Samuels v. Retirement Board of the Policemen's Annuity & Benefit Fund

No.  1--96--3559

KATHY F. SAMUELS,                       )    Appeal from the 
                                        )    Circuit Court of
     Plaintiff-Appellee,                )    Cook County.
                                        )
                                        )
          v.                            )
                                        )
                                        )
THE RETIREMENT BOARD OF THE POLICEMEN'S )
ANNUITY AND BENEFIT FUND, CITY OF       )
CHICAGO, et al.,                        )    Honorable 
                                        )    Thomas P. Durkin,
     Defendants-Appellants.             )    Judge Presiding.


     JUSTICE BURKE delivered the opinion of the court:
     Defendant, the Retirement Board of the Policemen's Annuity and
Benefit Fund (Board), appeals from the circuit court's reversal of
the Board's decision granting plaintiff Kathy Samuels, a Chicago
police officer, duty disability benefits but limiting the benefits
to 50% of her base salary, based on the court's determination that
the Board's decision was contrary to the manifest weight of the
evidence.  On appeal, the Board argues that the trial court abused
its discretion in substituting its judgment for the Board's and,
alternatively, that the Board's decision was not against the
manifest weight of the evidence and that the Board properly
interpreted the Pension Code (40 ILCS 5/5--1554 (West Supp. 1996))
in making its decision.  For the reasons set forth below, we reverse.
     On December 1, 1992, Officer Samuels was on duty, when, while
separating two combatants, she was injured when one of the
combatants fell on her and she fell backwards and struck her head
and right rear shoulder area against a door frame (on-duty injury). 
At the time of this incident she felt extreme pain.  Later that
evening she filed an "Injury on Duty Report."  At the completion of
her duty on the morning of December 2, she received emergency
medical attention at Ravenswood Hospital.  After being released
from the hospital she went to see Dr. James Bransfield, the chief
surgeon of the Chicago police department.  He scheduled "MRIs"
(magnetic resonance imaging) for her but did not examine her.  
     Dr. S. Nadimpalli, a radiologist, took MRIs of Samuels' back
and head on December 4, 1992.  Dr. Nadimpalli reported that the MRI
of Samuels' thoracic vertebrae revealed mild disc degeneration at
T6-7 and T7-8 levels, but no herniation.  On the MRI of her
cervical spine, Nadimpalli found as follows: "[p]osterior and
centrally budging discs at C4-5, C5-6 and C6-7 levels.  Mild
impingement on anterior surface of the spinal cord at C4-5 and C5-6
levels.  No evidence of spinal stenosis or nerve root compression."
The MRI of Samuels' brain was normal.  On December 16, 1992,
Samuels' supervisor entered a report of medical absence on behalf
of Samuels.  
     Dr. Bransfield subsequently referred Samuels to Dr. Francisco
Gutierrez, an assistant professor of neurosurgery at Northwestern
University Medical School.  Gutierrez wrote reports detailing his
examinations and treatment of Samuels on December 16, 1992, January
28, 1993, March 15, 1993, June 16, 1993, September 2, 1993, and
December 8, 1994.  During his treatment of her, Gutierrez found
that Samuels' initial MRIs showed a herniated disc at C4-C5 and C5-
C6 that was compressing her spinal cord and degenerative disc
disease at C4-C5 and C5-C6.  According to Gutierrez, Samuels' later
MRI showed "a questionable, tiny, left paramedian protruding
herniated nucleus pulposis at C6-C7," which did not have
"significant impression on the thecal sac or impinge on the spinal
cord."  Gutierrez further found that there was no "elecromyographic
evidence for radiculopathy," but that radiculopathy was not ruled
out and that Samuels had limitation in her neck's range of motion. 
Gutierrez concluded that Samuels' complaint of "paresthesia" in her
hands was likely in part related to carpal tunnel syndrome. He
recommended that Samuels receive physical therapy, a myelogram and
CT scan, and finally, surgery.  
     On February 3, 1993, Samuels's supervisor entered a second
report of medical absence for Samuels.  On February 15, 1993 and
December 28, 1994, Samuels was examined by Dr. Alan Hirsch, a
neurologist. He reported his impression of Samuels' condition as
 post traumatic cephalgia  and  cervical herniated nucleus
pulposus.  He found that Samuels' MRIs "revealed a herniated
nucleus pulposus C4-5 and C5-6 with an impingement on the spinal
cord at C4-5 and C5-6 levels" and that tests revealed "delayed
nerve conduction velocity in right upper extremity consistent with
peripheral nerve dysfunction."  Hirsch reported that "[a]t this
point in time there has been neurologic loss and intractable pain"
and found that based on these results, Samuels was not able to
return to police duty. Hirsch did not recommend surgery or a
myelograph initially, but stated that it could be an option later. 
     Samuels received notice to return to work on July 23, 1993, on
convalescent duty.  However, Samuels was unable to work and, on
August 17, Samuels' supervisor entered a third report of medical
absence.  
     On July 29, 1993, Dr. Louis Pupillo, a neurosurgeon, sent a
report to Dr. Bransfield regarding his examination of Samuels. 
Pupillo's impressions were that Samuels had myofascial pain
syndrome "superimposed" on chronic, preexisting degenerative disc
disease.  He found no evidence of a herniated disc, radicular
compression or spinal cord compression.  He determined that if
Samuels' myofascial pain syndrome continued for more than a year,
he would consider spinal fusion, but that a conservative treatment
was currently appropriate.
     On April 27, 1994, Dr. Bransfield sent an interoffice
communication to the director of the police department's personnel
division, the executive secretary of the Board and to Dr. S. David
Demorest, a general practitioner who worked for the Board, in which
he stated that Samuels was unable to perform unrestricted police
duties because she had a central herniated disc at C5-C6 with
associated cervical radiculopathy.  This memorandum showed that
Samuels was to be assigned a disability pension, effective May 5. 
On May 25, Samuels was examined by Dr. Demorest.  He concurred with
Dr. Pupillo s finding of myofascial pain syndrome and chronic,
preexisting  degenerative disc disease.  Demorest wrote a report on
June 9, again detailing his examination of Samuels and his review
of her medical history.
     On July 28, 1994, the Board held a hearing on Samuels' claim
for duty disability benefits.  Samuels was represented by counsel. 
Samuels described the incident during which she was injured and her
physical complaints.  She testified that she never had problems
with her back and was very active prior to her on-duty injury.  She
stated that she was currently very limited in her activities and
had a difficult time doing simple tasks.  She further stated that
since her on-duty injury, the police department had sent her to
four doctors:  Gutierrez, Hirsch, Pupillo, and Demorest.  She also
saw a doctor in the emergency room at Ravenswood Hospital and Dr.
Bransfield.  She contended that Dr. Pupillo's examination was
cursory and incomplete. She disagreed with Dr. Pupillo's report
which stated that she was suffering from preexisting degenerative
disc disease.  She further stated that she wanted to go back to
work, but did not feel able.  
     The Board and Samuels' attorney discussed the fact that
Samuels' normal health insurance would not cover her disability
because it was work-related.  Samuels further testified that she
had not seen a doctor or had physical therapy since September 1993
because her medical time had expired, she could not use her regular
medical insurance because her disability was work-related and she
could not afford to pay for this care herself, and she was under
the impression that the police department did not want her to use
her own doctor.  The hearing was then continued.
     On September 22, the hearing recommenced. Dr. Pupillo
testified that he examined Samuels and reviewed her MRIs.  He did
not review any other medical reports.  He found that Samuels had
preexisting, chronic degenerative disc disease and myofascial pain
syndrome "related temporally" to her on-duty injury and that her
pain was not necessarily related to her back problems.  He felt
that Samuels should not work as a police officer.  He stated that
Samuels' cervical herniated disc was related to her degenerative
disc disease.  He did not find evidence of a cervicular
radiculopathy.  He stated that if Samuels' pain did not clear up
within a year, a cervical fusion operation would be discussed.  He
stated that approximately 90% of people have degenerative disc
disease and that it does not cause the majority of people to be
disabled.  Pupillo further stated that the myofascial pain syndrome
was related to Samuels' on-duty injury.  He also stated that
Samuels was now disabled, but agreed that Samuels was not disabled
prior to her on-duty injury and that, but for that injury, Samuels
would still be able to perform her police duties. 
     Dr. Bransfield testified that his diagnosis of Samuels'
condition was a central herniated disk at C5-C6 with associated
cervical radiculopathy.  He did not examine Samuels, but instead
did a synthesis of what Drs. Nadimpalli, Gutierrez, Hirsch and
Pupillo told him.  He stated that Samuels was unable to perform her
police duties. 
     Dr. Demorest testified that he reviewed all of the other
doctors' reports.  His opinion was that Samuels' herniated disc
predated her on-duty injury, but the myofascial pain syndrome was
caused by that injury.  He stated that his diagnosis was similar to
Dr. Pupillo's, he did not see Samuels' MRIs and that he was not
qualified to interpret MRIs, and that it was his opinion that
surgery and spinal fusion were unnecessary.  He further stated that
95% of his patients have degenerative disc disease and that he felt
that Samuels could return to work. 
     On September 22, the Board denied Samuels' claim for duty
disability benefits and concluded that she could return to work. 
After the Board's decision, Samuels filed a complaint for
administrative review in the circuit court, but later withdrew her
complaint and petitioned the Board to reappear before it to advise
it of new matters, specifically the fact that the police department
had subsequently refused to accept her return to active duty.  The
Board granted Samuels' petition.
     Prior to the second hearing, on February 13, 1995, Samuels was
seen by Dr. Leonard Cerullo, a neurosurgeon.  He found that
Samuels' MRIs showed mild disc degeneration at T6-T7 and T7-T8 and
that there was no evidence of a herniated disc in the thoracic
spine.  He also found that Samuels had bulging discs at C4-C5, C5-
C6 and C6-C7 and an impingement on the  spinal cord at C4-5 and C5-
6.  His examination revealed "a moderate degree of paracervical
muscle spasm," "a marked limitation of range of motion in all
directions," "significant cervical dysfunction with a question of
right-upper rib dysfunction and pain-induced movement patterns,"
and that Samuels holds her head in an "antalgic position."  Dr.
Cerullo concluded that Samuels was unable to return to work.
     On April 17, 1995, Dr. Demorest wrote a third report in which
he stated that there was no clear-cut evidence of cervical
radiculopathy and that Samuels had carpal tunnel syndrome unrelated
to her on-duty injury.  According to Dr. Demorest, Samuels'
problems were mostly subjective complaints of pain.  He found that
there was muscle spasm, but agreed with Dr. Cerullo that Samuels
had "pain induced movement patterns" and that a pain management
program would benefit her.  Dr. Demorest again found that Samuels
did not need surgery.
     On July 22, 1995, Dr. Hirsch sent a letter to Dr. Bransfield,
detailing his examinations of Samuels from February 15, 1993 to
June 12, 1995.  He stated that at each exam, Samuels complained of
severe pain and a decreased range of motion in her neck.  As time
went on, she also had dizziness accompanied by nausea and vomiting,
vertigo, headaches accompanied by nausea and vomiting, vision
problems, hearing problems, numbness in her arms and hands,
decreased mobility and gait problems.  Hirsch concluded that
Samuels had cervical radiculopathy, post-traumatic cephalgia, and
bulging cervical disk with impingement on the spinal cord.  He
found that her later MRI showed degenerative disc changes at C4-C5,
C5-C6 and C6-C7, with stenosis of the spinal canal and deformity of
the spinal cord.  The MRI also showed that the lodortic curve of
Samuels' cervical spine had straightened, consistent with trauma
induced spasm.  Hirsch further found that the bulging and Samuels'
current condition was "related to" her on-duty injury.
     On August 8, 1995, Dr. Alfred Akkeron saw Samuels for an
orthopedic evaluation.  He reported that his orthopedic and
neurological examination of Samuels had been normal.  Her MRIs
showed degenerative disc disease. He believed that Samuels'
degenerative disc disease preexisted her on-duty injury and that it
had progressed over the years to her present condition.  He
concluded that in all of the records, the only objective finding
was of a neck muscle spasm.  He stated that none of the doctors
found neurological defects.  According to Akkeron, Samuels could
return to work and no longer needed physical therapy.
     On August 14, 1995, Dr. Kevin McCoyd, a neurologist, sent a
letter to the Board regarding his examination of Samuels and his
review of her records.  He found that she had a chronic pain
syndrome, disc degeneration and  some bulging.   He also found
signs of carpel tunnel syndrome.  He stated that because Samuels
had no complaints prior to her on-duty injury, it was reasonable to
assume that her problems were "secondary to the injury and may well
be contributing to the pain."  He concluded that any benefit from
surgery would be small.  McCoyd further stated that Samuel's
ability to work was only limited due to her subjective complaints
of pain.  He suggested she wear a wrist splint for carpel tunnel
syndrome.
     On August 30, 1995, Samuels was examined by Dr. Dennis Gates,
an orthopedic surgeon.  His diagnosis was that she had a herniated
disc in her cervical spine.  He recommended that she have the
cervical fusion and laminectomy operation by Dr. Cerullo and that
she continue to see Dr. Hirsch.
     On September 1, 1995, Samuels was again sent to Dr. Cerullo. 
After the examination and a review of her MRI, Cerullo found that
Samuels' symptoms were "related to" her on-duty injury and that she
had exhausted her conservative options and should consider surgery. 
     On March 2, 1995, the medical administrator of the police
department sent a letter to the Board, stating that Samuels applied
for reinstatement, but was denied on the basis of findings from
three examinations by Drs. Gutierrez, Hirsch and Cerullo,
indicating that she had "marked limitation of motion of the
cervical spine, abnormal EMG, and abnormal MRI at C6-C7" and an
"indication for peripheral nerve dysfunction in the upper right
extremity."  
     On September 28, 1995, the Board held a second hearing on
Samuels' claim for duty disability benefits.  The additional
medical reports from Drs. Hirsch, Gutierrez, Cerullo, Akkeron,
McCoyd, and Gates were included in the record.  Samuels testified
that she had herniated discs at C4-5, C5-6 and C6-7 and saw Drs.
Hirsch, Cerullo and Gates for treatment, she was scheduled for
surgery, and she saw Drs. Akkeron and McCoyd at the request of the
Board.  Samuels further stated that at the time of the hearing she
had been out of work without pay for a year and with half-pay for
five months.  She also stated that because of her financial
condition she could not afford to have her doctors testify because
their rates were too expensive. 
     Dr. Demorest testified that he was a board certified family
practitioner and that he had reviewed the reports of Drs. Cerullo,
Hirsch and Gutierrez, but felt it necessary to have additional
doctors, McCoyd and Akkeron, see Samuels.  Demorest's opinion was
that Samuels' injuries were not a direct result of her on-duty
injury.  He found that Samuels had a soft tissue problem and that
there was evidence on her MRI that the condition was preexisting. 
Demorest testified that a herniated disc can be caused by trauma or
degenerative disc disease and that the herniated disc, by itself,
does not imply a medical problem.  He stated that for a herniated
disc to be a problem, the disc would be pushing on a nerve, a
radiculopathy, which Samuels did not have.  He also stated that
straightening of the spine can be caused by muscle spasm.  Dr.
Demorest believed the herniated disc was caused by the degenerative
disc disease but could not say whether or not Samuels' on-duty
injury caused the herniated disc.
     Dr. Akkeron testified that he was a board qualified orthopedic
surgeon and that the Board had asked him to examine Samuels.  He
reviewed Samuels' MRIs and the packet sent to him by the Board and
found that her degenerative disc disease predated her on-duty
injury.  Akkeron explained that he knew Samuels had degenerative
disc disease because she had disc space narrowing and bulging.  He
found no herniated discs and stated that none of the other doctors
found a herniated disc.  He further stated that Samuels was capable
of going back to work notwithstanding her on-duty injury, but that
she could not go back to work because of the degenerative disc
disease.  According to Dr. Akkeron, Samuels was disabled. 
     On December 15, 1995, the Board ruled that Samuels' would
receive a duty disability benefit at 50% of her base salary under
the Pension Code.  The Board filed its amended order on December
28, 1995.  In its findings, the Board discussed portions of the
doctors' reports and testimony which it had considered in making
its decision.  They were as follows.  Gutierrez uncovered no
neurological deficiencies or any evidence of cervical
radiculopathy, but he found some abnormalities on Samuels' MRIs and
recommended conservative treatment.  Dr. Hirsch diagnosed a
diminished range of motion in Samuels' spine.  While Dr. Pupillo
found some tenderness in Samuels' cervical and thoracic paraspinus
muscles, "the remainder of his examination was normal noting that
the abnormalities on the cervical spine were chronic."  Dr. Pupillo
diagnosed Samuels with myofascial pain syndrome and chronic,
preexisting degenerative disc disease.  Dr. Demorest also found
that Samuels' complaints consisted mostly of myofacial pain
syndrome which did not prevent her from working.  Dr. Cerullo
reported a moderate degree of paracervical muscle spasm and that
"[t]he remainder of his exam was apparently normal with a finding
that 'Samuels' could not return to work."  Dr. Gates diagnosed a
herniated disc in Samuels' cervical spine at C5-6.
     The Board also made substantial findings based on Dr.
Akkeron's testimony.  It discussed how he did not find a herniated
disc, but did find degenerative disc disease at C4-C5 and C5-C6
which "was present at the time of [Samuels'] accident on December
1, 1992"; Dr. Akkeron testified that all of the medical reports and
the MRIs referenced the degenerative disc disease; Dr. Akkeron
noted that Samuels' on-duty injury could not have produced the
degenerative disc disease; and Dr. Akkeron concluded Samuels could
not return to work because of the degenerative disc disease. 
     Based on the foregoing, the Board concluded that: (1) Samuels
sustained an injury on December 1, 1992, during an act of duty; (2)
Samuels' current disability, degenerative disc disease, prevented
her from returning to work; and (3) Samuels' inability to return to
work was a result of a physical defect, degenerative disc disease,
that existed at the time her on-duty injury was sustained.  The
Board concluded that Samuels' disability preceded her on-duty
injury and ordered that she receive a duty disability pension in
the amount of 50% of her base salary.
     On February 2, 1996, Samuels filed another complaint for
administrative review.  After the parties briefed the issues, the
trial court heard arguments on September 13, 1996.  Thereafter, the
trial court stated that the issue before it was "whether or not the
record reflect[ed] that the injury [was] the result of a
preexisting condition or not."  The trial court found that the
evidence showed Samuels was not disabled in any way prior to her
on-duty injury and had been an active person.  It further found
that after the injury, Samuels' doctors diagnosed a herniated disc,
and that at least one doctor recommended surgery. The trial court
stated that it appeared "that the Board relied exclusively" on Dr.
Akkeron's and Dr. Demorest's findings but that these findings were
not sufficient to support the Board's conclusion given the
testimony by the other doctors and Samuels' change from an active
person to a disabled person after her on-duty injury.  The trial
court then entered an order reversing the Board's decision and
remanding the case to the Board.  This appeal followed.
     It is well settled that "[u]nder administrative review law,
judicial review of an administrative agency's decision extends to
all questions of law and fact presented by the entire record and
the agency's conclusions on questions of fact shall be held to be
prima facie true and correct.  ***  As a general rule, courts will
accord deference to the interpretation placed upon a statute by the
agency charged with its administration."  Sedol Teachers Union v.
IELRB, 276 Ill. App. 3d 872, 878, 658 N.E.2d 1364 (1995).  "In
reviewing the findings of an administrative agency, it is not the
function of this court to resolve factual inconsistencies or to
reweigh the evidence, but merely to determine whether the findings
are against the manifest weight of the evidence."  Caliendo v.
Martin, 250 Ill. App. 3d 409, 416, 620 N.E.2d 1318 (1993).  "A
decision is contrary to the manifest weight of the evidence only
where the reviewing court determines, viewing the evidence in the
light most favorable to the agency, that no rational trier of fact
could have agreed with the agency.  ***  If there is any competent
evidence supporting the agency's determination, it should be
affirmed."  Scadron v. Zoning Board of Appeals, 264 Ill. App. 3d
946, 949, 637 N.E.2d 710 (1994).  
     In the present case, the parties dispute the meaning of
section 5--154 of the Pension Code (40 ILCS 5/5--154 (West Supp.
1996)).  Section 5--154 states, in pertinent part, 
          "An active policeman who becomes disabled on
          or after the effective date as the result of
          injury incurred on or after such date in the
          performance of an act of duty, has a right to
          receive duty disability benefit during any
          period of such disability for which he does
          not have a right to receive salary, equal to
          75% of his salary, as salary is defined in
          this Article, at the time the disability is
          allowed ***; provided that, if the disability
          resulted from any physical defect or mental
          disorder or any disease which existed at the
          time the injury was sustained, *** the duty
          disability benefit shall be 50% of salary as
          defined in this Article. ***"  (Emphasis
          added.)
          The Board construes section 5--154 to mean that if a police officer
is injured while engaged in an act of duty and the injury
exacerbates or otherwise makes active a preexisting condition and
the base cause of disability is the preexisting condition, the
officer is entitled to the 50% benefit level.  Samuels contends,
however, that the term "resulted from" in section 5--154 implies
causation, not exacerbation, and requires the Board to consider
whether, "but for" the injury, Samuels' disability would not have
occurred.  Samuels also argues that public policy requires that
duty disability pension systems for policemen and firemen be
liberally construed in favor of the pensioner.  
     "In construing a statute, a court must ascertain and give
effect to the legislature's intent in enacting the statute.  *** 
The statutory language used by the legislature is usually the best
indication of the intent of the drafters.  ***  Such language is to
be given its plain or ordinary and popularly understood meaning
***."  Collins v. Board of Trustees, 155 Ill. 2d 103, 110-112, 610 N.E.2d 1250 (1993).  If the language of a statute is clear and
unambiguous, the court must enforce it as written.  Gabriel
Builders v. Westchester Condo., 268 Ill. App. 3d 1065, 1068, 645 N.E.2d 453 (1994).
     We find that section 5--154 is unambiguous.  We interpret the
statute to provide duty disability benefits in two separate
instances:  (1) where a disability occurs as a result of (is caused
by) an on-duty injury; and (2) where a disability results from
(stems from) a preexisting condition as opposed to being caused by
the injury.  In the first instance, the  duty disability benefit is
75% of the officer's salary.  In the second instance, where the
disability "resulted from any physical defect or mental disorder or
any disease which existed at the time the injury was sustained,"
the duty disability benefit is 50% of the officer's salary. 
(Emphasis added.)  The statute does not include language stating
that, even if an officer has a physical defect, mental disorder or
disease prior to the subsequent on-duty injury, the officer is
entitled to a duty disability pension of 75% of salary if "but for"
the on-duty injury the disability would not exist.  Instead, under
the statute, the officer will be given a duty disability pension of
50% of his salary if the disability "resulted from" the preexisting
condition, notwithstanding the effect the on-duty injury may have
had on the preexisting condition.  We also briefly note that while
Samuels argues that "it is an axiom in statutory construction that
'resulted from' implies direct causation," she cites to no
authority in support of this statement and our research reveals
none.  In light of our holding, we need not address Samuels'
additional argument that public policy requires that duty
disability pension systems for police officers be liberally
construed in favor of the pensioner.    
     The Board's remaining arguments, which overlap, are that the
trial court erred in substituting its judgment for the judgment of
the Board in finding that Samuels' disability was caused by her on-
duty injury or, alternatively, that the Board's decision was not
contrary to the manifest weight of the evidence.  Samuels argues
that the trial court properly found that the Board's findings were
against the weight of the evidence because the evidence
overwhelmingly supported her contention that her disability was
caused by her on-duty injury and the Board ignored the reports of
several of the doctors in reaching its erroneous decision.  
     We agree with the Board that the trial court erred in
reversing the Board's decision.  Competent evidence was presented
supporting the Board's determination that Samuels' disability
resulted from her preexisting degenerative disc disease.  More
specifically, several of the doctors found that Samuels had
degenerative disc disease prior to her on-duty injury and Drs.
Akkeron and Demorest found that her disability resulted from the
degenerative disc disease.  Additionally, while Drs. Hirsch,
Pupillo, McCoyd and Cerullo found that Samuels' disability was
"related to" or "secondary to" her on-duty injury, the mere finding
of a relationship between that injury and her disability does not
contradict the findings of Drs. Demorest and Akkeron that her
disability resulted from the degenerative disc disease.  As
competent evidence was presented to support the Board's decision,
in viewing the evidence in the light most favorable to the Board,
we cannot say that a rational trier of fact would not have agreed
with the Board's decision.  Therefore, we hold that the trial court
erred in reversing the Board's decision as contrary to the manifest
weight of the evidence.
     Reversed.
     WOLFSON, P.J., and McNAMARA, J., concur.