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SECOND DIVISION
NOVEMBER 28, 2000

1-99-2651

Plaintiff, Clifton Thigpen, sought administrative relief from a decision of the Retirement Board of Firemen's Annuity andBenefit Fund of Chicago (the Board) denying his application for duty disability benefits under the Illinois Pension Code (40ILCS 5/6-101 et seq. (West 1996)). The circuit court reversed the Board's decision and the Board now appeals from thejudgment. The issue presented for review is whether the trial court erred in finding that the decision of the Board denyingThigpen's application for duty disability benefits was against the manifest weight of the evidence.

We affirm.

BACKGROUND

Clifton Thigpen became a firefighter for the Chicago fire department in October of 1978. On February 22, 1995, he slippedand fell from the sixth rung of a wooden ladder (approximately four to six feet)while polishing a brass pole located at his firehouse. Polishing the brass polewas one of his assigned duties as a firefighter. He landed on his back and rightelbow. His fall was witnessed by Lieutenant Donald Pugh and firefighter DonaldRobinson, the firefighter holding the ladder. Following the fall, Thigpen wastransported via ambulance to Little Company of Mary Hospital for medicaltreatment. According to the emergency room physician's report, "moderately severepain to olecranon process of the right elbow" was noted and "moderate rightparalumbar tenderness" was found in his back. The report also indicated that herefused pain medication at that time. Thigpen was released the same day with painmedication and was instructed to return if his pain worsened.

Shortly after Thigpen's release, he was evaluated by Dr. Steven Mather, hisprimary care physician, of the Parkview Orthopaedic Group, S.C. Dr. Mather'sMarch 16, 1995, letter to Dr. Hugh Russell, medical director of the Chicago firedepartment, provided: "On physical examination [Thigpen] is quite tender in thelumbosacral junction. *** We will get him into physical therapy for a quickerreturn to work. *** At the next visit I think he should be able to return towork." In a letter dated April 20, 1995, Dr. Mather indicated to Dr. Russell:

"We will get an epidural steroid and follow this with a 2nd one 2 weeks later. Wewill see him back 2 weeks after his epidural steroids and will continue thetherapy for now. He is currently off work until further notice."

After a June of 1995 examination, Dr. Mather recommended two epidural steroidinjections two weeks apart for Thigpen. In July of 1995, Dr. Mather wrote to Dr.Russell: "His back is feeling better. *** We will get him into physical therapyfor strengthening and conditioning and see him back in 4 weeks at which time ourgoal would be to return him to unrestricted duty." Also in July of 1995, Thigpenparticipated in a functional capacity evaluation (FCE) conducted by physicaltherapist Kathy Ruggio of the CAREMARK Center for Industrial Rehabilitation. Ruggio's report stated:

"A firefighter is considered to be in the Very Heavy work category which is alift of over 100# on an occasional basis. It is apparent that the client isunable to perform his pre-injury job demands at this time.

***

It appears that the client would benefit from a work hardening program inorder to increase functional capabilities to those of his job demands. It isrecommended that the client participate in a 4-6 week program with emphasis ongeneral reconditioning, low back strengthening, and progressive functional tasks."

In a letter written by Dr. Mather in August 1995, he indicated to Dr. Russell thatThigpen's back was "starting to bother him again" and recommended "facetinjections at L5-S1" and another visit from Thigpen two weeks after theinjections. In September of 1995, Dr. Mather noted about Thigpen's progress:

"Persistent complaints of low back pain, without objective findings. We will trygoing back to work as of tomorrow night, 9-21-95. If his symptoms change, he willsee us back."

Following the February 22, 1995, accident, Thigpen was on medical "lay up" untilOctober of 1995. The lay up period in 1995 was not Thigpen's first lay upexperience. He had been on fire department lay up from December of 1979 to Juneof 1980 for a nonduty car accident in which he sustained injuries to his back. InOctober of 1982, he was on lay up for another non duty car accident that alsocaused back injuries. In 1984, he was, again, laid up for 36 days for treatmentof a nonduty acute lumbar radiculopathy/cervical strain.

In October of 1995, at his request, Thigpen returned to work as a fire inspector,not as a firefighter. He remained a fire inspector until April of 1997 when,according to him, his back pain increased to the point that he could no longercontinue to work. In April of 1997, he was placed on lay up with the applicablebenefits.

Dr. Robert Gettleman prescribed physical therapy, epidural shots, and facet shotsfor Thigpen's back pain between July and September of 1997. In October of 1997,Dr. Gettleman ordered a bone scan of Thigpen's back and "if they are negative hemay then return to his usual occupational duties." The record indicates that "thethree phases of the bone scan were negative."

In February of 1998, Thigpen made an application for duty disability benefits,stating that he was "no longer physically capable of performing [his] duties as afirefighter due to the accident and injury of February 22, 1995." Thigpen has notreceived any salary or benefits since February of 1998.

The Board began its hearings on Thigpen's application for duty disability benefitsin March of 1998. While his application for duty disability benefits was pending,Thigpen applied for ordinary disability benefits, under article 6, section 152, ofthe Illinois Pension Code, in January of 1999. 40 ILCS 5/6-152 (West 1996). Therecord indicates that the Board refused to hear his application for ordinarybenefits because the matter regarding duty disability benefits was before thecircuit court for review.

The exhibits presented to the Board during Thigpen's duty disability hearingincluded: Thigpen's February 22, 1995, emergency room report; the Chicago firedepartment's report of Thigpen's injury; Thigpen's duty disability benefitapplication and supporting statement; Thigpen's lay up summary; Dr. Mather'sdiagnostic evaluations and letters to the Chicago fire department's medicaldirector; Dr. Ike Arene's letter to the Board; Dr. Gettleman's letters to theBoard's physician and consultant, Dr. George Motto and Dr. Arene; Dr. Motto'sletter to the Board; Dr. Motto's curriculum vitae; reports regarding Thigpen'snonduty injuries and hospitalizations; medical reports regarding Thigpen'sepidural injections, bone scan, and X-rays; Thigpen's work capacities assessment;three FCE reports; and the testimony of Pugh, Robinson, Rios, Dr. Motto, andThigpen.

The record indicates that when a firefighter requests duty disability benefits,the Board physician and consultant examines the applicant. Dr. Motto examinedThigpen in March of 1998. Dr. Motto's March 1998 letter to the Board indicated:

"The applicant was an alert cooperative stated age appearing man who walkedwith a brace, very stiff spined and hesitantly, very slowly with a very steadygait. He had marked difficulty both getting into and getting out of a chair andwas in obvious physical discomfort performing those activities. Range of motionof the back was markedly decreased with spasm of the muscles. Comment: CliftonThigpen is a 48 year old man who relates that since February 22, 1995, when hefell flat on his back, injuring his back, he has had progressive difficulties withpain in his back and radiation to his legs and he has been unable to work."

At the request of Thigpen's attorney, Dr. Gettleman prepared a letter addressed toDr. Motto in April 1998, which noted:

"As far as whether or not Mr. Thigpen's problems relate directly to his injury,I do not feel that I can state this to a reasonable degree of medical certainty. Regarding his ability to return to work, in cases such as this I generally havethe patient undergo a functional capacity evaluation and tend to abide by thatreport."

Dr. Arene wrote a letter to Dr. Motto in April of 1998 stating:

"Upon review of [Thigpen's] chart, there is no evidence that his medical conditionis the result of any trauma other than the one he suffered on February 22, 1995. *** Mr. Thigpen cannot perform as a [sic] active firefighter anytime in thefuture."

Dr. Motto requested that Thigpen participate in a FCE in order to assess Thigpen'sphysical capabilities and ability to return to work as a firefighter. A FCE wasconducted by occupational therapist Phil Rios in June of 1998. Rios' reportindicated:

"No recommendations can be made at this time due to positive testing for non-exertion of maximum effort and inappropriate illness behavior. However, due tohistory of physical therapy and pharmacological interventions without notedprogress over the past 3