The court further pointed out that due process requires adequate notice and a hearing, but

the

board's interpretation precluded a hearing and effectively turned

the

decision over to

the

three physicians selected by

the

board rather than to

the

trier of fact.

Coyne

, 347

Ill. App. 3d

at 729.

Justice Schmidt did not agree with

the

majority's rationale in

Coyne

. In his dissent, he asserted that

the

issue centered around what

the

legislature meant when it referred to the term " 'certificates of

the

police officer's disability.' "

Coyne

, 347 Ill. App. 3d at 730 (Schmidt, J., dissenting). He believed that

the

majority tortured

the

word "of" in a " 'Clintonesque' fashion" to make

the

term ambiguous. He

found nothing ambiguous about

the

term, that

it plainly refers to certificates stating that

the

police officer is disabled in one form or another

.

Coyne

, 347

Ill. App. 3d

at 731 (Schmidt, J., dissenting).

Justice Schmidt pointed out

that a reading of

the

statute under the majority's line of reasoning

would render an absurd result because it would allow

the

board to pay a disability pension to a police officer where every certificate on file, including

the

officer's, indicated that he was

not

disabled.

Coyne

, 347

Ill. App. 3d

at 731 (Schmidt, J., dissenting).

We agree with

Justice Schmidt

's dissent as well as the

reasoning in

Rizzo

and

Daily

,

which have construed

the

statute to mean what it says.

We find nothing equivocal about

the

term "certificates of

the

police officer's disability." "Disability" is defined

as "[a] condition of physical or mental incapacity to perform any assigned duty or duties in

the

police service." 40 ILCS 5/5--115 (West 2002)

. Accordingly, we see no need to certify

the

degree

of

an

applicant's disability.

Under the clear meaning 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. This shows

the

legislature's intent to require very strong proof before

the

board issues

a

disability pension.

Furthermore, contrary to the argument raised in

Coyne

and relied on by plaintiff and

amicus

curiae

,

we do not find that the Board's interpretation yields an absurd or unconstitutional result. If three certificates are filed establishing disability,

the issue then becomes whether the disability was caused by a noncovered act or a covered act. If the Board determines that the disability was caused by a covered act, then the Board must determine the type and amount of pension the applicant receives. See 40 ILCS 5/114.1, 114.2 (West 2002). Thus, there is a rationale as to why the statute states that there may be other evidence presented on point, especially if the certificates of disability are inconsistent as to the cause of the disability.

We note that,

although Coyne was not certified by three physicians selected by the board, a fourth physician, a psychiatrist who was referred by one of the selected physicians, stated that Coyne could not work as a police officer. Thus, consistent with Justice

Schmidt's dissent, we see nothing in the statute to preclude an applicant from requesting a 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., dissenting). Finally, we point out that

the

medical examination requirements in the Pension Code are antifraud provisions, and they serve the legitimate legislative goal of ensuring the integrity of the pension fund.

Trettenero v. Police Pension Fund

, 333

Ill. App. 3d

792, 799 (2000).

Because

we find

the

language clear, there is no need to resort to other interpretive aids. See

Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.

, 158

Ill. 2d

76, 81 (1994) (where

the

enactment is clear and unambiguous, a court is not at liberty to depart from

the

plain language and meaning of

the

statute by reading into it exceptions, limitations, or conditions that

the legislature did not express). The statute as clearly written should be enforced. See

Paris v. Feder

, 179 Ill. 2d 173, 177 (1997) (if legislative intent can be ascertained from a statute's plain language, that intent must prevail without resort to other interpretive aids)

.

Plaintiff believes that

Rizzo

is distinguishable from his case, based on a number of other grounds. Plaintiff asserts that Rizzo sought a nonduty disability pension rather than a line-of-duty disability pension like plaintiff. We find this to be a distinction without a difference. It is not the type of disability that is pivotal to the issue under section 3--115. Rather, it is whether three physicians selected by the board have certified that the applicant has a disability.

Plaintiff further contends that in

Rizzo

all three doctors filed certificates regarding Rizzo's disability one way or the other, while here, Dr. Milgram did not issue a certificate at all.

Of importance here, as in

Rizzo

, is that only two of the three physicians certified plaintiff as disabled. Furthermore, regardless of the distinction between the facts, it is the Board's interpretation of section 3--115 and its application to the facts that is relevant to our disposition.

Both plaintiff and

amicus

curiae

believe that the First District Appellate Court case of

Knight v. Village of Bartlett

, 338 Ill. App. 3d 892 (2003), contradicts its decision and analysis in

Rizzo

.

Knight

neither addresses the decision in

Rizzo

nor does it construe section 3--115. Rather, in

Knight

, two doctors selected by the board concluded that Knight was permanently disabled and unfit for duty as a police officer, and the third doctor concluded that Knight had a " 'lack of fitness for duty' " but was not psychologically disabled.

Knight

, 338 Ill. App. 3d at 900 . The appellate court noted that the record indicated that the doctor used the phrase "lack of fitness for duty" to describe Knight as no longer being capable of performing the duties of a police officer, and the court concluded that "lack of fitness" was synonymous with "unfit."

Knight

, 338 Ill. App. 3d at 900 . Because all three examining physicians essentially reached the same conclusion that Knight was disabled, the court reversed the board's decision denying a disability pension as against the manifest weight of the evidence. The court never addressed the issue here: whether the lack of a third certificate under section 3--115 precludes an applicant from receiving a disability pension.

3. Fair and Impartial Hearing

Plaintiff and

amicus

curiae

imply that a pension board can select a practicing physician whom the board knows will not certify an applicant as disabled, in order to deny the applicant a disability pension. We presume that persons who serve on administrative tribunals are fair and honest. See

Jackson v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago

, 293 Ill. App. 3d 694, 699 (1997). Plaintiff did not offer any evidence of bad faith here. In the absence of any such evidence, we will not presume that the Board acted arbitrarily or in bad faith. However, if an applicant presented such proof, then a board's decision could be reversed and the cause remanded with directions to appoint a fourth physician to examine the applicant.

We note that because we have addressed this issue, we deny the Board's motion, taken with the case, to strike plaintiff's argument regarding whether he received a fair and impartial hearing

.

In summary, by the plain, express language of section 3--115, the legislature clearly requires that certificates of disability be filed by three practicing physicians selected by a board before a police officer is entitled to disability benefits. Here, since the three physicians chosen by the Board did not file certificates of disability, plaintiff is not entitled to disability benefits. Before we could rule for plaintiff, we would have to rewrite the statute to allow the Board more flexibility with respect to the certificates of disability. However, we cannot rewrite the statute. Rather, it is our task to interpret and apply it in the manner in which it was written.

In re Estate of Schlenker

, 209 Ill. 2d 456, 466 (2004). As Justice Cardozo stated: "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." F. Frankfurter,

Some Reflections on the Reading of Statutes

, 47 Colum. L. Rev. 527 (1947). Because we must take it as we find it, the clear, express language of the statute compels us to affirm. The language of the statute is plain and has only one meaning. Thus, the duty of interpretation does not arise. If the legislature intends the courts to interpret section 3--115 as plaintiff does, it should make the necessary statutory changes.

For

the

preceding reasons,

although we find

the

Board's determination that plaintiff

was not entitled to a line-of-duty disability pension in accordance with section 3--114.1 of

the

Pension Code

against

the

manifest weight of

the

evidence, we affirm

the

Board's decision based on the application of section 3--115

denying plaintiff disability

pension

benefits because the Board did not receive three certificates of disability.

Affirmed.

McLAREN, J., concurs.

JUSTICE BOWMAN, dissenting:

I respectfully dissent in part and concur in part. I concur in the majority's analysis and decision that the Board's finding that plaintiff had not proven grounds for a line-of-duty disability pension in accordance with section 3--114.1 of the Illinois Pension Code (Code) (40 ILCS 5/3--114.1 (West 2002)) is against the manifest weight of the evidence. However, I disagree with the majority's finding that section 3--115 of the Code (40 ILCS 5/3--115 (West 2002)) requires three practicing physicians, selected by the Board, to certify the police officer's disability and with its consequential finding affirming the Board's decision to deny plaintiff's application for disability benefits.

I believe that the majority decision in

Coyne v. Milan Police Pension Board ex rel. Jones

, 347 Ill. App. 3d 713, 727-30 (2004), analyzing Section 5, "Physicians' Certificates of Disability," correctly interprets section 3--115 of the Code (40 ILCS 5/3--115 (West 2002)). Consequently, I would reverse the Board's decision to deny plaintiff disability pension benefits because the Board did not receive three physician certificates of disability.