Wade v. City of North Chicago Police Pension Board

Case Date: 12/03/2004
Court: 2nd District Appellate
Docket No: 2-04-0047 Rel

No. 2--04--0047


 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

SECOND DISTRICT


LAWRENCE WADE,

          Plaintiff-Appellant,

v.

THE CITY OF NORTH CHICAGO POLICE
PENSION BOARD,

          Defendant-Appellee.

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Appeal from the Circuit Court
of Lake County.


No. 03--MR--987


Honorable
Raymond J. McKoski,
Judge, Presiding.

JUSTICE BYRNE delivered the opinion of the court:

Plaintiff, Lawrence Wade, appeals the order of the circuit court of Lake County affirming thedecision of defendant, the City of North Chicago Police Pension Board (the Board), denying him adisability pension. The Board denied plaintiff a line-of-duty disability pension (see 40 ILCS 5/3--114.1 (West 2002)), in part because Dr. Milgram, one of the three doctors selected by the Board toexamine plaintiff, did not certify plaintiff as disabled pursuant to section 3--115 of the Illinois PensionCode (Code) (40 ILCS 5/3--115 (West 2002)). On appeal, plaintiff argues: (1) the Board denied hima fair and impartial hearing because it relied solely on Dr. Milgram's medical report in denying hima disability pension; (2) the Board's decision was contrary to the manifest weight of the evidence; and(3) the Board improperly interpreted section 3--115 to mandate that, before a disability pension canbe granted, all three examining physicians selected by the Board must certify that the applicant isdisabled. We find that the Board correctly interpreted section 3--115 and properly denied plaintiff'sapplication for disability pension benefits. Accordingly, we affirm the Board's decision on this basis.

FACTS

Plaintiff was hired as a full-time police officer by the North Chicago police department in June1982. In 1989, plaintiff injured his right knee playing football. Dr. Roger B. Collins examined himin 1991 and again in 1992, when his knee problems continued. In August 1997, he twisted his rightknee playing softball and underwent arthroscopic surgery. His knee problems continued and, in late2001 and early 2002, he missed work for approximately eight weeks because of them. He returnedto work in February 2002.

On April 20, 2002, plaintiff injured the same knee when he tumbled down an embankmentwhile escorting a prisoner. He underwent surgery on May 17, 2002. Thereafter, on October 8, 2002,plaintiff filed an application with the Board for a disability pension. He did not specify whether hewas seeking a line-of-duty (see 40 ILCS 5/3--114.1 (West 2000)) or a not-on-duty disability pensionunder the Code (see 40 ILCS 5/3--114.2 (West 2000)).

Pursuant to statutory mandate (see 40 ILCS 5/3--115 (West 2000)), three physicians selectedby the Board, Dr. John Dwyer, Dr. Christopher Reger, and Dr. James W. Milgram, examinedplaintiff. Drs. Dwyer and Reger found plaintiff to be disabled from a "work-related" injury and issuedcertificates of disability. Dr. Milgram found that in both of his knees plaintiff had degenerativebilateral arthritis that preexisted any duty-related incident. Dr. Milgram did not believe that thedegree of arthritis in his right knee "disabled" plaintiff from work as a police officer and felt that ifplaintiff were "so motivated[,] he could return to work as a police officer at the present time withoutrestriction." Dr. Milgram did not find plaintiff to be disabled from a work-related injury and did notissue a certificate of disability.

Plaintiff was also examined by Dr. Jay L. Levin. His report also indicates that plaintiff hadchronic and long-standing knee problems that predated the April 20, 2002, injury.

At the evidentiary hearing on June 19, 2003, plaintiff's counsel indicated that plaintiff wantedthe Board to consider his pension application as a duty-related claim only and that he was not seekinga not-on-duty disability pension. During the hearing, the medical reports of the Board's examiningphysicians and the medical records from plaintiff's treating physicians were admitted into evidence. Plaintiff did not object to the admission of these exhibits, including Dr. Milgram's medical report.

The Board denied plaintiff's application for a line-of-duty disability pension, finding thatplaintiff had a preexisting disease unrelated to the April 20, 2002, incident. In its analysis, the Boardfound Dr. Milgram more credible than the other physicians and afforded greater weight to his opinion. The Board also relied on Dr. Levin's report and the extensive prior medical treatment and injuries,which indicated to the Board that plaintiff's right knee condition existed prior to the work-relatedincident. Citing Rizzo v. Board of Trustees of The Village of Evergreen Park Police Pension Board,338 Ill. App. 3d 490 (2003), which interpreted section 3--115 of the Code to require a board to issuea disability pension only if it receives certificates of an officer's disability from three practicingphysicians selected by the board, the Board also denied plaintiff a disability pension because it did notreceive three certificates of disability.

Plaintiff filed a complaint for administrative review. Following a hearing, the trial courtaffirmed the Board's decision, finding that because the doctors' medical reports were admitted as partof the administrative record without objection, plaintiff waived any objections to the sworncertification requirements of section 3--115. The trial court did not rule on the issues of whether theBoard's decision was against the manifest weight of the evidence or legally erroneous. Rather, thetrial court believed that it was bound to follow the decision in Rizzo because it was the only appellatecourt case in Illinois specifically deciding the section 3--115 issue. Accordingly, the court affirmedthe Board's decision because the Board did not receive three certificates of disability from theexamining physicians selected by the Board pursuant to section 3--115. Plaintiff timely appeals. Weallowed the Hoffman Estates Police Pension Fund to file an amicus curiae brief in support of plaintiff.

ANALYSIS

We turn now to the issue of whether section 3--115 of the Code mandates that a pensionboard deny disability benefits unless all three examining physicians selected by the board certify thatthe applicant is disabled. Plaintiff and amicus curiae do not agree with Rizzo's interpretation of thestatute and assert that, while a pension board must have three certificates from its selected doctors,all three certificates do not need to find the applicant disabled for the board to award a disabilitypension. Relying on the recent decision of Coyne v. Milan Police Pension Board, 347 Ill. App. 3d713 (2004), plaintiff and amicus curiae contend that the statute requires three medical certificatesaddressing an applicant's disability status. Therefore, they assert, even though one doctor did notcertify that plaintiff was disabled, plaintiff could still obtain a pension.

We begin by citing the statute, our standard of review, and the relevant statutory guidelines.

Section 3--115 of the Code provides in relevant part:

"Certificate of disability. A disability pension shall not be paid unless there is filedwith the board certificates of the police officer's disability, subscribed and sworn to by thepolice officer if not under legal disability, *** and by the police surgeon (if there be one) and3 practicing physicians selected by the board. The board may require other evidence ofdisability." 40 ILCS 5/3--115 (West 2002).

In reviewing a final decision under the Administrative Review Law (735 ILCS 5/3--101 etseq. (West 2002)), we review the agency's decision and not the trial court's determination. Martinov. Police Pension Board, 331 Ill. App. 3d 975, 979 (2002). When the issue is one of law only, wereview the agency's decision de novo. Martino, 331 Ill. App. 3d at 980. Here, review is de novobecause this case involves a question of statutory interpretation. Land v. Board of Education of theCity of Chicago, 202 Ill. 2d 414, 421 (2002). However, we give substantial weight and deferenceto an agency's interpretation of a statute it enforces. Village of Franklin Park v. Illinois State LaborRelations Board, 265 Ill. App. 3d 997, 1001 (1994).

In interpreting a statute, the court must ascertain the legislature's intent, which is found in theplain and ordinary meaning of the language used in the statute. Land, 202 Ill. 2d at 421. Where thestatutory language is clear, the court will give that language effect without resort to other aids ofconstruction. Martino, 331 Ill. App. 3d at 980.

In Rizzo, two of the three board-selected doctors who examined Rizzo submitted reportsfinding that Rizzo was disabled and unable to return to his job as a police officer. The third physicianfound that, while Rizzo was impaired, he was not disabled and could return to full, unrestricted policeduties. The first two physicians submitted reports of their opinions. The third physician submitteda certificate stating that Rizzo was not disabled. Similar to the present case, in denying Rizzo adisability pension, the pension board afforded more weight to the physician's opinion that Rizzo wasnot disabled. The board also denied Rizzo's application for benefits pursuant to section 3--115because the third physician certified that Rizzo was not disabled. Rizzo, 338 Ill. App. 3d at 491-93. On administrative review, the trial court reversed and remanded because one of the doctors findingdisability had not submitted a sworn certificate as required under section 3--115. On remand, theboard noted that it had received the second doctor's certificate certifying Rizzo was disabled. Rizzofiled another complaint for review. The trial court reversed again, finding, inter alia, that the boardimproperly interpreted section 3--115.

On appeal, the First District Appellate Court held that the board properly interpreted section3--115 because the language of the statute clearly states that a police officer cannot obtain a disabilitypension unless a board receives certificates from three practicing physicians, selected by the board,stating that the officer is disabled. The court noted that the board may require "other evidence" of theofficer's disability, or evidence in addition to the three certified statements from the board's selectedphysicians that the applicant is disabled. Rizzo, 338 Ill. App. 3d at 494. Because one of the threephysicians selected by the board to examine Rizzo did not certify that he had a disability, the boardcould not award Rizzo a disability pension. Therefore, the appellate court concluded that the boardproperly denied Rizzo's application for disability pension benefits. Rizzo, 338 Ill. App. 3d at 495.

In Daily v. Board of Trustees of the Police Pension Fund, 251 Ill. App. 3d 119 (1993), theplaintiff argued that the case should be remanded to obtain proper certification because the threephysicians selected by the board to examine the plaintiff did not certify that he had a disability. TheFourth District Appellate Court held that, based on the statute, without the three physicians'certifications that the plaintiff had a disability, the board could not give the plaintiff a disability pension. Daily, 251 Ill. App. 3d at 126.

The plaintiffs in Rizzo and Daily both relied on Caauwe v. Police Pension Board, 184 Ill. App.3d 482 (1989), for the proposition that physicians' certificates are required from three doctors toestablish either an applicant's disability or the lack thereof. In Caauwe, the pension board denieddisability benefits based on unverified and unsworn medical evidence. The plaintiff asserted that certification by three doctors that he was not disabled was mandatory to deny benefits under section3--115, and because the doctors' reports lacked the certification of his disability, the cause should beremanded for such certification. The appellate court agreed and held that section 3--115 mandatedthat the board select three practicing physicians to furnish subscribed and sworn-to certifications ofthe applicant's disability status. Accordingly, the court reversed and remanded for the board to receivethree doctors' certifications of the plaintiff's disability or lack thereof. Caauwe, 184 Ill. App. 3d at484-86.

Daily and Rizzo found that, under the clear language of section 3--115, certification of anapplicant's disability is required only when a board will be providing benefits, not when it is going todeny benefits. Rizzo, 338 Ill. App. 3d at 494-95; Daily, 251 Ill. App. 3d at 127. To the extent thatCaauwe mandates certification of an applicant's disability prior to denying benefits, both courts foundit to be a contradiction of the express language of the statute and declined to follow Caauwe. Rizzo,338 Ill. App. 3d at 495; Daily, 251 Ill. App. 3d at 127.

Plaintiff and amicus curiae rely on the recent Third District Appellate Court decision in Coyneto support their argument that the statute does not require three certificates of disability furnished bydoctors selected by the pension board for the board to grant a disability pension. In Coyne, as here,the board interpreted the language of section 3--115 as requiring a unanimous declaration from itsthree appointed doctors that Coyne was disabled for police work, and since one doctor selected bythe board opined that Coyne was not so disabled, the board summarily denied him benefits. Coyne,347 Ill. App. 3d at 727.

The trial judge disagreed with the board's interpretation of section 3--115, finding the relevantstatutory language to be ambiguous. The judge construed section 3--115 as requiring three medicalcertificates addressing Coyne's disability status. Because all three of the certificates met this standard,the judge concluded that the one doctor's opinion that Coyne was not disabled did not ipso factodisqualify Coyne from receiving pension benefits. Coyne, 347 Ill. App. 3d at 727-28.

The Third District Appellate Court agreed with the judge's conclusion. The focus of itsanalysis centered on the meaning of the qualifying label "of disability." The court found 21 nuancesfor the word "of," ranging from " '[c]entering on' " to " '[i]n respect to,' " which the court felt injectedambiguity into the pivotal statutory language. Coyne, 347 Ill. App. 3d at 728. The court believed thatthese various definitions could easily encompass a certificate addressing an applicant's disability statusgenerally, regardless of the doctor's ultimate opinion about whether the applicant can perform policework. Coyne, 347 Ill. App. 3d at 728.

The court also expressed its concern over the meaning of the word "disability" because thestatute says nothing about the degree of the person's incapacity. The court pointed out that in section3--114.2 of the Code (40 ILCS 5/3--114.2 (West 1996)), the legislature recognized the varyingdegrees of disability. After a police officer suffers a disability, the pension board decides whether thedegree of the disability is sufficient to trigger pension benefits. However, in the certificate provisionof section 3--115, the legislature referenced "disability" in a general fashion without elevating the termas it did in section 3--114.2. The Coyne court believed that this fact, combined with the range ofdefinitions for the word "of," resulted in ambiguity regarding the content of the required certificates. Coyne, 347 Ill. App. 3d at 728-29.

The court found that to uphold the board's interpretation of section 3--115 would yield a resultthat would be both absurd and unconstitutional. The court asserted that, if the board's interpretation were carried to its logical conclusion, then, as a threshold matter in all cases, the three physiciansrequired by section 3--115 would each have to certify that the applicant was disabled for police work,and the opinion of a lone minority dissenter would ipso facto defeat a pension claim, rendering section3--115 a virtual summary dismissal provision. Coyne, 347 Ill. App. 3d at 729. The court pointed outthat the evidentiary hearing would be rendered useless because, regardless of the weight of theapplicant's evidence, the outcome would be predetermined by the mere existence of a disagreementbetween witnesses. Coyne, 347 Ill. App. 3d at 729. The court further pointed out that due processrequires adequate notice and a hearing, but the board's interpretation precluded a hearing andeffectively turned the decision over to the three physicians selected by the board rather than to the trierof fact. Coyne, 347 Ill. App. 3d at 729.

Justice Schmidt did not agree with the majority's rationale in Coyne. In his dissent, he assertedthat the issue centered around what the legislature meant when it referred to the term " 'certificatesof the police officer's disability.' " Coyne, 347 Ill. App. 3d at 730 (Schmidt, J., dissenting). He believedthat the majority tortured the word "of" in a " 'Clintonesque' fashion" to make the term ambiguous. He found nothing ambiguous about the term, that it plainly refers to certificates stating that the policeofficer is disabled in one form or another. Coyne, 347 Ill. App. 3d at 731 (Schmidt, J., dissenting). Justice Schmidt pointed out that a reading of the statute under the majority's line of reasoning wouldrender an absurd result because it would allow the board to pay a disability pension to a police officerwhere every certificate on file, including the officer's, indicated that he was not disabled. Coyne, 347Ill. App. 3d at 731 (Schmidt, J., dissenting).

We agree with Justice Schmidt's dissent as well as the reasoning in Rizzo and Daily, whichhave construed the statute to mean what it says. We find nothing equivocal about the term"certificates of the police officer's disability." "Disability" is defined as "[a] condition of physical ormental incapacity to perform any assigned duty or duties in the police service." 40 ILCS 5/5--115(West 2002). Accordingly, we see no need to certify the degree of an applicant's disability. Underthe clear meaning of section 3--115, three physicians selected by the board must furnish certificationthat the applicant has a disability preventing him from performing any assigned duty or duties in thepolice service. This shows the legislature's intent to require very strong proof before the board issuesa disability pension.

Furthermore, contrary to the argument raised in Coyne and relied on by plaintiff and amicuscuriae, we do not find that the Board's interpretation yields an absurd or unconstitutional result. Ifthree certificates are filed establishing disability, the issue then becomes whether the disability wascaused by a noncovered act or a covered act. If the Board determines that the disability was causedby a covered act, then the Board must determine the type and amount of pension the applicantreceives. See 40 ILCS 5/114.1, 114.2 (West 2002). Thus, there is a rationale as to why the statutestates that there may be other evidence presented on point, especially if the certificates of disabilityare inconsistent as to the cause of the disability.

We note that, although Coyne was not certified by three physicians selected by the board, afourth physician, a psychiatrist who was referred by one of the selected physicians, stated that Coynecould not work as a police officer. Thus, consistent with Justice Schmidt's dissent, we see nothingin the statute to preclude an applicant from requesting a board to appoint a fourth physician toexamine him in an effort to secure the necessary three certificates of disability. Coyne, 347 Ill. App.3d at 732 (Schmidt, J., dissenting). Finally, we point out that the medical examination requirementsin the Code are antifraud provisions, and they serve the legitimate legislative goal of ensuring theintegrity of the pension fund. Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 799 (2000).

Because we find the language clear, there is no need to resort to other interpretive aids. SeeSolich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994)(where the enactment is clear and unambiguous, a court is not at liberty to depart from the plainlanguage and meaning of the statute by reading into it exceptions, limitations, or conditions that thelegislature did not express). The statute as clearly written should be enforced. See Paris v. Feder,179 Ill. 2d 173, 177 (1997) (if legislative intent can be ascertained from a statute's plain language, thatintent must prevail without resort to other interpretive aids).

Plaintiff believes that Rizzo is distinguishable from his case, based on a number of othergrounds. Plaintiff asserts that Rizzo sought a nonduty disability pension rather than a line-of-dutydisability pension like plaintiff. We find this to be a distinction without a difference. It is not the typeof disability that is pivotal to the issue under section 3--115. Rather, it is whether three physiciansselected by the board have certified that the applicant has a disability.

Plaintiff further contends that in Rizzo all three doctors filed certificates regarding Rizzo'sdisability one way or the other, while here, Dr. Milgram did not issue a certificate at all. Ofimportance here, as in Rizzo, is that only two of the three physicians certified plaintiff as disabled. Furthermore, regardless of the distinction between the facts, it is the Board's interpretation of section3--115 and its application to the facts that is relevant to our disposition.

Both plaintiff and amicus curiae believe that the First District Appellate Court case of Knightv. Village of Bartlett, 338 Ill. App. 3d 892 (2003), contradicts its decision and analysis in Rizzo. Knight neither addresses the decision in Rizzo nor does it construe section 3--115. Rather, in Knight,two doctors selected by the board concluded that Knight was permanently disabled and unfit for dutyas a police officer, and the third doctor concluded that Knight had a " 'lack of fitness for duty' " butwas not psychologically disabled. Knight, 338 Ill. App. 3d at 900. The appellate court noted thatthe record indicated that the doctor used the phrase "lack of fitness for duty" to describe Knight asno longer being capable of performing the duties of a police officer, and the court concluded that"lack of fitness" was synonymous with "unfit." Knight, 338 Ill. App. 3d at 900. Because all threeexamining physicians essentially reached the same conclusion that Knight was disabled, the courtreversed the board's decision denying a disability pension as against the manifest weight of theevidence. The court never addressed the issue here: whether the lack of a third certificate undersection 3--115 precludes an applicant from receiving a disability pension.

Plaintiff and amicus curiae imply that a pension board can select a practicing physician whomthe board knows will not certify an applicant as disabled, in order to deny the applicant a disabilitypension. We presume that persons who serve on administrative tribunals are fair and honest. SeeJackson v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago,293 Ill. App. 3d 694, 699 (1997). Plaintiff did not offer any evidence of bad faith here. In theabsence of any such evidence, we will not presume that the Board acted arbitrarily or in bad faith. However, if an applicant presented such proof, then a board's decision could be reversed and thecause remanded with directions to appoint a fourth physician to examine the applicant.

In summary, by the plain, express language of section 3--115, the legislature clearly requiresthat certificates of disability be filed by three practicing physicians selected by a board before a policeofficer is entitled to disability benefits. Here, since the three physicians chosen by the Board did notfile certificates of disability, plaintiff is not entitled to disability benefits. Before we could rule forplaintiff, we would have to rewrite the statute to allow the Board more flexibility with respect to thecertificates of disability. However, we cannot rewrite the statute. Rather, it is our task to interpretand apply it in the manner in which it was written. In re Estate of Schlenker, 209 Ill. 2d 456, 466(2004). As Justice Cardozo stated: "We do not pause to consider whether a statute differentlyconceived and framed would yield results more consonant with fairness and reason. We take thisstatute as we find it." F. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527 (1947). Because we must take it as we find it, the clear, express language of the statutecompels us to affirm. The language of the statute is plain and has only one meaning. Thus, the dutyof interpretation does not arise. If the legislature intends the courts to interpret section 3--115 asplaintiff does, it should make the necessary statutory changes.

On administrative review, we may affirm an agency's decision on any ground appearing in therecord. Rizzo, 338 Ill. App. 3d at 495. Because we affirm the Board's decision based on theapplication of section 3--115, we need not address plaintiff's other contentions that he did not receivea fair and impartial hearing because of the Board's sole reliance on Dr. Milgram's medical report andthat the Board's determination was against the manifest weight of the evidence. Furthermore, becausewe need not address the remaining issues, we deny the Board's motion, taken with the case, to strikeplaintiff's argument regarding whether he received a fair and impartial hearing.

Accordingly, we affirm the judgment of the circuit court and the Board's decision to denyplaintiff disability pension benefits.

Affirmed.

McLAREN, J., concurs.

JUSTICE BOWMAN, dissenting:

I respectfully dissent. I believe that the majority decision of Coyne v. Milan Police PensionBoard, 347 Ill. App. 3d 713, 727-30 (2004), as set forth in section 5, "Physicians' Certificates ofDisability," correctly interprets section 3--115 of the Illinois Pension Code (40 ILCS 5/3--115 (West2002)). I fully and completely adopt the Coyne majority's analysis and reasoning.

Because the majority in the case sub judice did not address the other issues raised on appeal,I restrict my dissent to the majority's interpretation of section 3--115 of the Pension Code.