FIFTH DISTRICT
March 28, 2003

JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Michael Knight, appeals from an order of thecircuit court affirming the Village of Bartlett Police PensionBoard's decision to deny plaintiff's application for a work-relateddisability pension. The Village of Bartlett (Bartlett), theBartlett Police Pension Board (Board), and its individually namedmembers and various Bartlett officials were named as defendants.

Following a hearing, the trial court upheld the decision of the Village of Bartlett Police Pension Board denying plaintiffMichael Knight's disability pension application. On appeal,plaintiff argues that: (1) the Board erred in finding that he wasnot disabled; (2) the Board should have found that his disabilitywas duty-related; and (3) in the alternative, the Board should havefound that his disability was non-duty-related. For the followingreasons, we reverse the decisions of the trial court and the Boardand enter judgment in favor of plaintiff, Michael Knight.

BACKGROUND

On January 10, 2000, Michael Knight (plaintiff), filed anapplication with the Board seeking a duty-related disabilitypension. At the May 8, 2000, the Board held a hearing to considerplaintiff's application, plaintiff testified that he had been apolice officer in Bartlett for over 16 years. Before joining theBartlett police department, plaintiff was a Cook County deputysheriff for four years. Plaintiff was always a patrolman inBartlett. In 1997, he was assigned to the Metropolitan EnforcementGroup (MEG) of Cook County. MEG was a narcotics task force, andits officers were involved in undercover drug-buy operations. Plaintiff testified that as a MEG officer, he had made 50 to 75arrests, and the majority of these arrests involved physicalstruggles with the arrestees. While assigned to MEG, plaintiff hadbeen hit in the face and his life had been threatened.

In January 1999, plaintiff's ex-girlfriend lodged a complaintagainst him. Because he was a MEG officer, he was investigated bythe Illinois State Police. The State Police investigation clearedplaintiff. After the state's investigation, the Bartlett policedepartment launched it own internal investigation of plaintiff. Bartlett found plaintiff had used his official cell phone forpersonal calls and had taken long lunch breaks.

Plaintiff testified that while he was working as an undercoverofficer and being investigated by internal affairs, he starteddeveloping emotional problems, had difficulty sleeping and hadrecurring nightmares. Plaintiff further testified that he had manynightmares of going into a staff meeting and shooting at people inthe meeting.

In March 1999, plaintiff was reassigned back from MEG to the Bartlett police department as a patrolman. In June 1999, while theBartlett internal investigation was still underway, plaintiff hada verbal altercation with Bartlett Police Chief Daniel Palmer(Chief Palmer) during which plaintiff demanded the internalinvestigation on him be ended. As a result of the altercation,plaintiff received a five-day suspension.

On cross-examination, plaintiff testified that he dreamed ofshooting Chief Palmer, Deputy Chief Dan Maloney and Bob Nicholas. Plaintiff believed these people were carrying out a personalvendetta against him. Plaintiff further testified that because he"started feeling the nightmares during daytimes," he went to seeDr. Julia Klco for help. Dr. Klco, a psychologist, recommendedthat plaintiff take a three-month stress leave from the policedepartment because of his homicidal ideation. On June 6, 1999,plaintiff applied for and received from the police department athree-month leave due to stress. At the end of the leave,plaintiff was asked to surrender his police identification card and his badge and he was not allowed to return to work as a policeofficer. After not being allowed to return to work, plaintifffiled a disability petition with the Board. Throughout thehearing, plaintiff maintained that he did not believe he wasdisabled, and he wanted to resume his job as a police officer.

Plaintiff's fiancée, Stephanie Zizek, testified that she wasliving with plaintiff. She had seen and heard plaintiff "moaning,yelling and shaking" in his sleep. Zizek also testified that shebelieved plaintiff saw Chief Palmer and Deputy Chief Maloney in hisnightmares.

Deputy Chief Maloney testified he had taken disciplinaryaction against plaintiff in the past. However, plaintiff nevermade any threats to him, nor did Deputy Chief Maloney ever hearthat plaintiff had threatened any other employees in thedepartment.

Chief Palmer testified that he had worked for the Bartlettpolice department since 1979. He had been the chief of police forthe last seven years. Throughout these years, Chief Palmer hadworked with plaintiff in various capacities. Chief Palmertestified that plaintiff had became more "aggressive, demanding,and pushy" since his tour in MEG. Chief Palmer further testifiedthat one day in June 1999, plaintiff had walked into his office anddemanded the internal investigation of him be ended. During thisconfrontation, Chief Palmer testified that plaintiff leaned acrossChief Palmer's desk and stuck his finger in Chief Palmer's face. Chief Palmer felt threatened during the confrontation. ChiefPalmer then ordered plaintiff to leave his office. As a result ofthis confrontation, Chief Palmer suspended plaintiff for five days. During the meeting with the police union regarding plaintiff's suspension, Chief Palmer suggested to the unionrepresentative that he advise plaintiff to get an evaluation. Shortly after, Chief Palmer received a report from Dr. Klco statingplaintiff had homicidal ideation. Upon seeing this report, ChiefPalmer immediately ordered plaintiff to see Dr. Chiapetta, whoperformed work for the Bartlett police department. Dr. Chiapettain turn referred plaintiff to Dr. Alexander Obolsky, a specialistin workplace violence. Based on Dr. Obolsky's report, Chief Palmerrequested that plaintiff turn in his police identification andbadge to the department. Chief Palmer then placed plaintiff onadministrative leave pending the ruling on plaintiff's disabilitypension application. Chief Palmer testified that he did notbelieve plaintiff was fit to be a police officer.

On cross-examination, Chief Palmer testified that plaintiffwas an average police officer prior to the MEG assignment. However, Chief Palmer noticed that plaintiff had a severe change inpersonality after he returned from MEG. Chief Palmer furthertestified that he felt threatened by plaintiff's "tone of voice,the body language, his eyes, and the whole thing."

During the hearing, the reports of psychologists Klco andRabin and the report of Dr. Chiapetta were admitted into evidence.The certificates of disability and medical reports of Drs.Alexander E. Obolsky, Sheldon J. Meyers, Arnold Tobin and MichaelRabin were also admitted into evidence before the Board.

Dr. Obolsky, an expert in workplace violence, after havinginterviewed plaintiff for two hours, opined that plaintiff waspermanently disabled, preventing him from performing police work. In the medical report, Dr. Obolsky stated "with a reasonable degreeof medical psychiatric certainty that Officer Knight is currentlyunfit for duty as police officer ***. Officer Knight's unfit statusis duty-related."

Dr. Sheldon J. Meyers, one of the three doctors selected bythe Board, certified that plaintiff was permanently disabled forpurposes of carrying out police work and that plaintiff'sdisability was duty-related. In his medical report, Dr. Meyersconcluded that because plaintiff had homicidal ideation, it wouldnot be appropriate for plaintiff to return to police duty.

Dr. Arnold Tobin, the second doctor selected by the Board,also examined plaintiff for the disability hearing. Dr. Tobin alsocertified that plaintiff was permanently disabled for purposes ofperforming police service. In his report, Dr. Tobin wrote thatplaintiff was unfit for duty as a police officer and that he wassuffering from passive-aggressive personality disorder. Inaddition, Dr. Tobin found plaintiff also had previously sufferedfrom post-traumatic stress disorder, which had been reawakened bythe events of the past few years.

Dr. Richard P. Harris, the third doctor selected by the Board,initially concluded plaintiff was not permanently disabled forpolice service. Dr. Harris opined that plaintiff's problem was nota disability but, rather, an employment problem. In his initialreport, Dr. Harris also pointed out that Knight was "not depictinghimself as impaired so that he can collect disability money." Uponreviewing the opinions of the other doctors, Dr. Harris concludedthat plaintiff had psychological problems but that plaintiff wasnot psychologically disabled.

The Board concluded that, in pertinent part:

"1. ***

2. The applicant suffers from a psychologicalproblem related to employment issues.

3. The applicant due to his severe personality disorder is unfit to return to duty as a police officer with the Village of Bartlett Police Department due to employment issues with the Police Department Administration.

4. The applicant is not entitled to a duty related disability as he is not fully disabled so as to cause retirement or separation from the police service, and that further counseling is needed before he may return to duty."

The Board held that plaintiff was not entitled to either aduty-related disability under section 3-114.1 or a non-dutydisability under section 3-114.2 of the Pension Code (40 ILCS 5/3-114.1, 3-114.2 (West 2000)).

ANALYSIS

STANDARD OF REVIEW

Article III of the Pension Code provides that judicial reviewof the Board's decisions must be in accordance with theAdministrative Review Law (735 ILCS 5/3-101 et seq. (West 1994)).40 ILCS 5/3-148 (West 1994); Robbins v. Board of Trustees of theCarbondale Police Pension Fund, 177 Ill. 2d 533, 537 (1997). TheAdministrative Review Law provides that our review extends to allquestions of law and fact presented in the record before us. Robbins, 177 Ill. 2d at 537-38. The statute limits any court'sreview to the record before it; the court may not hear new oradditional evidence. Robbins, 177 Ill. 2d at 538. The statute alsomandates that the "findings and conclusions of the administrativeagency on questions of fact shall be held to be prima facie trueand correct." 735 ILCS 3-110 (West 2000).

A reviewing court is limited to ascertaining whether suchfindings of fact are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 204 (1998). An administrative agency's factualdeterminations are contrary to the manifest weight of the evidencewhere the opposite conclusion is clearly evident. Belvidere, 181Ill. 2d at 204. An administrative agency's determinationsregarding questions of law are reviewed de novo. Belvidere, 181Ill. 2d at 205. An agency's interpretation of a statute is aquestion of law. Albazzaz v. Department of ProfessionalRegulation, 314 Ill. App. 3d 97, 105 (2000). Determinationsregarding mixed questions of fact and law are not to be disturbedunless they are clearly erroneous. Belvidere, 181 Ill. 2d at 205. As the Board's decision in the instant case involved a mixedquestion of fact and law, we will apply the clearly erroneousstandard in reviewing this case.

DISABILITY

Illinois Pension Code section 3-114.1 provides for a line-of-duty disability pension as follows:

"Disability pension - Line of Duty. If a police officeras the result of sickness, accident or injury incurred inor resulting from the performance of an act of duty, isfound to be physically or mentally disabled for servicein the police department, so as to render necessary hisor her suspension or retirement from the police service,the police officer shall be entitled to a disabilityretirement pension of 65% of the salary attached to therank on the police force held by the officer at the dateof suspension of duty or retirement. A police officershall be considered 'on duty' while on any assignmentapproved by the chief of the police department of themunicipality he or she serves, whether the assignment iswithin or outside the municipality." 40 ILCS 5/3-114.1(West 2000).

In contrast, Pension Code section 3-114.2 sets out thecircumstances under which a police officer is entitled to a non-duty-related disability pension:

"Disability pension - Not on duty. A police officer whobecomes disabled as a result of any cause other than theperformance of an act of duty, and who is found to bephysically or mentally disabled so as to render necessaryhis or her suspension or retirement from police servicein the police department, shall be entitled to adisability pension of 50% of the salary attached to theofficer's rank on the police force at the date ofsuspension of duty or retirement." 40 ILCS 5/3-114.2(West 2000).

Illinois Pension Code section 3-115 provides:

"A disability pension shall not be paid unless there isfiled with the board certificates of the police officer'sdisability, subscribed and sworn to by the police officerif not under legal disability, or by a representative ifthe officer is under legal disability, and by the policesurgeon (if there be one) and 3 practicing physiciansselected by the board. The board may require otherevidence of disability." 40 ILCS 5/3-115 (West 2000).

In this case, it is undisputed that plaintiff filed adisability pension application after the Bartlett police departmentrefused to allow him to continue working as a Bartlett policeofficer. Plaintiff was examined by Dr. Klco, a psychologistreferred by the police union: Dr. Chiapetta, a psychiatristreferred by Chief Palmer; Dr. Rabin, a psychologist referred by Dr.Obolsky (a workplace violence specialist); and three doctorsselected by the Board, Drs. Meyers, Tobin, and Harris.

Dr. Obolsky found plaintiff disabled, stating "with areasonable degree of medical psychiatric certainty that [plaintiff]is currently unfit for duty as police officer ***. [Plaintiff's]unfit status is duty-related." Dr. Sheldon J. Meyers concludedplaintiff was permanently disabled and "unfit for duty because ofhomicidal ideation." Dr. Arnold Tobin opined plaintiff waspermanently disabled because he was "unfit for duty as a policeofficer and that he [was] suffering from a passive-aggressivepersonality disorder."

Dr. Richard Harris was the only doctor who expressed anopinion that plaintiff was not disabled. Dr. Harris initiallyconcluded plaintiff was not disabled because he had "an employmentissue rather than a disability." However, upon reviewing the otherdoctors' reports, Dr. Harris commented:

"The review of psychological testing would suggest thatOfficer Knight has quite severe psychological problems. For instance, there are references to delusionalthinking, borderline personality characteristics,schizoid features and repressed hostility and anger ***. The statement 'they may display disturbed thinking, including delusions of persecution or grandeur inideas of reference' suggests severe pathology."

Dr. Harris discounted the results of the psychological testingand concluded:

"Officer Knight does have psychological problems ***. However, such problems are a function of longstandingpatterns of functioning, thinking and feeling. In otherwords, he is not suffering from an acute disturbance thatis causing a significant limitation in his overallfunctioning. He is not psychologically disabled. Lackof fitness for duty and disability are not one and thesame. The department apparently believes he does nothave the psychological capacities to function effectivelyas a police officer. If he were applying to be a policeofficer at this time, he would not be offered a job. Thelack of offer would not be due to the fact that he haspsychiatric disability."

In this case, Drs. Obolsky, Meyers and Tobin found plaintiffwas permanently disabled because he was "unfit" to be a policeofficer. Dr. Harris similarly concluded plaintiff had a "lack offitness for duty" and yet he was not psychologically disabled. Therecord indicates Dr. Harris used the phrase "lack of fitness forduty" to describe plaintiff as no longer being capable ofperforming the duties of a police officer. Thus, "lack of fitness"is synonymous with "unfit." As stated earlier, all of the otherdoctors stated plaintiff was "unfit" because (1) he was"permanently disabled" (Dr. Obolsky); (2) he was permanentlydisabled because of "homicidal ideation" (Dr. Meyers); and (3) hewas permanently disabled due to his suffering from a "passive-aggressive personality disorder" (Dr. Tobin).

In addition, the nonmedical evidence supports the conclusionthat plaintiff was disabled. Plaintiff's fiancée testifiedplaintiff was moaning, yelling and shaking in his sleep. Plaintifftestified that he dreamed of going into a staff meeting shootingpeople. Plaintiff further testified that he "started feeling thenightmares during daytimes." Plaintiff served as a police officerwithout incident for more than 20 years. During that time, it isapparent that Knight had the psychological capacity to functioneffectively as a police officer. Chief Palmer testified thatplaintiff had severe personality changes after his MEG tour ofduty. The evidence was compelling that plaintiff was no longercapable of working as a police officer.

In denying plaintiff's disability pension, the Board reliesupon Dr. Harris's finding that Knight is not psychologicallydisabled. Dr. Harris never changed his opinion that Knight was fitto return to duty without restriction. He merely said that the"department apparently believes he does not have the psychologicalcapacities to function effectively as a police officer."

After considering all of the evidence, the Board found thatKnight "suffers from a psychological problem related to employmentissue" and had "a severe personality disorder which made him unfitto return to duty as a police officer *** due to employmentissues." These findings support a finding of disability.

Section 3-114.2 of the Pension Code provides: "A policeofficer who becomes disabled as a result of any cause other thanthe performance of an act of duty, and who is found to bephysically or mentally disabled so as to render necessary his orher suspension or retirement from police service in the policedepartment, shall be entitled to a disability pension of 50% ***." 40 ILCS 5/3-114.2 (West 2000). Section 5-115 of the PensionCode defines disability as "[a] condition of physical or mentalincapacity to perform any assigned duty or duties in the policeservices." 40 ILCS 5/5-115 (West 2000). In its written decision,the Board stated: "The Pension Board agrees that Officer Knightwith his present mental state should not be returned to duty as apolice officer."

When the Board found that Knight's "mental condition" renderednecessary his suspension or retirement from police service, it could not deny Knight a disability pension based on the opinion ofone of its own experts who did not find him unfit for duty. In hisconclusion, Dr. Harris commented that the police department itselfbelieved that Knight did not have the psychological capacity tofunction effectively as a police officer. This clearly amounts toa "condition of *** mental incapacity to perform any assigned dutyor duties in the police service." This is the definition ofdisability as found in section 5-115 of the Pension Code. 40 ILCS5/5-115 (West 2000).

The Board's conclusion stated that plaintiff was "not entitledto a duty related disability as he is not fully disabled so as tocause retirement or separation from the police service, and thatfurther counseling is needed before he may return to duty." TheBoard's conclusion that plaintiff was "not fully disabled so as tocause *** separation from the police service" is directlycontradicted by the Bartlett police department's own actions inremoving plaintiff from his job and refusing to return him to duty. As such, the Board's factual finding that plaintiff was not fullydisabled is against the manifest weight of the evidence and itsdecision to deny plaintiff a disability pension is clearlyerroneous.

On appeal, the Board cites to Wall v. Police Pension Board,178 Ill. App. 3d 438 (1988), and Daily v. Board of Trustees of thePolice Pension Fund, 251 Ill. App. 3d 119 (1993), as support. Defendants' reliance on these cases is misplaced.

In Wall, the issue on appeal was whether Officer Wall wasentitled to a job-related disability pension. Wall was examined byfive doctors. The first two doctors had seen Wall on two occasionsand had written a joint letter to the Board stating that Wall wassuffering from the separation from his wife 1