Mahan v. Marion Police Pension Bd.

233 N.E.3d 943

2023 IL App (5th) 210426

Joshua MAHAN, Plaintiff-Appellant,

v.The MARION POLICE PENSION BOARD, Scott Morse, Ronald Swafford, Jessie Thompson, Terance Henry, and Tammy Beasley, Defendants-Appellees.

NO. 5-21-0426

Appellate Court of Illinois, Fifth District.

Filed February 3, 2023

Appeal from the Circuit Court of Williamson County. No. 21-MR-150, Honorable Jeffrey A. Goffinet, Judge, presiding.

Eric Kirkpatrick, of Kirkpatrick Law Offices, P.C., of Belleville, for appellant.

Dennis J. Orsey, of Dennis J. Orsey, P.C., of Granite City, for appellees.

OPINION

JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 Appellant, Joshua Mahan, appeals the findings of the Marion Police Pension Board (Board), which terminated his line-of-duty disability pension. The Board found that Mahan was no longer disabled from performing the duties of a Marion police officer stemming from an injury to his thoracic spine. The Board terminated Mahan’s disability payments. For the following reasons, we reverse the Board’s decision.

¶ 2 I. BACKGROUND

¶ 3 On October 15, 2007, Mahan began working as a police officer for the Marion Police Department. On May 20, 2011, he suffered an injury to his thoracic spine while on duty as a police officer. It was reported that while in pursuit of a suspect, Mahan stepped into a ditch that was not visible to him; "jarred" his body, neck, and spine; and felt pain in his neck, thoracic spine, and lumbar spine. Mahan reportedly completed the arrest but later went to the emergency room where he was treated and discharged. On March 12, 2012, Mahan filed an application for line-of-duty pension benefits under the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2012)).

¶ 4 Pursuant to section 3-115 of the Pension Code (40 ILCS 5/3-115 (West 2012)), the Board held a hearing on July 26, 2012, to determine Mahan’s eligibility for a disability pension. Prior to this hearing, Mahan was examined by Dr. Lange and Dr. Bernard Rerri. The record in this case does not contain any reports from Dr. Lange. An "Independent Medical Evaluation" (IME) report (2012 IME report) was prepared by Dr. Bernard Rerri and submitted to the Board.

¶ 5 Dr. Rerri’s 2012 IME report provided as follows. Mahan reported that since the injury, he has had persistent lower neck pain, mid-scapular pain, bilateral arm pain, and numbness in his little fingers. He also reported that he experienced episodic spasms of neck pain and upper thoracic pain. He described his pain level as 7 out of 10, with some relief while sitting or lying down. Despite epidural injections, physical therapy, exercise therapy, medications, modified activity, and "other supportive treatments," Mahan remained in significant discomfort and had been unable to return to his job as a police officer. In his report, Dr. Rerri stated that surgery for Mahan’s injury carried significant risk, with an unpredictable outcome that is sometimes worse than the presenting problem. Dr. Rerri indicated that he would not advise surgical intervention for Mahan’s upper thoracic injury and did not offer surgery as an option.

¶ 6 Dr. Rerri opined that Mahan was disabled as a result of his injury and described his disability as "medium." Dr. Rerri believed that Mahan was capable of light duty and sedentary activities that would not involve lifting more than 20 pounds or repetitive testing and bending of his spine. Dr. Rerri also believed that Mahan could perform activities that avoided violence and sudden, explosive increases in physical activity. Dr. Rerri indicated that because Mahan’s symptoms were episodic and unpredictable, it would be unreliable for him to maintain a high level of preparedness or carry out sudden, explosive physical activities required for an active-duty police officer. In Dr. Rerri’s opinion, Mahan had a disability that made him unable to perform the duties of an active-duty police officer "at this time or in the foreseeable future." Dr. Rerri considered Mahan’s disability to be permanent, with little prospect for improvement. Dr. Rerri concluded that he would not recommend that Mahan return to work as an active-duty police officer.

¶ 7 The Board granted Mahan’s application for a line-of-duty disability pension. Subsequent disability review hearings were held in 2016, 2017, and 2018. In 2016 and 2017, Mahan was examined by two separate doctors. Reports from these doctors are not part of the record in this case; however, Mahan’s disability pension was continued following the review hearings in 2016 and 2017. In 2018, Mahan was examined by Dr. Joseph Yazdi at the request of the Board, and Dr. Yazdi prepared a report (2018 IME report). Following a 2018 hearing, the Board, relying on Dr. Yazdi’s 2018 IME report, concluded that Mahan was no longer disabled. Mahan appealed the Board’s 2018 decision to the circuit court. On April 4, 2019, the circuit court reversed the Board’s decision. In reversing the Board’s decision, the circuit court was critical of Dr. Yazdi’s 2018 IME report and found that the Board erred in assigning the weight it did to Dr. Yazdi’s opinion. The circuit court was also critical of the Board’s rejection of a "Functional Capacity Examination" (FCE), which demonstrated an inability to perform the duties of a police officer based upon the information provided by Mahan. The circuit court also criticized the Board’s finding that Mahan was not credible.

¶ 8 In January 2020, Mahan was notified that the Board would again conduct a hearing to review his continued eligibility for disability pension benefits. The hearing was eventually held on March 10, 2021. At this hearing, the Board’s attorney also served as the hearing officer, sat in during the Board’s deliberations, and wrote the Board’s final order. No objection was made to this procedure.

¶ 9 The Board’s evidence consisted of the following exhibits: (1) the hearing minutes from the July 26, 2012, hearing, (2) the Marion Police Department job description, (3) medical records from Southern Illinois Healthcare from January 2019 to October 2019,¹ (4) a letter to Dr. Yazdi from the Board’s attorney, (5) an IME report from Dr. Yazdi, with attached appendices, dated August 24, 2020 (2020 IME report), (6) a "Certification of Doctor" form, (7) Dr. Yazdi’s curriculum vitae, and (8) a copy of the notice of hearing provided to Mahan in January 2020. The Board offered no testimonial evidence from witnesses.

¶ 10 The job description for the Marion Police Department described the nature of the work, the essential job functions, and typical duties of a police officer. The job description included tasks, such as, but not limited to, responding to calls for emergency help, assisting in criminal apprehension, providing back-up to officers in need of help, initiating the use of non-lethal means of apprehension, being cautious of when and how to operate a vehicle in a highspeed situation, keeping personal safety in mind when pursuing on foot, and being aware of the public and their need to feel safe and secure. The job description indicated that to be qualified to serve as a police officer, one must have the physical abilities to perform the duties of a police officer. The individual must also be in good health and "meet standards set forth by state statutes."

¶ 11 The letter from the Board’s attorney to Dr. Yazdi requested that he per- form an IME to determine whether Mahan remained disabled or to what extent his condition had improved and to provide a detailed opinion related to Mahan’s health status regarding his thoracic spine injury. The letter further requested that Dr. Yazdi include the following information: (1) Mahan’s condition when first seen by Dr. Yazdi, (2) Mahan’s history as taken by Dr. Yazdi, (3) Dr. Yazdi’s diagnosis of Mahan’s condition, (4) Dr. Yazdi’s interpretation of X-ray films, if taken, (5) Dr. Yazdi’s prognosis of Mahan’s condition, including Dr. Yazdi’s opinion as to whether Mahan suffered from any temporary or permanent injury or disability that prevented him from performing the duties of a police officer, (6) Dr. Yazdi’s opinion concerning further treatment and whether physical therapy, surgery, or other treatment would improve Mahan’s condition, allowing him to return to work as a police officer, and (7) all materials reviewed by Dr. Yazdi in preparation of the IME. The attorney’s letter also included a copy of the job description and a "Certification of Doctor" form. Additionally, Dr. Yazdi received a copy of the circuit court’s April 4, 2019, order, although the record is unclear as to who provided him with a copy of the order.

¶ 12 Dr. Yazdi’s 2020 IME report provided a brief history of Mahan’s 2011 injury as well as Mahan’s lumbar spine injury. Dr. Yazdi reviewed the Marion Police Department job description, a 2011 MRI of the thoracic spine, Dr. Rerri’s 2012 IME report, medical records related to Mahan’s lumbar spine injury, and the circuit court’s April 4, 2019, order. Dr. Yazdi also reviewed a cervical spine MRI, dated April 13, 2010, and another MRI of the cervical spine, dated October 16, 2011. Dr. Yazdi found that these two MRIs looked "exactly the same." Dr. Yazdi indicated that, in 2018, he spent 1½ hours reviewing records and films and 1¼ hours with Mahan. Dr. Yazdi further indicated that, in 2020, he spent 4½ hours reviewing records and gathering appendices and saw Mahan for 1 hour in his office.

¶ 13 Dr. Yazdi’s physical examination of Mahan indicated the following: "Motor examination in [sic] intact except for left EHL at 4+/5. Sensory is intact throughout. There is no atrophy. DTR 2 + throughout. Straight leg raising is negative. His posture is normal. His gait is intact." Dr. Yazdi noted tenderness and limited range of motion due to pain in the lower cervical facet area. Dr. Yazdi reported that Mahan suffered a loss of cervical range of motion in the following areas: 33% in left lateral bending, 13% in right rotation, and 25% in left rotation. Dr. Yazdi...