Cox v. The Board of Trustees of the Kankakee Police Pension Fund

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 220213-U

Order filed June 21, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

RICHARD COX, ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, Plaintiff-Appellant, ) Kankakee County, Illinois, ) v. ) Appeal No. 3-22-0213 ) Circuit No. 21-MR-305 ) THE BOARD OF TRUSTEES OF THE ) KANKAKEE POLICE PENSION FUND, ) Honorable ) Brenda L. Claudio, Defendant-Appellee. ) Judge, Presiding. ___________________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Brennan and Davenport concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Denial of a police officer’s application for a line-of-duty disability pension was affirmed on administrative review because the Board’s determination, that the police officer failed to establish his injury was causally connected to an act of duty, was not against the manifest weight of the evidence.

¶2 In an action to review the final decision of an administrative agency, the plaintiff, Richard

Cox, appeals the trial court’s order affirming the decision of the defendant, the Board of Trustees

of the Kankakee Police Pension Fund (Board), to deny him a line-of-duty disability pension. *2 ¶3 I. BACKGROUND ¶4 Cox joined the Kankakee Police Department (Department) on March 27, 2000, as a police

officer. On April 15, 2022, Cox filed his application for a line-of-duty disability pension pursuant

to section 3-114.1 of the Illinois Pension Code (Pension Code) (40 ILCS 5/3-114.1 (West 2020)),

and alternatively, a not-on-duty disability pension pursuant to section 3-114.2 of the Pension Code

(id. §3-114.2). Cox’s disability claim was premised on an injury to his right shoulder he maintained

occurred on October 19, 2017, while he attempted to restrain an unruly female in the emergency

room at Riverside Hospital (incident). ¶5 The Board held an administrative hearing on June 18, 2021. With the parties’ agreement,

the Board admitted all written medical reports of examinations and other documentation into

evidence, in lieu of live testimony. Cox testified at the hearing that, on October 19, 2017, he

experienced pain in his right shoulder during the incident, but did not seek immediate treatment

because he believed that he only strained a muscle. Cox testified that he informed his supervisor,

Lieutenant David Skelly, of the injury when he returned to the station. Cox completed a “Field

Report” detailing the incident from earlier that day, but did not disclose a shoulder injury. ¶6 After the incident, Cox continued to work full-time without restriction. On March 23, 2018,

Dr. Ryan Sullivan treated Cox for a right knee injury he experienced descending the stairs at his

home the day before. Three days later, on March 26, 2018, Cox sought medical treatment, for the

first time, for his shoulder from Dr. Michael Corcoran. On April 3, 2018, an MRI revealed Cox

had a torn rotator cuff and possible torn labrum in his right shoulder. ¶7 On April 9, 2018, Cox provided written notice of his shoulder injury to the Department for

the first time by filing the “Employee Injury Report and Supervisor’s Initial Investigation Report.”

In a letter dated April 14, 2018, to Commander Christopher Kidwell, Skelly stated that Cox spoke

with him on or about March 31, about an injury he received on October 19, 2017, at Riverside

Hospital. He detailed the incident as Cox recalled it and added, “Cox advised me that I was

working on the date of the injury and he stated that following the call he came to the station and

advised me that he may have injured his shoulder during the removal.” Skelly stated, “I do not

remember that conversation[]” and noted “I try to make it my practice to complete an Officer

Injury Report any time an Officer states that they have been injured while on the job whether the

Officer wished to have the injury checked at that time or not.” No such report was filed on the date

of the incident. ¶8 On June 3, 2018, Cox underwent outpatient arthroscopic right shoulder rotator cuff repair.

Following surgery, Cox never returned to full duty police work. ¶9 Cox filed a collateral claim pursuant to the Illinois Workers’ Compensation Act (820 ILCS

305/1 et seq. (West 2018)) for the same incident and injury. Cox presented to Dr. Troy Karlsson

for an independent medical examination. Dr. Karlsson’s report, dated January 15, 2019, provided

that Cox’s reported cause of injury would only stand if there was corroborative evidence from

other police personnel or reports from the incident. In response to whether Dr. Karlsson’s diagnosis

was causally related to the incident, he reasoned that without corroborating evidence, he would

consider the injury the result of a degenerative change. ¶ 10 On February 20, 2020, Cox underwent a Functional Capacity Assessment (FCA), which

concluded he was capable of performing at the “heavy” demand level of his full-duty job

description. Dr. Karlsson examined Cox again and provided a supplemental report dated March

16, 2020, stating that he believed Cox would be safest working in a position that did not require

public contact or the potential for the need for physical confrontation or physical defense of himself

or others. He noted that, although the FCA showed Cox could be at a heavy activity level for his

job description, Cox reported having pain and a feeling of weakness in the shoulders and that he

would not feel safe if he were in a confrontation. Dr. Karlsson stated that Cox’s diagnosis was

causally related to the incident. He offered no written explanation as to the change in his causation

opinion from his previous examination. ¶ 11 Dr. Corcoran, Cox’s original treating physician, examined him on March 2, 2020, and

placed him at maximum medical improvement and approved his return to work with light-duty

work restrictions. Cox continued light-duty work with the Department until May 1, 2020. ¶ 12 Three independent medical providers examined Cox: Dr. Nikhil Verma, Dr. Jeffrey

Williamson-Link, and Dr. Prasant Atluri. Each reviewed Cox’s medical records and job

description detailing the requirements of a police officer for the Department. In his report, dated

March 8, 2021, Dr. Verma opined, “patient does have a current disability of his right shoulder that

prevents him from performing full service as a police officer.” In his report, dated March 23, 2021,

Dr. Williamson-Link opined, “the applicant is disabled from performing full duties in the police

department.” In his report, dated April 1, 2021, Dr. Atluri relied on the FCA to conclude “[b]ased

upon the available information, Officer Cox is not disabled from resuming his full duties in the

police department.” Each physician also opined that the medical records were consistent with the

history provided by Cox and the incident served as the cause of Cox’s injury. ¶ 13 The Board found Cox suffered a shoulder injury, resulting in disability, but the injury was

not causally connected to an act of duty in his role as a police officer. The Board believed that

Cox’s testimony about his right shoulder injury and the way he alleged it occurred was confusing

and conflicting. The Board emphasized that the evidence did not support the claim that the incident

in question either caused or contributed to his disability. Specifically, the Board noted (1) Cox

claimed that the pain in his right shoulder was experienced immediately after the incident in

October 2017, but there was no record of such until March 2018; (2) if Cox experienced significant

strain in his right shoulder or chest during the incident, which resulted in a 90% partial thickness

tear of the cuff, he would have immediately expressed the same to Riverside Hospital where the

incident took place; (3) the police “Field Report” providing a detailed description of the incident

did not mention any evidence that Cox sustained an injury; (4) Cox claimed that he informed

Skelly of his injury the same day when he returned to the station, but Skelly provided that he

completes an injury report anytime an officer reports they have been injured on the job and no

injury report was completed until almost six months after the incident; and (5) Cox continued to

work unrestricted and on full duty after the incident until his first shoulder treatment in March

2018. For these reasons, the Board denied Cox’s application for a line-of-duty disability pension

and granted his request for a not-on-duty disability pension. ¶ 14 Cox filed a petition for review in the circuit court, asking the court to reverse the Board’s

decision. The trial court affirmed, and Cox appealed. ¶ 15 II. ANALYSIS ¶ 16 In administrative review cases, the appellate court reviews the decision of the

administrative agency, not the circuit court. Marconi v. Chicago Heights Police Pension Board,

225 Ill. 2d 497, 531 (2006). When the question presented is whether the record evidence supports

denial of the plaintiff’s application for a disability pension, it is a question of fact. Id. at 534. The

findings and conclusions of the Board as to questions of fact shall be held to be prima facie true

and correct. Id. at 534 (citing 735 ILCS 5/3-110 (West 2002)). Questions of fact are reviewed

under the manifest weight of the evidence standard. Wade v. City of North Chicago Police Pension

Board, 226 Ill. 2d 485, 504 (2007). A decision is against the manifest weight of the evidence if the

opposite conclusion is clearly evident or if the findings are unreasonable, arbitrary, and not based

on any of the evidence. Scepurek v. Board of Trustees of Northbrook Firefighters’ Pension Fund,

2014 IL App (1st) 131066, ¶ 17. The Board must judge the credibility of the witnesses, assign

weight to the evidence, and resolve conflicting evidence. Id. ¶ 31. This court, therefore, must affirm

the Board’s decision where there is competent evidence in the record supporting it. Covello v.

Village of Schaumburg Firefighters’ Pension Fund, 2018 IL App (1st) 172350, ¶ 48. However, we

are mindful that under the manifest weight standard, the deference courts afford the administrative

agency’s decision is not boundless. Wade, 226 Ill. 2d at 507; see also Bowlin v. Murphysboro

Firefighter’s Pension Board of Trustees, 368 Ill. App. 3d 205, 210-12 (2006) (a court’s review

“cannot amount to a rubber stamp of the proceedings below”). ¶ 17 The Pension Code provides for a not-on-duty pension and a line-of-duty pension for

permanently disabled police officers. 40 ILCS 5/3-114.1, 5/3-114.2 (West 2018). To receive a line-

of-duty pension, the disabled officer must show that the disability was incurred in or resulted from

the performance of an “act of duty.” 40 ILCS 5/3-114.1 (West 2018). The duty-related accident is

not required to be the originating or primary cause of the injury, although a sufficient nexus

between the injury and the performance of the duty must exist. Luchesi v. Retirement Board of the

Firemen’s Annuity & Benefit Fund of Chicago, 333 Ill. App. 3d 543, 550 (2002). Causation is an

issue of fact for the Board’s consideration. See Kouzoukas v. Retirement Board of Policemen’s

Annuity & Benefit Fund of City of Chicago, 234 Ill. 2d 446, 472 (2009). ¶ 18 Here, the parties agree that Cox is disabled from performing full-unrestricted duties as a

police officer because of his right shoulder limitations. They further agree that the incident of

October 17, 2017, at Riverside Hospital was an “act of duty.” However, the parties disagree as to

whether the disability may be causally related to the incident of October 17, 2017. Our review is

narrow. We must determine whether there is sufficient evidence of record to support the Board’s

determination that Cox failed to prove a causal relationship between the incident and his disability. ¶ 19 The Board primarily found that the record lacked credible evidence that Cox’s disability

was related to the October 19, 2017, incident. It stated that Cox’s testimony was confusing and

conflicting. The Board found it significant that Cox stated that the pain in his right shoulder was

experienced immediately after the incident in question, but there was no record of any report of

the injury or medical treatment until March 26, 2018, five months after the incident. Also, the

police “Field Report” of the suspect’s arrest, which was filed on the day of the incident and

provided a detailed description, did not include any mention of Cox’s alleged injury. The Board

emphasized the fact that the incident took place in a hospital, but Cox did not report his injury to

the hospital staff at that time. The Board also found it important that the “Employee Injury Report

and Supervisor’s Initial Investigation Report,” which gave written notice of Cox’s shoulder injury

for the first time, was not filed until April 9, 2018, almost six months after the incident. Although

Cox testified that he notified Skelly of his injury the day it occurred, the Board found it significant

that Skelly unequivocally denied the same. Also of importance was the timing of when Cox sought

medical treatment. Specifically, Cox first medical treatment for his right shoulder injury three days

after he sought medical treatment for a non-work related knee injury. ¶ 20 The Board concluded that the medical opinions as to causation relied on Cox’s self-serving

history and, therefore, gave less weigh to them, explaining, the record clearly established

otherwise. We note Dr. Karlsson’s conflicting opinions as to causation. He offered two different

opinions without an explanation as to the change. Dr. Karlsson did not testify, and we find his

opinion concerning causation had little importance. Based on the totality of the evidence,

considering the medical opinions speculative, rather than conclusive on the issue of causation, was

not unreasonable. *8 ¶ 21 Based on the record, we cannot say that the Board’s decision was unreasonable, arbitrary,

or not based on any of the evidence. We find the Board’s determination well-reasoned and based

on sufficient evidence of record. Cox, as the claimant, had the burden of proof to establish a causal

connection between the incident and his disability, which he failed to do. Thus, the Board’s

conclusion that Cox failed to prove he was disabled in the line-of-duty and, as such, only entitled

to a not-on-duty disability pension was not against the manifest weight of the evidence. ¶ 22 III. CONCLUSION ¶ 23 For these reasons, the judgment of the circuit court of Kankakee County is affirmed. ¶ 24 Affirmed.