Olson v. Lombard Police Pension Fund

2020 IL App (2d) 190113

146 N.E.3d 783

438 Ill.Dec. 714

Terry OLSON, Plaintiff-Appellant,

v.The LOMBARD POLICE PENSION FUND and the Village of Lombard, Defendants-Appellees.

No. 2-19-0113

Appellate Court of Illinois, Second District.

Opinion filed January 23, 2020

Jerome F. Marconi, of Chicago, for appellant.

Charles H. Atwell, of Atwell & Atwell Law Offices, of Aurora, for appellee Lombard Police Pension Fund. James V. Ferolo and Carmen P. Forte, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for other appellee.

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

¶ 1 This administrative review action was brought by plaintiff, Terry Olson, from the denial of his application for a line-of-duty disability pension, pursuant to section 3-114.1 of the Illinois Pension Code (Code) ( 40 ILCS 5/3-114.1 (West 2018) ) by defendant, the Lombard Police Pension Fund, through an action of its Retirement Board (Board). The Board allowed the Village of Lombard (Village) to intervene in the proceedings. The Board determined, by a preponderance of the evidence, that plaintiff's disability to his lower back was neither caused by, nor aggravated by, his on-duty activities on September 18, 2013. The Board denied plaintiff line-of-duty benefits. The trial court affirmed the Board's decision. Plaintiff appeals the Board's finding denying his application for line-of-duty disability benefits. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff filed an application for a line-of-duty disability pension on July 29, 2015, based on an incident that occurred at work on September 18, 2013 (the incident). Plaintiff alleged that on that date he sustained injuries to his lower back and to his left leg while engaged in a foot chase to apprehend a criminal suspect.

¶ 4 Plaintiff had been a Lombard police officer since July 6, 1987, working for approximately 29 years. While a police officer, plaintiff also owned and operated a construction company involving excavation and demolition work. Plaintiff testified that his side business was authorized by the Lombard Police Department (Department). He stated that after the incident, he did not perform any heavy-duty work.

¶ 5 Prior to the incident, plaintiff had experienced back pain three times. In 1998, plaintiff injured his back in a car accident. In February 2001, plaintiff experienced "sharp" lower back pain while removing his gun from its holster. He had to seek treatment in the Good Samaritan Hospital emergency room. In June 2013, approximately three months prior to the incident, plaintiff sought treatment at Edward Hospital for severe lower back pain that he experienced after walking in his kitchen and reaching for coffee from his microwave. At the hospital, plaintiff mentioned that he had been dealing with back pain intermittently for 15 years.

¶ 6 On September 18, 2013, while on duty, plaintiff responded to the scene of a residential burglary. When he arrived at the scene, plaintiff saw the suspect, who immediately fled. Plaintiff chased the suspect over a sidewalk, an asphalt parking lot, an asphalt roadway, grass, dirt, a concrete curb, and a parkway. With the help of two officers, plaintiff apprehended the suspect but fell to the ground in the process. Plaintiff stated that, while chasing the suspect, he felt a sharp pain in his left leg. Plaintiff stated that his leg pain worsened, and he started to feel back pain. After he apprehended the offender, plaintiff could not stand due to the pain. A supervisor called for paramedics. The ambulance report shows that plaintiff complained of pain in his leg, but there is no evidence of any complaint about his back.

¶ 7 Plaintiff was treated in the emergency room of Elmhurst Hospital. He testified at the hearing before the Board that during his treatment, he alerted the medical staff of an injury to his lower back. Plaintiff testified that the emergency physician attended to his leg, "flipped" him over, and attended to his "backside [sic ]."

¶ 8 The emergency room records, however, reveal no treatment or examination of plaintiff's lower back. The records reflect a diagnosis of only a "left hamstring strain." During cross-examination, plaintiff conceded that, while at the emergency room, he did not receive treatment to his lower back or a diagnosis regarding his lower back.

¶ 9 On September 25, 2013, plaintiff completed and filed with his employer an "Illinois Form 45: Employer's First Report of Injury." Plaintiff reported that he sustained an injury to his left leg. Counsel stated during oral argument that plaintiff also noted on the form that he sustained an injury to his back. However, there is no evidence in the record to support counsel's claim. Also, according to the Board's decision and order, plaintiff testified that he assisted in the preparation of an "Employee Statement of Incident," stating that, during the pursuit and struggle, he suffered a left hamstring pull and back pain.

¶ 10 A. Dr. William Galassi

¶ 11 Plaintiff testified that on September 25, 2017, five days after the incident, he was treated by Dr. William Galassi at Elmhurst Occupational Health. Galassi recommended that plaintiff follow up with physical therapy. Plaintiff testified that during that visit, he complained about his back. However, Galassi's records do not reflect any diagnosis or treatment relating to a back problem. On cross-examination, plaintiff admitted that Galassi provided treatment only for his left hamstring. Galassi saw plaintiff again about eight weeks after the incident, and he treated plaintiff for his left hamstring and knee pain.

¶ 12 B. Dr. Robert Hurst

¶ 13 Also, on September 23, 2013, plaintiff's internist, Dr. Robert J. Hurst, treated plaintiff. Although plaintiff testified that he complained about his back, Hurst's records do not mention any back pain experienced by plaintiff as a result of the incident.

¶ 14 C. Physical Therapy

¶ 15 Records from Athletico Physical Therapy (Athletico) reflect that plaintiff underwent physical therapy approximately 37 times from October 3, 2013, through January 6, 2014. At the hearing before the Board, plaintiff stated that he complained to Athletico during his initial evaluation about the discomfort in his left leg, left calf, left side, and back. The Athletico intake record confirms that plaintiff reported back pain. Plaintiff testified that during his physical therapy his left leg pain improved; however, his back pain became worse. Although the Athletico records do not reveal that plaintiff received any therapy or treatment to his lower back during his visits, they show a few instances where he complained of back pain during his treatment. For example, plaintiff complained of back pain on December 23, 2013, January 6, 2014, and March 5, 2014, when the therapist noted that plaintiff was discharged from physical therapy and directed to another provider for continued treatment of lower back symptoms.

¶ 16 D. Dr. Bonnie McManus

¶ 17 On October 19, 2013, plaintiff was treated by Dr. Bonnie McManus at Elmhurst Occupational Health. Plaintiff testified that he complained about his back, but the records show no complaints about his back. McManus initially treated plaintiff for knee pain, which was the result of a kneecap twist during therapy.

¶ 18 E. Dr. Christos Giannoulias

¶ 19 On November 26 and December 10, 2013, Dr. Christos Giannoulias of G&T Orthopedics and Sports Medicine treated plaintiff for knee and leg pain. Those records do not reflect any complaints relating to plaintiff's back.

¶ 20 F. Dr. Jerome L. Kolavo

¶ 21 On January 31, 2014, the Village, per plaintiff's workers' compensation claim, referred plaintiff to Dr. Jerome L. Kolavo, a pain specialist. Plaintiff testified that he told Kolavo that he had severe back pain on the date of the incident when he left the scene in the ambulance. Kolavo treated plaintiff with injections for his back. Kolavo's records of January 31, 2014, show that plaintiff denied that he had any "significant" history of lower back pain prior to the incident. Kolavo recommended physical therapy for leg and back pain, and plaintiff underwent treatment by Momentum Physical Therapy, from approximately February 6 to May 6, 2014.

¶ 22 G. Dr. Dalip Pelinkovic

¶ 23 Plaintiff testified that the therapists and the doctors had concluded from their notes that his back condition had plateaued. On September 23, 2014, about one year after the incident, plaintiff underwent surgery to his lower spine: an L4-5 transforaminal lumbar interbody fusion performed by Dr. Dalip Pelinkovic. Pelinkovic never opined that the incident made the back surgery necessary.

¶ 24 H. Dr. Scott Player

¶ 25 The Village sent plaintiff to Dr. Scott Player for an independent medical examination. Player examined plaintiff on May 28, 2014, and reported that plaintiff denied "performing any other work activities or recreational pursuits." Plaintiff also denied having a history of lower back problems before the incident. Player observed plaintiff, without plaintiff's knowledge, as he exited his office and walked about 150 feet toward the parking lot. Player stated that plaintiff demonstrated a fluid and flowing gait, with no hesitation as he walked hand in hand with his wife away from the office building, but when plaintiff became aware of Player watching him, plaintiff demonstrated a hesitant gait that resolved when he was unaware of observation. When asked on cross-examination if he feigned a limp, plaintiff eventually replied "No." Player found that plaintiff's symptoms were no longer related to the incident. He did not recommend further treatment, including surgery, in connection with the incident. Player believed that plaintiff's complaints stemming from the incident involved soft tissue and should have been resolved within a few months.

¶ 26 Player saw plaintiff a second time and issued another report on September 14, 2015, after plaintiff had undergone back surgery. Player noted that plaintiff's "current subjective complaints include lower...