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No. 3--06--0865 ______________________________________________________________________________ Filed October 5, 2007. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 ANDREW ROSZAK, ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court for the 21st Judicial Circuit Kankakee County, Illinois No. 06-MR-14

Plaintiff-Appellant, v. KANKAKEE FIREFIGHTERS' PENSION BOARD,

Defendant-Appellee.

Honorable Kendall O. Wenzelman Judge, Presiding.

______________________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ______________________________________________________________________________ Applicant Andrew Roszack, a firefighter-paramedic employed by the Kankakee Fire Department, filed for a line of duty disability pursuant to the Illinois Pension Code (40 ILCS 5/4-110 (West 2006)), with appellee Kankakee Firefighters' Pension Board (hereinafter the Board). The Board denied his request for disability and applicant appealed to the circuit court of Kankakee County. The circuit court denied applicant's request for disability and affirmed the decision of the Board. Applicant has now appealed the circuit court's ruling, claiming that the Board's decision to deny him disability was against the manifest weight of the evidence. We reverse the decision of the circuit court and remand for further proceedings in accordance with this opinion.

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FACTS Applicant filed his application for disability pay with the Board on September 10, 2004. Two hearings were held with regard to the matter, one on February 17, 2005, and a concluding hearing on August 25, 2005. At the February 17 hearing, applicant was the only witness to take the stand. Applicant testified as follows. Applicant was employed as a firefighter-paramedic with the Kankakee Fire Department at the time of the injury. He had been hired by the department in September 2000. His duties included responding to and mitigating emergency situations and fire inspections and investigations. On December 2, 2003, while on duty, he responded to a call and upon arrival found an elderly female patient, between 300 and 400 pounds, on the floor. He and his female partner began to lift the woman to place her on to the stretcher, but as they did so, the wheels got caught and bound up on a rug, causing the wheels not to lock into place and properly deploy. They had to juggle the woman and try and gently lower her to the ground, which they did. At this time applicant and his partner experienced some pain in their upper backs. Backup was called to help transport the woman to the hospital, and applicant then sought medical attention for his back. The following day, December 3, 2003, applicant was examined by Dr. J. Michael Panuska, the city's occupational health/workers' compensation doctor. In January 2004 applicant saw Dr. George Charuk, who gave him pain medication and kept him on lifting limitations. Applicant then saw his family doctor, Dr. Samuel Deguzman, in March 2004 who referred him to Dr. Benjamin Goldberg. Dr. Goldberg recommended surgery to applicant as his best opportunity for getting better and returning to work. Surgery was scheduled three times between April and August 2004 but had to be repeatedly postponed due to insurance problems with workers' compensation refusing to pay 2

for the surgery. Workers' compensation finally authorized the surgery and it was performed on August 31, 2004, by Dr. Goldberg. Applicant testified that he had been in pain since the injury happened and he elected to get surgery so that he would have the chance to come back to work. After the surgery, he was still no better. At the time of the hearing, he had pain under his left shoulder blade, which was always present. If he was on his feet for a long period of time, the pain increased. He could not raise his left arm above his head. On cross-examination by the Board, applicant revealed that he was 25 years old. He still loved his job and did not want to quit. As of the hearing date, he was employed as a cardiopulmonary resuscitation, or CPR, instructor at Kankakee Community College on a part-time basis, a nonphysical job. As of that date, he was not getting workers' compensation payments. A dispute then arose between applicant and the Board as to applicant's present address. The Board inquired as to the applicant's current address and the applicant responded that he did not have a current address at that time but had been staying with his mother, sister, and other family members. He listed a post office box address where he could be contacted. After much confusion and back and forth, with the Board persisting on wanting to know where the applicant was residing, applicant provided his mother's address. The hearing was adjourned after some more questions. The hearing resumed on August 25, 2005. Since the first hearing, applicant had undergone a magnetic resonance imaging, or MRI. The first witness called in the second hearing was Dr. Panuska. He testified as follows. Dr. Panuska first described what the MRI conducted on applicant on May 17, 2005, revealed. Namely, it indicated that there had been some surgical repair. Dr. Panuska testified that when 3

applicant first came to see him immediately after the incident in December 2003, he never found any evidence of a shoulder injury but, rather, diagnosed him with a thoracic strain. After that Panuska referred him to another doctor and lost track of the case. Panuska testified that applicant seemed to have full range of motion at the initial exam, but now, after surgery, the longer he goes without rehabilitation the worse the injury will get. Panuska admitted that lifting a heavy patient could cause the type of injury exhibited by applicant. He also admitted on cross-examination that the thoracic area where he diagnosed applicant's strain on December 2, 2003, also covered the scapula area, which was the shoulder blade. Panuska admitted that it was not farfetched to believe that the shoulder blade had been involved from the initial time when it covers the same area as the thoracic area. Panuska concluded by testifying that while it was unlikely applicant's shoulder injury could get 100% better, he could improve over time with more therapy, but at that moment, applicant could not do his job. Applicant was then called to the stand to continue testifying. Applicant admitted that he had not been doing any physical therapy since the latest MRI. He had last undergone physical therapy in December 2004 but had to stop due to the pain. He tried to do some home rehabilitation after the surgery, but stopped because the pain was too great. Applicant described his injury as two distinct periods: injury to surgery, and surgery to the present. Between his initial injury and the surgery, he was not having the range of motion problems he was experiencing now. He was able to get his arm above his head (albeit painfully). He always, however, had persistent pain under left shoulder and limited lifting capacity. Rehabilitation efforts made it worse. After the surgery, he had severe range of motion problems with his left arm and shoulder. The Board then cross-examined applicant over the photo of him snorkeling on vacation in 4

2004 prior to the surgery. The Board produced a photo of applicant on vacation, head out of water, appearing to raise his right hand. Applicant argued that it was his right hand that was above the water in the photo, not the left. The issue was left somewhat unresolved and the photo was entered into evidence. The Board next confronted applicant over his surgery cancellations in 2004. The Board contended that a nurse at the hospital where the surgery was to be performed had written down that workers' compensation had approved the surgery in June but that applicant did not return the nurse's call because he was out of town and cancelled surgery due to his inability to find a ride. Applicant disputed the nurse's version, saying that his lawyer and workers' compensation nurse were saying the surgery was not approved. Applicant noted that, up to the present day, the surgery bill has not been paid by workers' compensation. The Board also cross-examined applicant on his income and net worth. After much back and forth, applicant admitted he made, on average, depending on how much his part-time job required him to work, $1,000 a month. He has $10,000 in the bank from the sale of his house. At the hearings, various exhibits provided by the Board and applicant were admitted into evidence. Among the Board's exhibits were applicant's functional capacity evaluation of March 1, 2004, conducted at Riverside HealthCare Clinic, which indicated that he was a potentially excellent candidate for rehabilitation, but that he did not magnify his symptoms and gave full physical effort during the exam. Also entered by the Board was a letter from Dr. Goldberg on April 9, 2004, noting that an MRI revealed either a full-thickness or near-full-thickness rotator cuff tear, and that the applicant had two decisions: either to live with the injury (in which case he is at maximum medical improvement and will likely not get better) or have surgery to repair the injury (in which case he 5

would need extensive therapy, but after six months or so could possibly resume being a fireman). Goldberg also commented that he believed applicant's current injuries were related to the accident on December 2, 2003. Also included were reports from three doctors selected by the Board to review applicant's case. The first, by Dr. Terrence Moisan, dated December 15, 2004, stated that applicant should be able to recover after the surgery. Moisan was also "perplexed as to the relationship of his shoulder to the work injury" because the symptoms of left infrascapular pain did not seem to be related to the shoulder. Nevertheless, whatever the cause of the injury, applicant was at the time incapable of performing his duties as a firefighter. The second, by Dr. Joseph G. Thometz, dated December 16, 2004, found the applicant had left shoulder and scapular pain and was not capable of returning to his job as a firefighter. Further, the current medical condition was a result of his work-related injury from December 2, 2003, and that his current cause of disability was limited range of motion and strength for the left shoulder. The third report, from Dr. William C. Malik, dated February 4, 2005, found that applicant's current medical condition was a result of the injury suffered on December 2, 2003, and that he was disabled from full duty as a firefighter due to the failed rotator cuff surgery. The Board issued its decision on December 14, 2005. The following "Findings of Fact" were made by the Board:

"According to Dr. Panuska, there was no initial evidence of a shoulder injury; his diagnosis was a strain of the upper back. It was also Dr. Panuska's opinion that at the time of the hearing, full recovery of Mr. Roszak is difficult to predict for three reasons: 6

(1) lack of aggressive post-surgery rehabilitation; (2) the length of time from the surgery; (3) presence of atrophy of the muscles. According to Dr. Panuska, after his initial examination of the applicant, he recommended aggressive rehabilitative treatment, which did not occur. Dr. Panuska also testified that when he first examined the applicant, he had full range of motion in the left shoulder. On cross-examination, Dr Panuska indicated that Mr. Roszak did not avail himself to rehabilitative treatment and therapy in order to obtain maximum rehabilitation to effect recovery. After Dr. Panuska testified, the applicant admitted that he only tried physical therapy on three occasions, but could not complete the physical therapy sessions. The applicant further testified that his last physical therapy session was December 9, 2004, about two months after he filed his application for a disability pension. The applicant also indicated that he did not begin any rehabilitation with a physical therapist at until twelve to eighteen weeks after his shoulder surgery. Mr. Roszak stated that he cannot lift his arm above his shoulder and is always in great pain. However, his physical therapy report showed that he tolerated therapy and pain rather well. The evidence introduced at the hearing also indicated that according to Mr. Roszak's own website, [h]e was able to go snorkeling in Cancun, without a problem. Board Exhibit M shows Mr. Roszak waving to the camera while snorkeling. However, according to the applicant, he cannot identify himself in the picture. 7

The Pension Board selected Dr. Terrence C. Moisan to conduct an independent medical examination (IME) in this case. In his report, Dr. Moisan states that he is perplexed as to the relationship of Roszak's shoulder injury to the work injury. Dr. Moisan also indicated that the applicant will improve substantially if he would continue therapy with his treating physician, Dr. Goldberg. Dr. Moisan indicated after reviewing the MRI that there was surgical success in treating the injury. Dr. Moisan also stressed in his latest report as to the importance of the applicant undergoing further physical therapy and work hardening. According to this report, the latest MRI would not be inconsistent with Roszak's ability to return to work. *** In a subsequent report, Dr. Thometz states that the applicant's latest MRI report did not show evidence of a recurrent or residual rotator cuff tear. Despite the lack of objective findings above, Dr. Thometz indicates that the cause of disability is limited range of motion and strength in the left shoulder. determination is based upon what the applicant told this physician. The third physician conducting an MRI for the Pension Board was Dr. William Malik. Dr. Malik describes the applicant's condition as a failed rotator cuff surgery. In a supplemental report, Dr. Malik concludes that Roszak suffers from `tendinopathy of the supraspinatus tendon without a discrete tear identified, surgical repair noted.' Dr. Malik concludes that Roszak is permanently disabled. The medical documentation admitted into evidence in this case is in dispute 8 This subjective

as to what Mr. Roszak's physical condition is and what caused the condition. The applicant testified at the first hearing that he was not being allowed to see his treating physician because his bills were not being paid and he has not been able to see his treating physician since January of 2005. He also claimed at the initial hearing that his surgery was denied for nine months and he does not know why. However, according to applicant's Exhibit 2, the surgery was cancelled because Mr. Roszak was out of town on vacation and he did not return the doctor's phone calls. During the hearing, the applicant was evasive and at times refused to answer questions proffered by the Board. For example, he initially refused to give a residence address, he refused to state what he is currently earning, and refused to answer questions as to his net worth. Mr. Roszak testified that he is in constant pain, but cannot and has not seen any treating physician for months. Based upon the applicant's evasive testimony and lack of candor, the Board concludes that the applicant was not a credible witness."

The Board then conducted its analysis of whether the applicant was disabled. The Board found that the applicant was not disabled. The Board concluded that applicant's lack of credibility adversely impacted his claim that he was disabled for a number of reasons. The Board found he was evasive in answering questions about where he lived and worked and what he earned. The Board also believed that applicant magnified his symptoms. As evidence of this, it pointed to his snorkeling vacation, surgery postponements, and failure to see a doctor in months. It also believed that he 9

exacerbated his injuries by not, as Dr. Panuska suggested, seeing a doctor for months after the surgeries. Although applicant blamed this on workers' compensation and affordability issues, the Board did not find applicant credible and pointed to his assets in the bank. The Board also pointed to Dr. Panuska's testimony regarding applicant's full range of motion in the January 2004 examination and the conclusion by Dr. Goldberg that the surgery was successful. The Board

concluded that if the injury was as serious as applicant contended, he would have taken reasonable medical steps to promote recovery. Finally, the Board cited medical evidence to support its position, such as Dr. Panuska's January 2004 findings that the applicant had full range of motion in his arm, Goldberg's proclamation of successful surgery, and the reports of the Board-appointed examining physicians who concluded that the surgery had repaired the injury. The Board also discounted those same appointed physicians who determined that applicant was still disabled because that was based on their subjective determinations of what the applicant, whom the Board declared not credible, had told them. In the alternative, even if it were to conclude that applicant was disabled, the Board determined that applicant would still not be entitled to disability because he had not taken the reasonable steps to rehabilitate his shoulder after surgery. Following the Board's decision, applicant appealed to the circuit court of Kankakee County. The circuit court affirmed the Board's decision, and applicant now appeals to this court. ANALYSIS On appeal, applicant contends that the decision of the Board denying him disability benefits was against the manifest weight of the evidence. In support of this contention, applicant argues that all of the medical opinion of record indicated he was disabled from his duties as a firefighter due to 10

an injury suffered on the job and thus the Board's decision was wrong. The Board argues that there was medical evidence showing that applicant was not disabled. Further, the Board argues that even if applicant were determined to be disabled, he was not entitled to disability pay because he failed to take reasonable steps to remedy his condition as required by the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2006)). When deciding an appeal from a judgment in an administrative review proceeding, the appellate court reviews the administrative agency's decision, not the trial court's decision. Harroun v. Addison Police Pension Board, 372 Ill.App.3d 260, 261-62, 865 N.E.2d 273, 275 (2007). "Rulings of law are reviewed de novo, but the agency's findings of fact will be upheld unless [they are] against the manifest weight of the evidence." Harroun, 372 Ill.App.3d at 262, 865 N.E.2d at 275. An administrative agency's decision on a mixed question of law and fact will only be reversed if the decision was clearly erroneous. Harroun, 372 Ill.App.3d at 262, 865 N.E.2d at 275. The Board's decision will be reversed only if it was against the manifest weight of the evidence. The applicant has the burden of proving that he was entitled to the disability pension. Evert v. Board of Trustees of the Firefighters' Pension Fund of the City of Lake Forest, 180 Ill.App.3d 656, 661, 536 N.E.2d 143, 146 (1989). "`[A]n administrative agency['s] decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident.'" Thigpen v. Retirement Board of Fireman's Annuity and Benefit Fund of Chicago, 317 Ill.App.3d 1010, 1017, 741 N.E.2d 276, 281 (2000). The reviewing court must not substitute its own judgment for that of the administrative agency and should affirm the agency's decision if the record contains evidence to support the agency's findings. Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281. "It is not sufficient that there are mere conflicts in the testimony or that an opposite conclusion might be 11

reasonable; since the weight of the evidence and the credibility of the witnesses are within the province of the agency, there need be only some competent evidence in the record to support its findings. Evert, 180 Ill.App.3d at 660, 536 N.E.2d at 146. The provisions governing firefighters' pensions must be liberally construed in favor of the applicant. Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281. In order for an active fireman to be entitled to duty disability benefits, he must establish: (1) that he is disabled; and (2) that his disability was caused by an injury incurred in or resulting from an act of duty. 40 ILCS 5/6-151 (West 2006); Thigpen, 317 Ill.App.3d at 1017, 741 N.E.2d at 281-82. Disability is defined as: "A condition of physical or mental incapacity to perform any assigned duty or duties in the fire service." 40 ILCS 5/6-112 (West 2006). An act of duty is defined as: "Any act imposed on an active fireman by the ordinances of a city, or by rules or regulations of its fire department, or any act performed by an active fireman while on duty, having for its direct purpose the saving of the life or property of another person." 40 ILCS 5/6-110 (West 2006). Further, when a firefighter applies for benefits, the Pension Code provides: "Proof of duty, occupational disease, or ordinary disability shall be furnished to the Board by at least one licensed and practicing physician appointed by the Board." 40 ILCS 5/6-153 (West 2006). Before granting a disability benefit, the Board must receive proof that the applicant is disabled from at least one physician appointed by the Board. Thigpen, 317 Ill.App.3d at 1018, 741 N.E.2d at 282. 12

In the instant case, there is no dispute that the injury in question arose during the course of applicant's active duty as a fireman. He was helping a 300- to 400-pound woman onto a stretcher after an emergency call when he felt a pain in his shoulder and back. What is at issue, however, is whether that accident caused him to become disabled so as to be eligible for disability benefits under the pension statute. The Board's analysis in that regard is problematic. Several of the Board's crucial findings used to deny applicant's disability were against the manifest weight of the evidence. We will address each finding in turn. First, the Board cites what it believes to be applicant's credibility problems. In support of this contention, the Board lists four instances where it believes applicant was being less than truthful and thus destroyed his credibility with the Board. The first instance cited by the Board is the applicant's "evasiveness" in responding to questions about where he lived, where he worked, what he earned, and his current net worth. We find that the applicant's answers to those questions, while at times seemingly evasive, do not impact on the applicant's veracity concerning his injury. We first note that these issues were tangential at best to the issue before the Board, namely, whether applicant was disabled from the injury. With regard to his current address, the following exchange was had between applicant and the Board:

"MR. PUCHALSKI: Just one other question. What is your current resident address? THE WITNESS: As I said, I don't have a permanent resident address at this time. MR. PUCHALSKI: Well, you have to be living somewhere. 13

THE WITNESS: Well, I've been staying with my mom and family members and my sister. P.O. Box 1881, Kankakee, Illinois. MR. PUCHALSKI: Okay. You don't live in a P.O. Box. What I'm asking you is, what is your resident address? Where are you residing as we sit here today? THE WITNESS: I don't have a permanent address. MR. HARMON: Where do you sleep at? THE WITNESS: I can sleep with my mom or my sister or my friends or my nephews. MR. PUCHALSKI: Okay, my question is, as we sit here today, where are you staying? Where are you living? Where are you residing? THE WITNESS: And I just told you, I'm residing with friends and family members. MR. PUCHALSKI: Well, give me the address is all I'm asking. I don't know why this is such a big deal. THE WITNESS: I don't know why it is either. My address is P.O. Box 1881, Kankakee, Illinois. If you need to write me a letter, that's where I can get it. MR. PUCHALSKI: Is there a reason why you don't want to tell us where you're residing? THE WITNESS: No. I don't have any money coming in right now. I don't have money to buy an apartment or anything like that. Would you like my mom's address? Is that what you're asking? MR. PUCHALSKI: I'm asking you where you are living today as we speak. Where did you get up and get dressed? 14

THE WITNESS: 501 Stoney Ridge Court. MR. PUCHALSKI: 501 Stoney Ridge Court. THE WITNESS: Valparaiso, Indiana, 46385. MR. PUCHALSKI: And that was your abode as of today? THE WITNESS: That's my mother's address. MR. PUCHALSKI: Okay. But that's not what I'm asking you. And the only reason

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