Hadler v. Board of Trustees of the Illinois Municipal Retirement Fund , 98 N.E.3d 590 ( 2018 )

2018 IL App (2d) 170303 No. 2-17-0303
Opinion filed February 2, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
KATHERINE L. HADLER, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 16-MR-1375
)
THE BOARD OF TRUSTEES OF THE )
ILLINOIS MUNICIPAL RETIREMENT )
FUND, ) Honorable
) Paul M. Fullerton,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hutchinson and Birkett concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Katherine L. Hadler, appeals from an order of the circuit court of Du Page
County affirming the decision of the defendant, the Board of Trustees of the Illinois Municipal
Retirement Fund (Board), denying her application for total and permanent disability benefits.
We reverse.
¶2 BACKGROUND
¶3 The plaintiff was a member of the Illinois Municipal Retirement Fund (IMRF), with over
26 years of service with employers covered by the IMRF. Most recently, the plaintiff worked as
an engineering technician for the Village of Rantoul. In 2012, the plaintiff began experiencing
2018 IL App (2d) 170303
pain in her right foot and ankle that prevented her from working. Her last day of work was
November 14, 2012. On November 15, 2012, she had bunion surgery on her right foot. She was
never able to return to work, and she was terminated on February 7, 2014. She applied for and
received temporary disability benefits, pursuant to section 7-147 of the Illinois Pension Code (40
ILCS 5/7-147 (West 2010)), from December 2012 until the benefits expired in June 2015.
Thereafter, she applied for total and permanent disability benefits pursuant to section 7-150 of
the Pension Code (40 ILCS 5/7-150 (West 2014)).
¶4 The record indicates the following. Following her surgery, the plaintiff continued to have
significant and debilitating pain in her right foot and ankle. She underwent physical therapy and
at some point received steroid injections every other day. Dr. Kimberly Eickmeier diagnosed the
plaintiff with complex regional pain syndrome (CRPS) and suggested that she have follow-up
surgery to remove a screw that was poking into a joint in her foot. The plaintiff received nerve
blocks twice a week to help with the pain, from March through June 2013.
¶5 On March 12, 2013, Dr. Frances Kramer confirmed the diagnosis of CRPS. Follow-up
surgery to remove the screw from the plaintiff’s right foot occurred on April 18, 2013. Her pain
continued. On July 17, 2013, the plaintiff had a spinal cord stimulator implanted in an attempt to
alleviate her pain, but the stimulator was removed about a week later because it made her pain
worse. In September 2013, Dr. Ramsin Benyamin and Dr. William Pierce both confirmed the
diagnosis of CRPS. The plaintiff had other follow-up surgeries in October 2013, but her pain did
not subside.
¶6 On February 7, 2014, a neurological report was issued by Dr. Elliot Palmer and reviewed
by Dr. Brett R. Stacey, of the Comprehensive Pain Center. Dr. Palmer noted that the nerve
blocks did not relieve the plaintiff’s pain. A neurological exam indicated that the plaintiff was
alert and oriented to person, place, and time. Dr. Stacey’s progress report notes indicated that the
-2­
2018 IL App (2d) 170303
plaintiff’s gait and station were “essentially symmetric, toe gait normal, heel gait normal, steady,
squat and rise and stand each foot.” He also indicated that “straight leg raise sitting is full and
nonrestricted.”
¶7 On November 14, 2013, Dr. Pierce completed an IMRF physician’s statement that
indicated that the plaintiff should not return to work. On January 17, 2014, Dr. Pierce prepared
another IMRF report that stated that the plaintiff was unimproved, with burning-type pain
consistent with CRPS of the right foot. Dr. Pierce indicated that the plaintiff was indefinitely
temporarily disabled.
¶8 The plaintiff had several follow-up visits with Dr. Kramer. On a May 22, 2015,
physician questionnaire, Dr. Kramer noted that the plaintiff suffered from CRPS in her right foot.
She could not walk or stand for longer than a few minutes and could not bear weight on her foot
for more than 30 seconds. She used a wheelchair intermittently. Her pain doctor had instructed
her not to drive. Her pain and her medications clouded her senses. The pain had been
excruciating and continuous for two years. Walking aggravated the pain. Dr. Kramer
recommended a restriction of “zero hours” of walking per day. He opined that she would never
be able to return to work and could never perform any gainful activity. Dr. Kramer concluded:
“[The plaintiff] has had multiple right foot surgeries. These have left her with severe
debilitating pain, inability to walk or stand for more than a few minutes. She has tried
numerous medication modalities, and procedures. She has extreme sensitivity to touch,
pressure and temperature. Her complex regional pain syndrome has totally disrupted her
life and employment. She is unable to work.”
¶9 On June 2, 2015, Dr. Heather O’Brien, the plaintiff’s treating psychologist, also
completed a physician questionnaire. Dr. O’Brien indicated that the plaintiff could not wear
shoes, could not stand for more than brief periods, and could not walk more than a few steps at
-3­
2018 IL App (2d) 170303
once. Her medications impacted her cognitive abilities, including concentration, organization,
and memory. Dr. O’Brien also indicated that the plaintiff was able to drive but that her
medications sometimes made it difficult. Dr. O’Brien opined that, due to the plaintiff’s
symptoms, vocational rehabilitation would likely not be effective. In order for the plaintiff to
work, her pain issue would have to be resolved and her pain medications decreased and there
would have to be improvements in attention, memory, and concentration. Dr. O’Brien opined
that the plaintiff could not maintain a work pace appropriate to a given workload, because it took
the plaintiff significantly longer to process tasks and she was easily confused. The plaintiff was
unable to perform complex or varied tasks. To a question regarding whether the plaintiff would
be able to return to work, Dr. O’Brien responded that CRPS generally does not have a positive
treatment outcome.
¶ 10 On May 30, 2013, Dr. Stuart King, one of the plaintiff’s treating physicians, completed
an IMRF report that indicated that the plaintiff was temporarily disabled. He issued similar
reports in June 2013, July 2013, November 2013, April 2014, May 2014, July 2014, and
November 2014. On November 6, 2013, Dr. King recommended that the plaintiff stop working.
On July 24 and November 7, 2014, Dr. King’s reports indicated that the plaintiff’s foot was
painful and sensitive to air and touch. The plaintiff was unable to wear a sock or shoe and was
unable to sit, stand, or walk. On February 6 and March 3, 2015, Dr. King issued reports that
indicated the same.
¶ 11 On May 13, 2015, Dr. King found that the plaintiff was totally and permanently disabled
due to her CRPS. She had chronic daily pain in her foot, her foot was sensitive to air and touch,
she was unable to wear socks or shoes, and she could not stand or walk for any extended time.
In an undated report, Dr. King noted that the plaintiff’s pain was exacerbated by movement and
that it continually interfered with her attention and concentration. He opined that the plaintiff
-4­
2018 IL App (2d) 170303
could not (1) think clearly; (2) sit, stand, or walk more than 15 minutes at a time; (3) wear shoes;
or (4) work an eight-hour day. Dr. King found that the plaintiff would need to continually shift
her physical position, would need to lie down at unpredictable intervals during a work shift, and
would be absent from work more than three times a month. Further, prolonged sitting would
require the plaintiff’s legs to be elevated. She could not drive due to her medications and
inability to use her right foot. On March 29, 2016, Dr. King filled out an IMRF form related to
the benefit claim. He noted that he could not complete the physical-capacity evaluation, because
he did not perform fitness-for-work evaluations. He did note that the plaintiff could not stand,
walk, or drive, but he did not indicate any limitation as to sitting.
¶ 12 In deciding whether the plaintiff was permanently disabled, the Board relied on findings
made by Dr. Noel Rao, IMRF’s medical consultant. In a letter dated June 20, 2015, Dr. Rao
stated that he had reviewed all of the plaintiff’s medical records. Dr. Rao noted that, in a
questionnaire, the plaintiff indicated that she had severe pain in her right foot and could not wear
shoes. The pain was worsened by sitting, standing, and walking. She also had anxiety and high
blood pressure and was on medications that impeded her ability to think and her memory. She
could not drive because of her medications and her inability to use her right foot. Dr. Rao also
reviewed medical records from Dr. King. Dr. Rao noted that, in the May 13, 2015, physician’s
statement, Dr. King opined that the plaintiff was permanently disabled due to the chronic daily
pain in her foot. Dr. Rao also noted that, on the May 22, 2015, questionnaire, Dr. Kramer noted
that the plaintiff occasionally used a wheelchair, was unable to walk more than 10 feet, and was
advised not to drive by her pain physician.
¶ 13 Dr. Rao further noted that he had reviewed Dr. O’Brien’s June 2, 2015, questionnaire.
Dr. Rao noted that Dr. O’Brien (1) stated that the plaintiff could drive but that her medications
sometimes made it challenging and (2) opined that the plaintiff would not be able to maintain an
-5­
2018 IL App (2d) 170303
appropriate pace for a given workload and could not perform complex or varied tasks. Dr. Rao
also stated that he had reviewed his own records concerning the problems with the plaintiff’s
right foot and her subsequent surgeries. Dr. Rao opined that the plaintiff had impairments
confined to her right foot and could not stand or and walk for prolonged periods. However, Dr.
Rao concluded that the plaintiff could engage in some gainful activity and therefore was not
eligible for total and permanent disability benefits. On July 1, 2015, in light of Dr. Rao’s
report, the Board denied the plaintiff’s request for benefits.
¶ 14 On September 1, 2015, the plaintiff sent the IMRF a request to review the denial of her
claim for benefits. On August 25, 2016, a hearing was held before the Board’s benefit review
committee (Committee). The IMRF had requested additional evidence from the plaintiff,
including medical records from Dr. King. The plaintiff also provided additional medical
evidence and documents related to her claims for Social Security disability benefits, including
the decision of the administrative law judge (ALJ) granting those benefits. Additionally, the
IMRF referred the plaintiff’s claim to Allegiant Managed Care (Allegiant) for a vocational
opinion on whether the plaintiff was able to engage in “any gainful activity” (see 40 ILCS 5/7­
150(a)(1) (West 2014)).
¶ 15 On August 17, 2016, a case manager for Allegiant issued a report. In the report, the case
manager noted that the “opinion provided in the report [was] based on review of the available
record, completion of a transferable skills analysis and Labor Market Survey, and research
regarding median wages associated with identified positions. That is to say, no meeting was
conducted with [the plaintiff] in person or by phone.” The case manager noted that Dr. Kramer
opined that the plaintiff could not stand or walk. Dr. O’Brien found that the plaintiff was unable
to wear shoes and could not walk more than a few steps and that her medications impacted her
cognitive abilities. Dr. King opined that the plaintiff could sit only 10 to 15 minutes at one time,
-6­
2018 IL App (2d) 170303
could stand or walk less than 10 to 15 minutes at one time, required a job that permitted her to
shift her position frequently, and could not drive due to her medications and inability to use her
right foot. The case manager stated that she conducted a transferable-skills analysis to determine
what skills, abilities, and other worker characteristics the plaintiff could apply to new or similar
occupations. The case manager noted that, “[f]or purposes of this report, it was assumed that
[the plaintiff] [was] capable of working in a position requiring no more than the sedentary
physical demand level.” The case manager also noted that she considered the plaintiff’s physical
limitations as defined by Dr. King. The case manager concluded that there were jobs available at
the sedentary-physical-demand level that the plaintiff could perform.
¶ 16 In the ALJ’s October 2015 report, ultimately granting the plaintiff Social Security
disability benefits, he noted that the plaintiff had “mild restriction in activities of daily living,
moderate difficulties in maintaining social function, moderate difficulties in maintaining
concentration, persistence or pace.” The ALJ noted that the plaintiff had the residual functional
capacity to perform sedentary work but could not climb ladders, ropes, or scaffolds and could
perform only simple repetitive tasks. The ALJ also found that the plaintiff could stay on task
less than 80% of the time due to her chronic pain and would likely have excessive work
absences. The ALJ noted that several medical providers had opined that the plaintiff could not
function in a competitive work environment and that the medical evidence supported that
finding. Finally, the ALJ found that the medical evidence supported the plaintiff’s subjective
allegations about the severity of her limitations and that the medical evidence demonstrated
ongoing aggressive treatment for her foot condition. The ALJ stated that he gave more weight to
the plaintiff’s treating physicians’ opinions that she could not function in a competitive work
environment than to Dr. Rao’s physical assessment, because the evidence showed that the
plaintiff was more limited than Dr. Rao had determined. The ALJ concluded that, because the
-7­
2018 IL App (2d) 170303
plaintiff’s limitations so narrowed the range of work that she could perform, a finding of
permanent disability was appropriate.
¶ 17 In a May 26, 2016, report, Dr. Rao noted that he had reviewed the additional medical
evidence that was sent to him. He noted that, in a February 10, 2016, questionnaire, the plaintiff
indicated that she had CRPS in both feet but that it was worse on the right. Her medications
affected her ability to think, sleep, and drive. She could do light household chores, but only a
little each day. She could stand for only a short time. Dr. Rao noted that he had reviewed the
ALJ’s report. Dr. Rao noted that the plaintiff was taking antidepressants for pain but was not
under the care of a psychiatrist. Dr. Rao concluded that the review of the additional evidence did
not alter his previous opinion that the plaintiff was ineligible for total and permanent disability
benefits, because she could engage in some gainful activity.
¶ 18 On August 25, 2016, following a telephone hearing, the Committee recommended
upholding the decision to deny the plaintiff’s claim. The minutes from the Committee hearing
indicate that the Committee heard comments from Dr. Rao, read the Allegiant report, and
reviewed the information packet submitted by staff prior to the hearing. The Committee
determined that, “[a]fter reviewing the medical, education and work experience records in our
files, it is the opinion of IMRF that [the plaintiff’s] claimed conditions do not prevent her from
being able to perform gainful activity.” Accordingly, the Committee determined that she did not
meet the statutory eligibility requirements for total and permanent disability benefits.
¶ 19 On August 26, 2016, the Board agreed with the Committee’s recommendation. The
Board issued a letter on September 21, 2016, explaining its reasons for the denial of benefits.
The Board explained that its determination was based on section 7-150 of the Pension Code and
the fact that, based on the medical evidence, the plaintiff was not “unable to engage in any
gainful activity because of any medically determinable physical or mental impairment.”
-8­
2018 IL App (2d) 170303
(Emphasis added.) 40 ILCS 5/7-150 (West 2016). The Board explained that “[t]otal and
permanent disability benefits can be awarded only if it is demonstrated that [the] disability is
total and permanent for any type of work.” (Emphasis in original.) The Board found that the
plaintiff did not meet this requirement.
¶ 20 On January 24, 2017, the plaintiff filed an action in the trial court for administrative
review of the Board’s decision, pursuant to the Administrative Review Law (735 ILCS 5/3-101
et seq. (West 2016)). On April 3, 2017, the trial court affirmed the Board’s decision. The trial
court found that the medical evidence indicated that the plaintiff could sit for extended periods of
time and that there were sedentary occupations available for which she was qualified. The trial
court further noted that the two doctors who indicated that the plaintiff could not work did not
state that she had problems remaining in a seated or sedentary position. Although Dr. King
stated that the plaintiff was totally disabled, the trial court noted that his most recent
questionnaire (by placing no explicit limits on sitting) indicated that the plaintiff could sit for
extended periods of time. Finally, the trial court acknowledged that the vocational report was
based on the assumption that the plaintiff could perform sedentary work. The trial court found
that this was not improper, because Dr. Rao had found, three months prior to the completion of
that report, that the plaintiff could remain in a sedentary position without pain and could find
gainful employment. The trial court found that the Board’s determination, denying the plaintiff’s
claim for total and permanent disability benefits, was not clearly erroneous. The plaintiff filed a
timely notice of appeal.
¶ 21 ANALYSIS
¶ 22 On appeal, the plaintiff argues that the Board erred in denying her claim for total and
permanent disability benefits, because she is unable to engage in any gainful activity within the
meaning of section 7-150 of the Pension Code.
-9­
2018 IL App (2d) 170303
¶ 23 In reviewing a decision by an administrative agency, we must review the final decision of
that agency. Thus, in this case we review the decision of the Board, not the decision of the trial
court. Sudzus v. Department of Employment Security, 393 Ill. App. 3d 814, 819 (2009). We
apply different standards of review depending on the type of issue for which review is sought.
When we review factual findings of the Board, we deem those findings prima facie correct and
will reverse only if they are against the manifest weight of the evidence. Id. (citing Jackson v.
Board of Review of the Department of Labor, 105 Ill. 2d 501, 513 (1985)). When the issue is
the correctness of the agency’s conclusions of law, our review is de novo. Id. Finally, when the
issue is a mixed question of fact and law, we apply the “clearly erroneous” standard and will
reverse only if our review of the record and the agency’s determination leaves us with the
“definite and firm conviction” that a mistake has been made. (Internal quotation marks omitted.)
Id. at 820 (quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.
2d 380, 393 (2001)).
¶ 24 In the present case, the issue is whether the plaintiff is disabled within the meaning of the
Pension Code. This is arguably a mixed question of fact and law, subject to the “clearly
erroneous” standard. Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit
Fund, 234 Ill. 2d 446, 463 (2009). However, the parties do not dispute the meaning of the term
“gainful activity.” Rather, the parties essentially dispute whether the facts support the Board’s
determination that the plaintiff is able to engage in any gainful activity. This is a question of
fact, subject to the manifest-weight standard. Sudzus, 393 Ill. App. 3d at 819. Under the
manifest-weight standard, we will overturn a decision only if, after reviewing the evidence in the
light most favorable to the Board, we determine that no rational trier of fact could have agreed
with the conclusion reached by the Board. Samuels v. Retirement Board of the Policemen’s
- 10 ­
2018 IL App (2d) 170303
Annuity & Benefit Fund, 289 Ill. App. 3d 651, 660 (1997). Although we apply the manifest-
weight standard, we note that our resolution of this case would be the same under either standard.
¶ 25 Section 7-150 of the Pension Code provides:
“(a) A participating employee shall be considered totally and permanently
disabled if:
1. He is unable to engage in any gainful activity because of any
medically determinable physical or mental impairment which can be
expected to result in death or be of a long continued and indefinite
duration, *** [and]
2. The Board has received a written certification by at least 1
licensed and practicing physician stating that the employee meets the
qualifications of subparagraph 1 of this paragraph (a).” 40 ILCS 5/7­
150(a) (West 2016).
¶ 26 In this case, the only issue is whether the plaintiff’s disability rendered her “unable to
engage in any gainful activity.” The term “gainful activity” is not defined in the Pension Code.
The parties do not dispute that the Board, pursuant to its rulemaking authority under section 7­
198 of the Pension Code (40 ILCS 5/7-198 (West 2016)), adopted resolution 2016-02-08, which
defines “gainful activity” under section 7-150 of the Pension Code as follows:
“[G]ainful activity for purposes of Section 7-150 of the Illinois Pension Code shall mean
whether the applicant, at the time of his or her application for total and permanent
disability, is capable of obtaining potential employment in any occupation or position
under which the applicant has the ability to earn at a minimum the monthly Social
Security gainful work activity earnings limitation. In making this gainful activity
determination, consideration shall be given to an applicant’s education and work
- 11 ­
2018 IL App (2d) 170303
experience although the determination of whether an applicant is able to engage in
gainful activity is not limited to employment in the field where the applicant had
previously worked, studied or trained. In addition, in making this gainful activity
determination, the geographic availability of gainful activity shall not be considered. In
certain cases, at the discretion of IMRF, a vocational expert may be used to make the
determination of whether an applicant is unable to engage in any gainful activity as
herein defined ***.” Illinois Municipal Retirement Fund Board Resolution No. 2016-02­
08 (approved Feb. 26, 2016). http://www.imrf.org/en/about-imrf/board­
resolutions/disability%20benefits/br-2016-02-08.
¶ 27 Upon our review of the record here, we hold that the Board’s determination was against
the manifest weight of the evidence. The plaintiff’s medical records document ongoing and
aggressive treatment for her CRPS. Despite her hospitalizations, physical therapy, nerve blocks,
and pain medications, the plaintiff continued to experience significant symptoms. Of the
plaintiff’s treating physicians who rendered opinions, all determined that the plaintiff was
permanently disabled. Dr. Kramer opined that the plaintiff would never be able to return to work
or perform any gainful activity. Dr. Kramer noted that the plaintiff’s pain was excruciating and
continuous, that her pain medications clouded her senses, and that she could not walk or stand
for more than a few minutes.
¶ 28 Dr. King concluded in May 2015 that the plaintiff was totally disabled due to her CRPS.
Dr. King noted that the plaintiff had chronic pain in her foot and that it continually interfered
with her ability to concentrate. If the plaintiff worked, she would need to continually shift her
position, would need to lie down at unpredictable intervals, and would be absent more than three
times a month. Dr. King also noted that the plaintiff was unable to drive due to her pain
medications and inability to use her right foot.
- 12 ­
2018 IL App (2d) 170303
¶ 29 Finally, Dr. O’Brien opined that vocational rehabilitation would likely not be effective.
Dr. O’Brien opined that the plaintiff would be unable to return to work unless her pain issues
were resolved and she was taken off pain medications. Dr. O’Brien also opined that the plaintiff
would not be able to function in a competitive work environment, because the plaintiff could not
perform complex or varied tasks and was easily confused.
¶ 30 In rendering its determination, the Board relied exclusively on Dr. Rao’s opinions and on
the Allegiant report. However, Dr. Rao never treated the plaintiff. We acknowledge that the
Board was not required to give more weight to the opinions of the plaintiff’s treating physicians
(Prairie Farms Dairy v. Industrial Comm’n, 279 Ill. App. 3d 546, 550-51 (1996)), but Dr. Rao
never explained the basis for his opinions. In his June 2015 report, Dr. Rao stated that he
reviewed all the medical evidence but then stated only that the plaintiff could not stand or walk
for prolonged periods. Dr. Rao did not address her chronic pain, the fact that her pain
medications clouded her senses, or her need to continually shift her position, elevate her foot,
and lie down at unpredictable intervals. Similarly, in his May 2016 report, Dr. Rao again stated
that he reviewed all the medical evidence, but he offered no explanation as to how, with all the
limitations set forth by the plaintiff’s treating physicians, the plaintiff could perform any gainful
activity. Further, he offered no reasons why the plaintiff’s treating physicians’ opinions should
be discounted.
¶ 31 The Allegiant report is also insufficient to support the Board’s determination. In the
report, the case manager stated that she “assumed” that the plaintiff could perform sedentary
work. However, the case manager also stated that she never directly spoke with the plaintiff.
The Board argues that the assumption that the plaintiff could perform sedentary work was based
on the opinion of Dr. Rao. However, there is no indication in the report that the case manager
reviewed Dr. Rao’s opinions or spoke with him. The report is also insufficient because the
- 13 ­
2018 IL App (2d) 170303
plaintiff’s work limitations were not all considered. In the report, the case manager stated that
she considered the limitations set forth by Dr. King and she included a list of limitations.
However, several limitations were missing from the report, such as the plaintiff’s attention and
concentration issues, her need to lie down at unpredictable intervals, her need to have her feet
elevated for prolonged sitting, and the fact that she would likely be absent from work more than
three times per month.
¶ 32 In support of its determination, the Board cites Dr. King’s March 29, 2016, IMRF
questionnaire. On that questionnaire, Dr. King indicated that he did not perform fitness-for-work
evaluations. Additionally, although he indicated that the plaintiff could not stand, walk, or drive,
he did not indicate any limitation as to sitting. However, the fact that Dr. King did not list a
limitation as to sitting cannot be interpreted as an affirmation that the plaintiff had no limitation
as to sitting, especially in light of Dr. King’s repeated assertions in other reports that the plaintiff
could not sit for more than 10 to 15 minutes at a time. The Board also argues that the plaintiff’s
own attorney stated that the plaintiff could perform sedentary occupations. However, the
plaintiff’s attorney actually stated that “[t]here are essentially no occupations that exist in the
current economy at the light or sedentary level that the [plaintiff] would be able to perform.”
¶ 33 Additionally, the Board cites the plaintiff’s outpatient physical-therapy notes, which list
the plaintiff’s functional limitations as “standing, ambulation, stairs, bending, lifting, [and]
squatting.” However, these notes were from January, February, and March 2013, shortly after
the plaintiff’s surgery, and cannot be used to counteract the most recent findings of the plaintiff’s
treating physicians. Finally, the Board cites Dr. Stacey’s neurological exam of the plaintiff,
which stated that “sitting is full and nonrestricted.” However, this was regarding her ability to
perform a straight-leg raise while she was sitting. It was not a determination that she could sit
for unlimited periods of time.
- 14 ­
2018 IL App (2d) 170303
¶ 34 The Board argues that, “[i]f the record contains evidence to support the IMRF decision, it
must be affirmed.” Although the record does contain evidence that would purportedly sustain
the Board’s decision, that evidence lacks a reliable basis and, upon consideration of all the
evidence, the opposite conclusion is clearly evident. Soto v. Board of Fire & Police
Commissioners, 2013 IL App (2d) 120677, ¶ 22. The Board relies on Saldana v. Industrial
Commission, 53 Ill. 2d 222 (1972), for the proposition that the choice between conflicting views
of experts is for the agency charged with making factual determinations. However, in Saldana,
the choice was between two “eminently qualified experts,” each of whom had examined the
employee. Id. at 222. In the present case, the plaintiff offered opinions from three experts. All
of her experts had examined and treated her. The Board rejected those opinions and instead
relied upon the opinions of the Allegiant case manager and Dr. Rao, neither of whom had ever
met the plaintiff. It is undisputed that the plaintiff is in constant pain and is unable to sit, stand,
or walk for any extended period. Although we may not reweigh the evidence, we have an
obligation to determine whether the Board’s decision was “just and reasonable in light of the
evidence presented.” Murbach v. Anderson, 96 Ill. App. 3d 1015, 1018 (1981) (quoting Davern
v. Civil Service Comm’n, 47 Ill. 2d 469, 471 (1970)). The Board’s decision was against the
manifest weight of the evidence. 1 Even applying the “clearly erroneous” standard, we are left
with a definite and firm conviction that the Board’s decision was a mistake.
1
We note that an employee who is drawing total permanent disability benefits is subject
to periodic checks, including an examination by a physician, to determine whether he or she
remains totally and permanently disabled. 40 ILCS 5/7-153 (West 2016); see also Ill. Mun. Ret.
Fund, Manual for Authorized Agents § 5.40A(2)(c) (Jan. 2014), https://imrf.org/AAmanual/
Online_AA_Manual/aamanual.htm (noting that total permanent disability benefits may be
- 15 ­
2018 IL App (2d) 170303 ¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, we reverse the judgment of the circuit court of Du Page
County and reverse the Board’s decision.
¶ 37 Reversed.
terminated if the member refuses to submit to a physical examination requested by the IMRF).
- 16 ­