Jackson v. Retirement Board
Annotate this Case
FOURTH DIVISION
December 4, 1997
No. 1-96-3979
VENDETTA JACKSON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
RETIREMENT BOARD OF THE POLICEMEN'S )
ANNUITY AND BENEFIT FUND OF THE )
CITY OF CHICAGO, )
) THE HONORABLE
Defendant-Appellee. ) JOHN K. MADDEN,
) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Vendetta Jackson, was appointed a member of the
City of Chicago Police Department on December 16, 1985, and was
injured in the course of training on January 24, 1986. On June
24, 1993, the Retirement Board of the Policemen's Annuity and
Benefit Fund of the City of Chicago (the Board) granted Jackson
full duty disability benefits.
On February 23, 1995, the Board held a disability status
review hearing. Prior to the admission of any substantive
evidence, Jackson objected to the proceedings based upon the fact
that two of the Board members resided in the same building in
which she resided and had provided the Board with information
regarding their own observations of Jackson's physical
activities. One of the Board members who lived in the same
building as Jackson was not present at the hearing. The other
Board member, Mr. Thulis, responded that he did not live in the
same building as Jackson but, nevertheless, voluntarily recused
himself from the hearing.
During the hearing, Jackson testified that as of June 24,
1994, the date when she was granted duty disability benefits, she
had been involved in physical therapy at River City Certified
Physical Therapy. She went there three times a week to maintain
her right leg at a certain performance level until she was
released into a maintenance home program around August of 1994.
Jackson further testified that she saw Dr. Preston Wolin at
Worker Rehabilitation Services in Chicago on December 5, 1994.
Jackson was evaluated for eight hours and a seven page report
concluded that Jackson's physical restrictions were permanent and
that she did not have the physical capabilities of returning to
work as a police officer. This report was submitted to the
Board. Dr. Wolin agreed with the conclusion of the report and
also submitted a letter to the Board regarding Jackson's August
5, 1994, visit.
When questioned by the Board, Jackson testified in pertinent
part, that she does not participate in physical sports but she
did participate in a neighborhood fund raiser which involved a
walkathon wherein she completed a three mile course in
approximately one hour. She further testified that walking is
part of her therapy and that she has three different braces she
uses for her knee, depending on the situation involved, and that
during this walkathon she was wearing a knee brace.
Dr. Alfred Akkeron, called by the Board, testified that he
examined Jackson on August 9, 1994, at his office in Melrose
Park. He testified that after reviewing Jackson's surgical
reports and his physical examination of her, it was his opinion
that she could return to her regular duties as a police officer.
On cross-examination, Dr. Akkeron testified that he did not
recall whether there was any descriptive report or information
with Jackson's records which outlined the physical requirements
and demands for a Chicago police officer. Dr. Akkeron further
testified that his report was inaccurate inasmuch as it indicated
that his exam was of Jackson's left knee. Dr. Akkeron
acknowledged that Jackson's injury was actually on the right
knee. He explained this discrepancy by stating that he did not
read his own report but merely signed it. Dr. Akkeron testified
that in reaching his opinion, he did not consider the opinion of
Dr. Wolin that Jackson did not have the physical capabilities of
returning to work as a police officer and that her physical
restrictions were permanent.
Jean Blake, called by Jackson, testified that she is the
medical administrator for the Chicago Police Department and as
part of her duties she certifies whether or not police officers
are fit to return to unrestricted police duties. Blake testified
that because of the conflicting opinions of Dr. Wolin and Dr.
Akkeron, she would get an independent orthopedic evaluation and
would also send Jackson for a second functional capacity
evaluation at a different vendor.
After considering the evidence, the Board voted to remove
Jackson from the duty disability rolls of their fund. Jackson
filed a timely petition for administrative review. On July 26,
1996, the circuit court affirmed the Board's decision. Jackson
filed a motion for reconsideration which was denied. This appeal
followed. We affirm.
As a preliminary matter, the Board directs our attention to
Jackson's notice of appeal. The Board contends that Jackson's
notice of appeal fails to identify the July 26, 1996, order
affirming the Board's decision and does not describe the relief
sought on appeal. The Board argues that Jackson's notice of
appeal specifies only the circuit court's order of October 4,
1996, which denied Jackson's motion for reconsideration and,
therefore, this court may not have jurisdiction over this appeal.
Illinois Supreme Court Rule 303 provides that the notice of
appeal "shall specify the judgment or part thereof appealed
therefrom and the relief sought from the reviewing court." 134
Ill. 2d R. 303(b)(2). However, the notice of appeal is to be
liberally construed as a whole. Glassberg v. Warshawsky, 266
Ill. App. 3d 585, 638 N.E.2d 749 (1994). The purpose of a notice
of appeal is to inform the party prevailing in the trial court
that the opposing party seeks review of the judgment. Taylor v.
Peoples Gas Light & Coke Co., 275 Ill. App. 3d 655, 656 N.E.2d 134 (1995). Moreover, an appeal from a final judgment draws into
issue all prior non-final orders which produced the final
judgment. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433, 394 N.E.2d 380, 382 (1979). Thus, an unspecified
judgment is reviewable if it is a "step in the procedural
progression leading to the judgment specified in the notice of
appeal." Taylor, 275 Ill. App. 3d 655, 656 N.E.2d 134, citing
Burtell, 76 Ill. 2d at 435, 394 N.E.2d at 383.
In the present case, Jackson specifically appealed from the
order of October 4, 1996, which denied her motion for
reconsideration. The October 4, 1996, order expressly
incorporated the July 26, 1996, order. Therefore, Jackson's
notice of appeal fairly apprised the Board of both the July 26,
1996 order and the October 4, 1996, order. Accordingly,
Jackson's notice of appeal was sufficient to confer jurisdiction
upon this court.
The Administrative Review Law provides that our review
extends to all questions of law and fact presented by the entire
record. 735 ILCS 5/3-110 (West 1996). The statute limits our
review to the record before us; we may not hear new or additional
evidence. The rule that failure to raise an issue before the
administrative body waives the issue for review in the appellate
court applies equally to issues involving constitutional due
process rights. S.W. v. Department of Children and Family
Services, 276 Ill. App. 3d 672, 658 N.E.2d 1301 (1995). The
findings and conclusions of the administrative agency on
questions of fact shall be held to be prima facie true and
correct. 735 ILCS 5/3-110 (West 1996).
Further, this court will not reweigh evidence or upset
credibility determinations but instead determines whether the
police Board's decision is against the manifest weight of the
evidence. Obasi v. Department of Professional Regulation, 266
Ill. App. 3d 693, 639 N.E.2d 1318 (1994). Judgment is against
the manifest weight of the evidence only if the opposite
conclusion is clearly evident, or when the finding appears to be
unreasonable, arbitrary, or not based upon the evidence. Obasi,
266 Ill. App. 3d 693, 639 N.E.2d 1318. Magett v. Cook County
Sheriff's Merit Board, 282 Ill. App. 3d 282, 669 N.E.2d 616
(1996).
Jackson first contends that the decision of the Board was
against the manifest weight of the evidence. We disagree. The
Board had the opportunity to hear and observe the testimony
presented at the hearing and examine Jackson's medical records
including other documents relating to Jackson's disability
status. Evidence that Jackson has the ability to complete a
three mile walk in less than one hour was also made a part of the
record. This evidence was unrefuted.
Although Jackson posits that walking is a part of her
therapy and that she wears a knee brace when walking, the fact
that she has the ability to walk substantial distances at a
steady pace severely diminishes her claim of disability. After
considering all the evidence, the Board found that Jackson was
able to perform an assigned duty in the police service. Based
upon the record before us, we cannot find that the Board's
decision was against the manifest weight of the evidence.
Jackson also alleges that the Board's investigatory role
combined with its adjudicatory role violated her rights to due
process and a fair and impartial hearing. We note that an
administrative proceeding is governed by the fundamental
principles and requirements of due process of law. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
606 N.E.2d 1111 (1992). Due process requires that an
administrative proceeding be conducted by a fair and impartial
tribunal. Klomann v. Illinois Municipal Retirement Fund, 284
Ill. App. 3d 224, 674 N.E.2d 38 (1996). A person challenging the
impartiality of a tribunal must overcome the presumption that
those serving on the tribunal are fair and honest. Klomann, 284
Ill. App. 3d 224, 674 N.E.2d 38. In the absence of personal bias
demonstrated in the record, the mere combination of investigatory
and adjudicatory functions will not render a tribunal biased in
violation of due process. Klomann, 284 Ill. App. 3d 224, 674 N.E.2d 38.
In the instant case, the record fails to reveal any evidence
of personal bias on the part of the Board. The Board's actions
in obtaining information that Jackson completed a three mile
walkathon in less than one hour and questioning Jackson regarding
her participation in the walkathon during her disability status
review hearing is insufficient evidence of personal bias. The
Board's actions were permissible under its duty to make findings
and conclusions on questions of fact relating to Jackson's
disability status. As such, we find Jackson has failed to
satisfy her burden of persuading this court that the Board's
actions resulted in personal bias in violation of her rights to
due process.
Finally, Jackson contends that the Board violated the
provisions of section 5-156 (40 ILCS 5/5-156 (West 1994)) in
allowing Dr. Akkeron to testify regarding Jackson's disability
status. Careful examination of the record indicates that Jackson
failed to raise this issue during her disability status review
hearing. As previously noted, the Administrative Review Law
limits our review to the record before us; we may not hear new or
additional evidence. 735 ILCS 5/3-110 (West 1996); Illinois
Telephone Corp. v. Illinois Commerce Comm'n, 260 Ill. App. 3d
919, 632 N.E.2d 210 (1994). Thus, Jackson has waived this issue
for review in the appellate court.
For the foregoing reasons, the order of the Board and the
order of the circuit court affirming the Board's decision are
affirmed.
Affirmed.
HARTMAN, P.J., and HOFFMAN, J., concur.
December 4, 1997
No. 1-96-3979
VENDETTA JACKSON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
RETIREMENT BOARD OF THE POLICEMEN'S )
ANNUITY AND BENEFIT FUND OF THE )
CITY OF CHICAGO, )
) THE HONORABLE
Defendant-Appellee. ) JOHN K. MADDEN,
) JUDGE PRESIDING.
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Vendetta Jackson, was appointed a member of the
City of Chicago Police Department on December 16, 1985, and was
injured in the course of training on January 24, 1986. On June
24, 1993, the Retirement Board of the Policemen's Annuity and
Benefit Fund of the City of Chicago (the Board) granted Jackson
full duty disability benefits.
On February 23, 1995, the Board held a disability status
review hearing. Prior to the admission of any substantive
evidence, Jackson objected to the proceedings based upon the fact
that two of the Board members resided in the same building in
which she resided and had provided the Board with information
regarding their own observations of Jackson's physical
activities. One of the Board members who lived in the same
building as Jackson was not present at the hearing. The other
Board member, Mr. Thulis, responded that he did not live in the
same building as Jackson but, nevertheless, voluntarily recused
himself from the hearing.
During the hearing, Jackson testified that as of June 24,
1994, the date when she was granted duty disability benefits, she
had been involved in physical therapy at River City Certified
Physical Therapy. She went there three times a week to maintain
her right leg at a certain performance level until she was
released into a maintenance home program around August of 1994.
Jackson further testified that she saw Dr. Preston Wolin at
Worker Rehabilitation Services in Chicago on December 5, 1994.
Jackson was evaluated for eight hours and a seven page report
concluded that Jackson's physical restrictions were permanent and
that she did not have the physical capabilities of returning to
work as a police officer. This report was submitted to the
Board. Dr. Wolin agreed with the conclusion of the report and
also submitted a letter to the Board regarding Jackson's August
5, 1994, visit.
When questioned by the Board, Jackson testified in pertinent
part, that she does not participate in physical sports but she
did participate in a neighborhood fund raiser which involved a
walkathon wherein she completed a three mile course in
approximately one hour. She further testified that walking is
part of her therapy and that she has three different braces she
uses for her knee, depending on the situation involved, and that
during this walkathon she was wearing a knee brace.
Dr. Alfred Akkeron, called by the Board, testified that he
examined Jackson on August 9, 1994, at his office in Melrose
Park. He testified that after reviewing Jackson's surgical
reports and his physical examination of her, it was his opinion
that she could return to her regular duties as a police officer.
On cross-examination, Dr. Akkeron testified that he did not
recall whether there was any descriptive report or information
with Jackson's records which outlined the physical requirements
and demands for a Chicago police officer. Dr. Akkeron further
testified that his report was inaccurate inasmuch as it indicated
that his exam was of Jackson's left knee. Dr. Akkeron
acknowledged that Jackson's injury was actually on the right
knee. He explained this discrepancy by stating that he did not
read his own report but merely signed it. Dr. Akkeron testified
that in reaching his opinion, he did not consider the opinion of
Dr. Wolin that Jackson did not have the physical capabilities of
returning to work as a police officer and that her physical
restrictions were permanent.
Jean Blake, called by Jackson, testified that she is the
medical administrator for the Chicago Police Department and as
part of her duties she certifies whether or not police officers
are fit to return to unrestricted police duties. Blake testified
that because of the conflicting opinions of Dr. Wolin and Dr.
Akkeron, she would get an independent orthopedic evaluation and
would also send Jackson for a second functional capacity
evaluation at a different vendor.
After considering the evidence, the Board voted to remove
Jackson from the duty disability rolls of their fund. Jackson
filed a timely petition for administrative review. On July 26,
1996, the circuit court affirmed the Board's decision. Jackson
filed a motion for reconsideration which was denied. This appeal
followed. We affirm.
As a preliminary matter, the Board directs our attention to
Jackson's notice of appeal. The Board contends that Jackson's
notice of appeal fails to identify the July 26, 1996, order
affirming the Board's decision and does not describe the relief
sought on appeal. The Board argues that Jackson's notice of
appeal specifies only the circuit court's order of October 4,
1996, which denied Jackson's motion for reconsideration and,
therefore, this court may not have jurisdiction over this appeal.
Illinois Supreme Court Rule 303 provides that the notice of
appeal "shall specify the judgment or part thereof appealed
therefrom and the relief sought from the reviewing court." 134
Ill. 2d R. 303(b)(2). However, the notice of appeal is to be
liberally construed as a whole. Glassberg v. Warshawsky, 266
Ill. App. 3d 585, 638 N.E.2d 749 (1994). The purpose of a notice
of appeal is to inform the party prevailing in the trial court
that the opposing party seeks review of the judgment. Taylor v.
Peoples Gas Light & Coke Co., 275 Ill. App. 3d 655, 656 N.E.2d 134 (1995). Moreover, an appeal from a final judgment draws into
issue all prior non-final orders which produced the final
judgment. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433, 394 N.E.2d 380, 382 (1979). Thus, an unspecified
judgment is reviewable if it is a "step in the procedural
progression leading to the judgment specified in the notice of
appeal." Taylor, 275 Ill. App. 3d 655, 656 N.E.2d 134, citing
Burtell, 76 Ill. 2d at 435, 394 N.E.2d at 383.
In the present case, Jackson specifically appealed from the
order of October 4, 1996, which denied her motion for
reconsideration. The October 4, 1996, order expressly
incorporated the July 26, 1996, order. Therefore, Jackson's
notice of appeal fairly apprised the Board of both the July 26,
1996 order and the October 4, 1996, order. Accordingly,
Jackson's notice of appeal was sufficient to confer jurisdiction
upon this court.
The Administrative Review Law provides that our review
extends to all questions of law and fact presented by the entire
record. 735 ILCS 5/3-110 (West 1996). The statute limits our
review to the record before us; we may not hear new or additional
evidence. The rule that failure to raise an issue before the
administrative body waives the issue for review in the appellate
court applies equally to issues involving constitutional due
process rights. S.W. v. Department of Children and Family
Services, 276 Ill. App. 3d 672, 658 N.E.2d 1301 (1995). The
findings and conclusions of the administrative agency on
questions of fact shall be held to be prima facie true and
correct. 735 ILCS 5/3-110 (West 1996).
Further, this court will not reweigh evidence or upset
credibility determinations but instead determines whether the
police Board's decision is against the manifest weight of the
evidence. Obasi v. Department of Professional Regulation, 266
Ill. App. 3d 693, 639 N.E.2d 1318 (1994). Judgment is against
the manifest weight of the evidence only if the opposite
conclusion is clearly evident, or when the finding appears to be
unreasonable, arbitrary, or not based upon the evidence. Obasi,
266 Ill. App. 3d 693, 639 N.E.2d 1318. Magett v. Cook County
Sheriff's Merit Board, 282 Ill. App. 3d 282, 669 N.E.2d 616
(1996).
Jackson first contends that the decision of the Board was
against the manifest weight of the evidence. We disagree. The
Board had the opportunity to hear and observe the testimony
presented at the hearing and examine Jackson's medical records
including other documents relating to Jackson's disability
status. Evidence that Jackson has the ability to complete a
three mile walk in less than one hour was also made a part of the
record. This evidence was unrefuted.
Although Jackson posits that walking is a part of her
therapy and that she wears a knee brace when walking, the fact
that she has the ability to walk substantial distances at a
steady pace severely diminishes her claim of disability. After
considering all the evidence, the Board found that Jackson was
able to perform an assigned duty in the police service. Based
upon the record before us, we cannot find that the Board's
decision was against the manifest weight of the evidence.
Jackson also alleges that the Board's investigatory role
combined with its adjudicatory role violated her rights to due
process and a fair and impartial hearing. We note that an
administrative proceeding is governed by the fundamental
principles and requirements of due process of law. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
606 N.E.2d 1111 (1992). Due process requires that an
administrative proceeding be conducted by a fair and impartial
tribunal. Klomann v. Illinois Municipal Retirement Fund, 284
Ill. App. 3d 224, 674 N.E.2d 38 (1996). A person challenging the
impartiality of a tribunal must overcome the presumption that
those serving on the tribunal are fair and honest. Klomann, 284
Ill. App. 3d 224, 674 N.E.2d 38. In the absence of personal bias
demonstrated in the record, the mere combination of investigatory
and adjudicatory functions will not render a tribunal biased in
violation of due process. Klomann, 284 Ill. App. 3d 224, 674 N.E.2d 38.
In the instant case, the record fails to reveal any evidence
of personal bias on the part of the Board. The Board's actions
in obtaining information that Jackson completed a three mile
walkathon in less than one hour and questioning Jackson regarding
her participation in the walkathon during her disability status
review hearing is insufficient evidence of personal bias. The
Board's actions were permissible under its duty to make findings
and conclusions on questions of fact relating to Jackson's
disability status. As such, we find Jackson has failed to
satisfy her burden of persuading this court that the Board's
actions resulted in personal bias in violation of her rights to
due process.
Finally, Jackson contends that the Board violated the
provisions of section 5-156 (40 ILCS 5/5-156 (West 1994)) in
allowing Dr. Akkeron to testify regarding Jackson's disability
status. Careful examination of the record indicates that Jackson
failed to raise this issue during her disability status review
hearing. As previously noted, the Administrative Review Law
limits our review to the record before us; we may not hear new or
additional evidence. 735 ILCS 5/3-110 (West 1996); Illinois
Telephone Corp. v. Illinois Commerce Comm'n, 260 Ill. App. 3d
919, 632 N.E.2d 210 (1994). Thus, Jackson has waived this issue
for review in the appellate court.
For the foregoing reasons, the order of the Board and the
order of the circuit court affirming the Board's decision are
affirmed.
Affirmed.
HARTMAN, P.J., and HOFFMAN, J., concur.
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