Mulack v. Hickory Hills Police Pension Bd.

Page 259

625 N.E.2d 259

252 Ill.App.3d 1063, 192 Ill.Dec. 299

Gerald MULACK, Plaintiff-Appellee, v. HICKORY HILLS POLICE PENSION BOARD, Defendant-Appellant.

No. 1-92-0988.

Appellate Court of Illinois First District, Sixth Division.

Sept. 3, 1993.

Sklodowski, Franklin, Puchalski & Reimer, Chicago (Robert L. Sklodowski and Richard J. Puchalski, of counsel), for defendant-appellant.

Smolin, Blum & Brandwein, Chicago (David M. Smolin, of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

The Hickory Hills Pension Board (Board) appeals from an order of the circuit court which held that injured police officer Gerald Mulack, plaintiff, was not required to submit to surgery in order to receive a line-of-duty pension under section 3-114.1 of the Pension Code (Ill.Rev.Stat.1991, ch. 108 1/2, par. 3-114.1). The appellate court has jurisdiction under Illinois Supreme Court Rule 301 (134 Ill.2d R. 301).

Plaintiff raises two issues for our review: (1) whether the Board erred as a matter of law by holding that the plaintiff must submit to reasonable treatment in order to promote his recovery, as a condition to receiving a duty disability pension; and (2) whether the Board's factual finding that plaintiff had not undergone reasonable treatment was against the manifest weight of the evidence.

On August 31, 1990, plaintiff applied for a line of duty disability pension pursuant to the Pension Code (Ill.Rev.Stat.1991, ch. 108- 1/2, par. 3-114.1). Two hearings were held by the Pension Board concerning plaintiff's disability claim. Evidence at the first hearing, held March 1, 1991, established that the plaintiff had injured himself while engaged in a foot chase of a fleeing suspect on April 10, 1990. Plaintiff's injury was diagnosed as a tear of the posterior medial meniscus of the right knee.

As required by the Pension Code (Ill.Rev.Stat.1991, ch. 108- 1/2, par. 3-115), plaintiff was examined by three physicians selected by the Board. Each doctor concluded that plaintiff was disabled in the line of duty. Dr. John J. Dwyer initially recommended further testing to determine whether a "work hardening program" would be suitable treatment so as to allow plaintiff to return to his duties. Following testing, however, Dr. Dwyer concluded that plaintiff was not fit for work hardening, and recommended extensive physical therapy as a prelude to work hardening therapy. Dr. David L. Spencer recommended that plaintiff be placed on disability until his meniscus healed or could be surgically removed. The third doctor, Dr. James W. Ryan, concluded that plaintiff should have surgery to correct his knee and expressed doubt that more conservative treatment would be effective.

Also submitted into evidence were documents from other physicians. Dr. Craig H. Jacobus, a chiropractic physician and plaintiff's treating doctor, indicated that plaintiff was undergoing physical therapy, would not be able to perform regular duty and would have to consider surgery in order to regain normal knee mechanics. Dr. S.I. Yen, a consultant in orthopedic surgery, also concluded that arthroscopic surgery could not be avoided, but that there would be no harm in waiting to see what effect the physical therapy would have. Finally, Dr. Michael J. Liston examined plaintiff and concluded that plaintiff was too sore to return to work. Dr. Liston similarly concluded that "there would be no harm in giving [plaintiff] more time in therapy and see if it will heal on its own."

After all the medical evidence had been submitted, the Pension Board heard from both Dr. Spencer and plaintiff. Dr. Spencer testified first. He testified that plaintiff had a simple torn cartilage and that treatment of the injury would require an arthroscopic surgical procedure. Dr. Spencer stated that if no other significant injury was found, plaintiff could return to work in approximately six weeks. When asked about the risks involved in such treatment, Dr. Spencer described the procedure as a "lead pipe cinch" with a 95% -plus rate of success. According to Dr. Spencer, the procedure could be done on an out-patient basis and could be done with either general anesthesia or through use of a spinal epidural. Dr. Spencer also indicated that plaintiff's injury would grow worse without such treatment.

Plaintiff testified next and recounted how he was injured and the course of his treatment. He testified that he was taking physical therapy twice a week at Dr. Jacobus's office and did work on his own at home, including electronic stimulation. He testified that he had considered surgery to correct his injury, but had concluded that the more conservative measures were the best approach at that time. He testified that this decision was based upon the fact that none of the doctors could give him a 100% chance of full recovery and that he was afraid that additional surgeries would be required. He also expressed fear that he might not wake up after receiving anesthesia. Plaintiff stated that he had experienced slight improvement in his injury after undergoing physical therapy and that he intended to continue treatment in this way, although he was unable to estimate when he would be willing to have surgery should his condition persist.

On May 3, 1991, the Board rendered its decision which stated in part:

"The evidence here indicates that surgery will eventually be required and the surgery here is safe, efficient and would result in the return of Officer Mulack to police service. The applicant's own physician has indicated that knee surgery is necessary. Failure to have this surgery can further damage Officer Mulack's knee.

Officer Mulack has offered no compelling reason as to why he will not submit to such surgery. There is no evidence that the therapy Officer Mulack is undergoing will correct his knee injury. Indeed, it is the applicant's own treating physician who indicates that orthoscopic surgery cannot be avoided.

In light of the above, it is the Pension Board's decision that Officer Mulack should take steps to have his knee surgically corrected. The Board will grant Officer Mulack a duty disability for ninety (90) days in order for him to have his knee condition remedied. In the event that this condition is not remedied, the Pension Board will take whatever action deemed appropriate at that time."

The Board then awarded plaintiff a line-of-duty disability pension commencing April 1, 1991.

The plaintiff declined surgery following the Board's decision. The ninety day period passed and the Board continued paying duty disability benefits. On September 16, 1991, the Board held a second hearing to afford plaintiff the opportunity to review the status of his knee condition and to determine what steps, if any, had been taken to remedy plaintiff's condition.

Prior to convening this second hearing, the Pension Board had Dr. Spencer re-examine plaintiff. In a letter dated August 23, 1991, Dr. Spencer indicated that plaintiff reported his knee was improving. Dr. Spencer's letter indicated, however, "exaggerated complaints of pain * * * that does not correlate with the range of motion of his knee when he is sitting in the examining room, walking and standing normally." Dr. Spencer again recommended surgery. The Board did not send plaintiff to either Drs. Dwyer or Yen for re-evaluation.

At the hearing all of the evidence and exhibits from the initial hearing were incorporated as part of the second proceeding. In addition, plaintiff submitted a letter from Dr. Jacobus who indicated that he was progressing with conservative care and that his prognosis was fair. Plaintiff also submitted a note from Dr. Liston which indicated that plaintiff was still unable to perform his duties as a police officer. Plaintiff testified that he was still undergoing conservative treatment but that he and his physician had not yet elected to remedy his condition through surgery. Plaintiff did indicate that at some future point he would make a decision concerning surgery, but he did not know when that time would be.

On September 23, 1991, the Board terminated plaintiff's disability pension, finding that plaintiff had a correctable physical condition that he unreasonably refused to have remedied. The Board stated in its decision:

"The issue in this case is whether a pension board must continue to pay disability benefits to a pension beneficiary who unreasonably refuses to have his physical condition safely and efficiently corrected. It is the Board's position that this question must be answered in the negative.

As we pointed out in our initial order, an individual must take such treatment as a reasonably prudent man would take to correct a remediable condition and the inexcusable failure to do so precludes a finding of disability.

The weight of the evidence indicates that arthroscopic surgery is routine, common, safe and very effective way to remedy Officer Mulack's knee problem. This type of surgery is done on an outpatient basis and there is a 95% -plus, success rate. Officer Mulack does not claim that he cannot afford the treatment or that this procedure is against his religious beliefs; Officer Mulack just refuses to have the surgery done."

On October 8, 1991, plaintiff filed a complaint in the circuit court for administrative review (Ill.Rev.Stat.1991, ch. 110, par. 1-103).

The parties briefed the issues and argued the case on February 20, 1992. On March 12, 1992, the circuit court reversed the Board's decision and reinstated plaintiff's pension benefits. In its decision, the court noted that the Pension Code was unlike the Workers' Compensation Act (Ill.Rev.Stat.1991, ch. 48, par. 138.1 through 138.30), which has a specific provision requiring a claimant to submit to reasonable treatment as a condition of receiving benefits. (See Ill.Rev.Stat.1991, ch. 48, par. 138.19(d).) The court determined that the Pension Code has no similar requirement. Moreover, the court stated that...