McManahon v. Retirement Bd.

FIFTH DIVISION
August 7, 1998

No. 1-97-1376

KATHLEEN McMANAMON, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. )
) No. 96 CH 5067
THE RETIREMENT BOARD OF THE )
POLICEMEN'S ANNUITY AND BENEFIT )
FUND OF THE CITY OF CHICAGO, ) The Honorable
) Robert V. Boharic,
Respondent-Appellee. ) Judge, Presiding.

JUSTICE HOURIHANE delivered the opinion of the court:

Petitioner, Kathleen McManamon, appeals from an order of the
circuit court affirming a decision of the Retirement Board of the
Policemen's Annuity and Benefit Fund for the City of Chicago
(Board), denying her duty disability benefits (40 ILCS 5/5-154
(West 1996)). McManamon argues that the Board's decision is
against the manifest weight of the evidence, and that the Board
violated the provisions of section 156 of the Pension Code (40 ILCS
5/5-156 (West 1996)), depriving her of a fair trial.
We affirm.
BACKGROUND
On November 6, 1994, McManamon, a Chicago police officer,
filed a claim with the Board seeking duty disability benefits in
connection with injuries she sustained during an on-duty
altercation on October 17, 1993. At the evidentiary hearing before
the Board, McManamon testified that she was appointed to the police
force on November 29, 1982. On October 17, 1993, while performing
her duties as a patrol officer, she was involved in an altercation
in which she was struck in the chest and fell backward, landing on
her buttocks, twisting her left knee, and striking her head on the
sidewalk. At the hospital, she was given a pain killer and
discharged. At the time, she had pain in her left ankle, left
knee, back, head, and neck. McManamon did not return to work
following this injury and, on January 31, 1994, she was involved in
an off-duty altercation in which she sustained a fractured nasal
bone, a fractured right clavicle, and a concussion.
Following the 1993 injury, the police department's medical
section sent McManamon to Dr. Fahrenbach. She complained of neck
pain, low back pain, and numbness in two fingers on her right hand.
In November 1993, Dr. Fahrenbach prescribed MRIs of her cervical
spine and left knee. The MRI of the knee was normal; the MRI of
the spine revealed a disc herniation at C5-6. Prior to the 1994
injury, Dr. Fahrenbach did not give her any indication as to
whether he thought she was progressing toward returning to work.
Her back pain was getting progressively worse and, in the third
week of January 1994, he had recommended an MRI.
McManamon further testified that in February 1995, she was
referred by the Board to Dr. Akkeron. McManamon disagreed with the
results in Dr. Akkeron's report that she "has a full neck flexion,
extension, left and right rotation, and lateral bending." She also
testified that his finding in his report that none of these motions
caused any pain, muscle tightness or spasm was in error.
Following her examination by Dr. Akkeron, McManamon saw Dr.
Fahrenbach several times. He has told her that if she returns to
work and sustains another neck injury, she would probably have
permanent damage to some nerves.
At the time of the hearing, McManamon was a full-time student
in the veterinary school at the University of Illinois in
Champaign, which she began in August 1994. Other than exercises
for her lower back, she does not engage in any physical activities.
She continues to have numbness in her right hand, limited range of
motion in her neck, and pain in her neck and low back. She has
trouble straightening up after sitting for long periods of times,
and cannot run or go down stairs without back and neck pain.
Dr. Alfred Akkeron, an orthopedic surgeon, testified that he
examined McManamon on February 9, 1995. The appointment was made
by the Board. He took a history, did a physical examination, a
neurologic examination, and reviewed her prior medical file. Dr.
Akkeron opined that McManamon could return to full duty.
Dr. S. David Demorest, the Board's physician, testified that
he examined McManamon on December 28, 1994. It was his opinion
that prior to the 1994 injury, her condition was improving, that
objective evidence supporting her subjective complaints was
lacking, and that she could return to work. However, he enlisted
the aid of Dr. Akkeron, whom he has known for 10 or 12 years.
Dr. Gregory Fahrenbach, an orthopedic surgeon, first saw
McManamon on October 18, 1993. His examination confirmed her
complaints. She had loss of motion in her neck, loss of motion in
her back with spasms, and a swollen left knee. Dr. Fahrenbach
prescribed an anti-inflammatory medication, a muscle relaxant, and
physical therapy. He saw her five times during 1993.
According to Dr. Fahrenbach, on January 21, 1994, McManamon
was still complaining of low back discomfort, difficulty with her
neck, and some loss of motion in her back and neck. He ordered an
MRI of her lumbar spine but, before she could obtain the scan, she
was involved in another altercation, i.e., the January 31, 1994,
incident. Dr. Fahrenbach subsequently treated McManamon, beginning
February 1, 1994, for multiple contusions, head trauma, and a
fracture of her right clavicle.
Dr. Fahrenbach's notes of May 9, 1994, indicate that there was
adhesive capsulitis, i.e., a scarring of the shoulder joint
preventing movement. This was a consequence of the delayed healing
of the clavicle fracture. X-rays taken in August, 1994, revealed
that the clavicle was still healing and that range of motion in her
shoulder was limited. Throughout this period, McManamon still had
problems with neck pain and back discomfort. In November 1994,
McManamon was still complaining of some back pain.
Dr. Fahrenbach saw McManamon a few times in 1995. In March,
1995, she still had loss of motion of her right shoulder, neck, and
back. In Dr. Fahrenbach's opinion, based on MRI findings
identifying cervical and lumber disc problems, McManamon could not
return to work at this time except in a sedentary capacity.
He last saw McManamon in January 1996. Not much had changed
since March 1995. He does not believe she is a malingerer, as her
subjective complaints have been substantiated by clinical exam, x-
ray, MRI and other tests.
Most of Dr. Fahrenbach's reports beginning in February 1994
focused on the clavicle fracture. He testified that it is
difficult to distinguish between shoulder pain and radiating neck
pain, and that he was not sure why she was having the problems with
her fingers. It could be from the clavicle fracture, as a lot of
clavicle fractures include head and neck trauma.
The Board found that McManamon was disabled but that the
disability was not duty related, having arisen out of the non-duty
January 1994 altercation. Accordingly, the Board granted McManamon
a 50% ordinary disability benefit. 40 ILCS 5/5-155 (West 1996).
The circuit court affirmed the Board's decision and this appeal
followed. 735 ILCS 5/3-112 (West 1996); 155 Ill. 2d R. 301.
ANALYSIS
I
McManamon first argues that the Board's decision is against
the manifest weight of the evidence in that there is no evidence
supporting the Board's conclusion that her inability to return to
work resulted from injuries received in the non-duty incident of
January 31, 1994.
Factual findings and conclusions of an administrative agency
are held to be prima facie true and correct (735 ILCS 5/3-110 (West
1996)), and will be upheld on review unless they are against the
manifest weight of the evidence. Robbins v. Board of Trustees of
the Carbondale Police Pension Fund, 177 Ill. 2d 533, 538, 687 N.E.2d 39 (1997); Antonelli v. Board of Trustees of the Hillside
Police Pension Board, 287 Ill. App. 3d 348, 352, 678 N.E.2d 773
(1997). A decision of an administrative agency is against the
manifest weight of the evidence only where the opposite conclusion
is clearly evident. Robbins, 177 Ill. 2d at 538. An
administrative decision will not be set aside merely because a
reviewing court would have ruled otherwise or because a different
conclusion is reasonable. Robbins, 177 Ill. 2d at 538; Antonelli,
287 Ill. App. 3d at 352. Thus, if there is any competent evidence
supporting the agency's determination, affirmance is required.
Robbins, 177 Ill. 2d at 538; Samuels v. Retirement Board of the
Policemen's Annuity and Benefit Fund, City of Chicago, 289 Ill.
App. 3d 651, 660, 682 N.E.2d 276 (1997).
According to McManamon, her current symptoms are numbness in
her right hand in the little and ring fingers, limited range of
motion in her neck, neck pain, and low back pain. According to Dr.
Fahrenbach, she also has limited range of motion in her right
shoulder and back. Before considering each symptom, we observe, as
the Board did, that Dr. Fahrenbach's notes beginning in February
1994, focus primarily on the fractured clavicle. This suggests
that McManamon's 1993 injuries required significantly less medical
intervention during 1994 and subsequent periods.
As to particular symptoms, Dr. Fahrenbach testified that the
tingling in the fingers on her right hand could be from the
clavicle fracture. While he did not testify that McManamon's neck
pain could also be caused by the clavicle fracture, he did testify
that such fractures involve head and neck trauma:
"You fall down, you hit your shoulder, hit your
head, hit your neck, and all the structures there,
the bone structures, the nerves, the tendons, all
that becomes involved."
As to McManamon's low back pain, the testimony was
conflicting. Dr. Fahrenbach testified that the MRIs taken in 1993
and other tests substantiate her claims of low back pain. However,
Dr. Demorest testified that, based on his review of her medical
history, prior to the 1994 altercation, her overall condition was
improving. Further, despite McManamon's testimony of continuing
low back pain and difficulty straightening up after long periods of
sitting, her condition did not prevent her from attending
veterinary school as a full-time student.
Finally, as to McManamon's loss of motion in her right
shoulder, it is unquestionably the result of the clavicle fracture.
It is for the administrative body to weigh the evidence, make
credibility determinations, and resolve any conflicts in the
evidence. Iwanski v. Streamwood Police Pension Board, 232 Ill.
App. 3d 180, 184, 596 N.E.2d 691 (1992); Nichols v. Department of
Employment Security, 218 Ill. App. 3d 803, 809, 578 N.E.2d 1121
(1991). It is not this court's prerogative to reweigh the
evidence or substitute its judgment for that of the Board.
Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992); Ryndak v. River Grove
Police Pension Board, 248 Ill. App. 3d 486, 489, 618 N.E.2d 606
(1993). Further, a mere conflict in the evidence is an
insufficient basis on which to reverse. Nichols, 218 Ill. App. 3d
at 809. Given the nature of the record before this court, it
cannot be said that the Board's conclusion that McManamon's current
disability is unrelated to the October 1993 on-duty altercation is
against the manifest weight of the evidence.
II
McManamon next argues that even if this court affirms the
Board's finding that her disability resulted from the January 31,
1994 injuries, she is entitled to duty disability benefits because
she was performing an "act of duty" on that date. See 40 ILCS 5/5-
113 (West 1996).
McManamon never argued before the Board that the injuries she
sustained in the January 1994 off-duty altercation were the basis
for her claim of duty disability. According to the record, the
affidavit McManamon submitted in support of her claim refers only
to the October 1993 incident. Further, although some limited
testimony as to the January 1994 incident was offered by McManamon
upon questioning by the Board's counsel, it is apparent that
McManamon was not relying on the 1994 incident as the basis for her
claim and never suggested that the Board should find that she was
performing an "act of duty" at that time. Rather, McManamon raised
this argument for the first time before the circuit court, a fact
the Board noted in its brief before that court:
"McManamon in her brief now attempts, for the
first time, to color [t]he January 1994 event as
[an] "act of duty" incident. The Court is limited
to what is in the record, and not to the wishful
thinking of McManamon raised as an afterthought."
We agree with the Board that McManamon's arguments before the
circuit court were necessarily limited to those raised before the
Board. Any argument not raised before an administrative body will
be deemed waived and cannot be asserted on judicial review.
Jackson v. Retirement Board of the Policemen's Annuity and Benefit
Fund of the City of Chicago, 293 Ill. App. 3d 694, 698, 688 N.E.2d 782 (1997); Board of Education of City of Chicago v. Illinois
Educational Labor Relations Board, 289 Ill. App. 3d 1019, 1021, 682 N.E.2d 398 (1997). Accordingly, we find that McManamon waived
consideration of whether the January 1994 injuries were sustained
during the performance of an act of duty.
III
Finally, McManamon contends that she was denied a fair hearing
in that the Board's introduction of testimony from Dr. Akkeron
violated the provisions of section 156 of the Pension Code (40 ILCS
5/5-156 (West 1996)). This section states in relevant part:
"Proof of duty or ordinary disability
Physical examinations. Proof of duty or
ordinary disability shall be furnished to the
board by at least one licensed and practicing
physician appointed by the board. In cases
where the board requires an applicant to get a
second opinion, the applicant must select a
physician from a list of qualified licensed and
practicing physicians who specialize in the
various medical areas related to duty injuries
and illnesses, as established by the board.
The board may require other evidence of
disability." 40 ILCS 5/5-156 (West 1996).
Prior to the hearing before the Board, McManamon filed a
motion to exclude the testimony of Dr. Akkeron. McManamon asserted
that she was required to undergo an examination by Dr. Demorest,
the Board's physician, and that Dr. Demorest sought a second
opinion from Dr. Akkeron. McManamon argued that, contrary to
section 156, she was never offered an opportunity to select a
physician from a list prepared by the Board. Without explanation,
the Board denied the motion.
The Board argued before the circuit court, as it does on
appeal, that it is not restricted under section 156 from seeking
the opinions of other doctors, and that only when the applicant has
submitted her own medical report and the Board then requests the
applicant to get a second opinion, must the applicant be allowed to
pick the physician from a list established by the Board. The
circuit court was "inclined to believe that the better
interpretation is that of the Board". We cannot agree.
Interpretation of a statute is a question of law. Branson v.
Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995).
While the interpretation of a statute by the agency charged with
its enforcement is relevant, it is not binding on this court and
review proceeds de novo. Branson, 168 Ill. 2d at 254.
The primary rule of statutory construction is to ascertain and
give effect to the intent of the legislature, such inquiry
necessarily beginning with the language used in the statute.
Bogseth v. Emanuel, 166 Ill. 2d 507, 513, 655 N.E.2d 888 (1995).
We note that the Board's interpretation rests on language not found
in the statute, a fact the Board admits:
"[A]lthough there is nothing in Section 5/5-156
requiring an Applicant to obtain his or her own
medical report supporting the disability claim, if
such a report is produced, then [t]he Board can
insist that the Applicant seek a second opinion from
a doctor who specializes in the injury or disability
claimed by the Applicant." (Emphasis original.)
Had the legislature intended, as the Board maintains, to permit an
applicant to choose the physician from whom a second opinion will
be obtained only where the applicant first submits her own medical
report, the legislature was free to do so. However, it did not,
and we decline, under the guise of statutory construction, to read
such language into the statute.
Further, under the Board's interpretation, an applicant could
be referred by the Board to any number of practitioners for second
opinions as to various aspects of the applicant's medical
condition, yet the provisions of section 156 would never be
triggered because the Board did not request the applicant, herself,
to seek a second opinion. The Board's interpretation effectively
does an end-run around the statute.
The statute plainly provides that proof of disability be
furnished to the Board by at least one physician appointed by the
Board and that where "the board requires an applicant to get a
second opinion, the applicant must select a physician" from an
appropriate list. (Emphasis added.) 40 ILCS 5/5-156 (West 1996).
The word "must" is indicative of a mandatory duty. A.Y. McDonald
Manufacturing Co. v. State Farm, 225 Ill. App. 3d 851, 855, 587 N.E.2d 623 (1992). We find, based on the language in the statute,
that such duty is triggered any time the Board seeks a second
opinion, i.e., an opinion in addition to the one necessarily
provided by the Board-appointed physician.
Here, it is undisputed that Dr. Demorest, the Board's
physician, referred McManamon directly to Dr. Akkeron for a second
opinion and that McManamon was deprived of the opportunity to
select a physician from a list provided by the Board. The Board's
conduct violated section 156 and Dr. Akkeron's testimony should
have been excluded. The Board's conduct does not, however, provide
a basis for reversal. Even in the absence of Dr. Akkeron's
testimony, the Board's conclusion, that McManamon's disability is
not related to the October 1993 incident, finds support in the
record. Thus, although the Board erred by failing to exclude Dr.
Akkeron's testimony, we do not find that McManamon was prejudiced
thereby or that the outcome of the hearing would have been any
different had her motion to exclude been granted.
For the foregoing reasons, we affirm the judgment of the
circuit court.
Affirmed.