2023 IL App (1st) 211432-U No. 1-21-1432 Order filed May 1, 2023. First Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ MARIAN VALKOV, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 20 CH 2602 ) CITY OF NORTHLAKE POLICE ) PENSION FUND and THE BOARD OF ) TRUSTEES OF THE NORTHLAKE ) POLICE PENSION FUND, ) ) Defendants, ) ) The Honorable (City of Northlake and The Board of Trustees of the ) Alison C. Conlon, Northlake Police Pension Fund, Defendant-Appellees). ) Judge Presiding.

PRESIDING JUSTICE LAVIN delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment. ORDER ¶1 Held: We affirm the circuit court’s judgments that (1) confirmed the final administrative decision of the pension fund board that plaintiff was not disabled when it was not against the manifest weight of the evidence, and (2) denied plaintiff’s motion to No. 1-21-1432 supplement the administrative record or, in the alternative, to remand the cause to the administrative body for consideration of additional evidence. ¶2 Plaintiff Marian Valkov appeals from a judgment of the circuit court of Cook County, which confirmed the final administrative decision of the Board of Trustees of the Northlake Police Pension Fund (Board), finding that he was not disabled and denying him a disability pension. On appeal, he contends that the Board erred when it credited the opinion of the one doctor who opined he was not disabled although “all” other opinions found him disabled. He further contends that the circuit court erred by denying his motion to supplement the administrative record, or in the alternative, to remand the cause to the Board after the “discovery” that approximately 150 pages of his physical therapy records were omitted from the administrative record. We affirm. ¶3 The following facts are gleaned from the administrative record, which contains plaintiff’s medical and physical therapy records, his pension application, and transcripts from the Board’s hearings on January 24, September 19, and December 11, 2019. ¶4 Plaintiff was hired as an officer by the Northlake Police Department in 2007, and was later assigned to the detective division. On the morning of July 14, 2017, plaintiff was involved in a vehicle accident and taken to a hospital. Emergency department records state that plaintiff was a “restrained driver” in a moderate speed front-end motor vehicle accident in which the airbag did not deploy. Although plaintiff did not suffer a head injury or lose consciousness, he had “mild persistent mid thoracic back pain.” Later that day, after being released from the hospital, he was examined by Dr. Kathryn Mencel. ^[1] Dr. Mencel diagnosed injuries to the neck and right shoulder, referred plaintiff for physical therapy, and excused him from work until July 24, 2017.

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¶5 On July 17, 2017, plaintiff underwent an initial evaluation at Athletico Physical Therapy

(Athletico). The evaluation stated that plaintiff had impaired neck and shoulder motion, strength limitations, and high pain, and recommended physical therapy three times a week for six weeks.

¶6 Dr. Mencel referred plaintiff to Dr. Ryon Hennessy. At an office visit on October 16, 2017, Dr. Hennessy noted that if physical therapy failed, plaintiff might require a two-level cervical fusion. During an office visit on January 29, 2018, Dr. Hennessy noted that plaintiff exhibited

“mild” improvement with physical therapy, but had difficulty rotating his head to the left.

¶7 Plaintiff was also examined by Dr. Harel Deutsch. In a March 9, 2018, letter, Dr. Deutsch stated that plaintiff reported neck pain and tingling in both legs. The cervical examination indicated neck rotation to 50 degrees in either direction with “some guarding” and no tenderness to light palpitation in the neck and upper back. Dr. Deutsch opined that plaintiff’s physical therapy regime was not appropriate, as he showed no improvement. Rather, plaintiff was a candidate for an anterior cervical discectomy and fusion, and could return to “light” duty after six weeks and full duty after six months. If plaintiff did not have surgery, he was at maximum medical improvement

(MMI), would not benefit from further physical therapy, and could work without restrictions.

¶8 On May 11, 2018, plaintiff met with Dr. Ashraf Darwish, who examined him and recommended a C5-6 and C6-7 anterior cervical diskectomy and fusion.

¶9 On May 14, 2018, plaintiff filed an application for disability benefits with the Northlake

Police Pension Fund, stating that he had a cervical spine injury and seeking both line-of-duty and not-on-duty disability pensions.

¶ 10 On June 11, 2018, plaintiff underwent fusion surgery at C5-6 and C6-7, performed by Dr.

Hennessy and Dr. Darwish.

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¶ 11 On July 12, 2018, Dr. Hennessy noted that the pain in plaintiff’s left shoulder had resolved, and he was not taking pain medication. On August 17, 2018, plaintiff had some neck stiffness but

no numbness, tingling, or weakness; motion in the cervical spine was 60 degrees to the right and left, with “almost full” extension. At an office visit on October 19, 2018, plaintiff denied

numbness, tingling, or weakness in the upper extremities and had no pain when sitting straight, but felt pain if he turned to the left and expressed that he was not ready to resume contact with

suspects. Dr. Hennessy recommended one month of physical therapy followed by one month of work conditioning, and opined if the fusion were solid and plaintiff’s symptoms continued to improve, he “might likely return *** to full duty without restrictions.”

¶ 12 A July 18, 2018, Athletico evaluation revealed “severe” limitation in cervical mobility, and that plaintiff complained of midline cervical pain with any head movement or tensing of shoulders.

On August 28, 2018, plaintiff reported that his neck felt much better, and on September 4, 2018, he reported he felt “better every day.” On October 2, 2018, plaintiff reported that he had more overall mobility, but that sudden movements still caused discomfort.

¶ 13 On November 23, 2018, plaintiff underwent a functional capacity evaluation (FCE) at

Athletico, which concluded that he met 11 of 21 job demands (52.38%) for a police officer. A second FCE on December 5, 2018, concluded that he met 19 of 21 job demands (90.48%). On

December 19, 2018, plaintiff underwent a third FCE, which concluded that he met 20 of 21 of job demands (95.24%) and recommended discharge. The report concluded that plaintiff could perform lifting and carrying tasks, tolerated prolonged standing and walking, and had no limitations with reaching, bending, squatting, crawling, and kneeling. Plaintiff had made “good progress,” but exhibited “guarded cervical rotation during exercises and functional tasks.” His ability to drive in 211435

No. 1-21-1432 emergency situations was limited due to his range of motion and back pain, and he voiced concerns about returning to emergency situations where rapid motion of the c-spine was required. ^[2]

¶ 14 On December 21, 2018, Dr. Hennessy reviewed the FCE and a CT scan of plaintiff’s cervical spine, and opined that the “fusions were solid at both levels,” alignment and cervical lordosis were also proper, and there was no sharp kyphosis or lordosis. However, the decreased motion in plaintiff’s neck made him “vulnerable” when wrestling with suspects and caused him difficulty using firearms. Dr. Hennessy concluded that plaintiff had reached MMI and released him to work with “permanent restrictions” as stated in the December 19, 2018, FCE report, which included “office/desk work only, no lifting greater than twenty-five pounds, [and] no prisoner/suspect contact.”

¶ 15 On August 28, 2018, the City of Northlake (City) filed a petition to intervene in the pension hearing process to contest plaintiff’s eligibility for a line-of-duty pension. Following arguments on January 24, 2019, the Board granted the City’s petition.

¶ 16 On March 4, 2019, plaintiff met Dr. Julie Wehner for an independent medical examination

(IME). Plaintiff related that turning to the right or left rated at 7 or 8 on a 10-point pain scale, and that he could lift 35 to 40 pounds, had difficulty running, and did not take pain medication. During a clinical examination, plaintiff’s neck flexion was normal and although side rotation to the left

and right was 30 degrees, he turned his body. After meeting with plaintiff and examining the medical and physical therapy records provided, Dr. Wehner noted that although plaintiff

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complained of pain while moving his head and had “limitations with driving due to deficits in turning his neck,” he had been able to complete 98% of his job duties after work conditioning.

¶ 17 Dr. Wehner concluded that plaintiff was disabled from performing the full and unrestricted duties of a police officer. Dr. Wehner acknowledged, however, that the only precluding condition was his inability to drive in an “unrestricted fashion.” She noted that plaintiff was only nine-months postoperative and would continue to improve for up to a year. Although plaintiff reported that his pain escalated with high activity, this was not documented in the work conditioning program as he fulfilled almost all of the job duties. Dr. Wehner opined that plaintiff was “exceptionally close” to obtaining full release and with self-motivated exercise and physical therapy, his range of motion

“should improve over the next several months and allow him to return to *** full duty.”

¶ 18 On March 13, 2019, plaintiff met with Dr. Babak Lami, a board-certified orthopedic spinal surgeon, for a second IME. Dr. Lami spent 15 to 20 minutes interviewing and physically examining plaintiff and 50 minutes examining his medical records. Dr. Lami did not ask plaintiff to “perform any maneuvers during the examination which may cause him pain or discomfort.” Plaintiff related that although surgery helped, he developed stiffness postoperatively and was unable to move his neck. A physical examination revealed limited flexion and extension of the neck with 20 degrees of rotation to the left and 10 degrees of rotation to the right. After reviewing plaintiff’s medical records, Dr. Lami noted that plaintiff underwent an “unremarkable” and “uncomplicated” two- level spinal fusion, that a postoperative CAT scan did not show any complications, and that Dr.

Hennessy stated that the fusion was “solidly healed.” Dr. Lami opined that plaintiff could return to work at “full” and “unrestricted” duty.

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¶ 19 On April 1, 2019, plaintiff met with Dr. Wellington Hsu for the third IME. During the meeting, plaintiff stated that while his symptoms improved and he took no medication, he had

“some” decreased range of motion and mild pain in his neck. Dr. Hsu noted 80 degrees of left and right lateral rotation, 40 degrees of flexion, 10 degrees of extension, 30 degrees of left rotation, and 60 degrees of right lateral rotation. Dr. Hus diagnosed plaintiff with (1) cervical disc herniation status post C5-C7 anterior cervical discectomy and fusion, and (2) cervical spondylosis. Dr. Hsu

concurred with Dr. Hennessy’s conclusion that plaintiff could likely perform most of the duties of a police officer, with no lifting over 25 pounds and occasional overhead lifting. However, there were “extreme situations” which would require a full range of motion of the cervical spine. Dr.

Hsu therefore concluded that plaintiff suffered from a disabling cervical spine injury which led to a two-level cervical fusion and a decreased range of motion in the cervical spine.

¶ 20 On August 2, 2019, the evidence deposition of Dr. Lami was held. Dr. Lami testified that he conducted four or five pension disability evaluations a year, and charged $1200 for document

review, an examination, and a report. He also maintained an orthopedic practice, concentrated in spinal surgery, and had performed the two-level cervical fusion plaintiff underwent hundreds of times. He did not have “much use” for an FCE, but would order one if requested. Dr. Lami characterized the FCE as not a “validated test” because it is a subjective report of pain and ability by the examinee; thus, the FCE was a “guide” that Dr. Lami took with “a grain of salt.”

¶ 21 As long as a patient was healed, Dr. Lami never recommended not to return to work; however, where a patient says he “can’t do it,” Dr. Lami will respond, “okay, don’t do it.” From an objective standpoint, based on a MRI or x-ray. Dr. Lami might nonetheless opine that “there’s no other reason than what they say” for why a patient cannot work. In this case, where plaintiff

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No. 1-21-1432 had “a two-level spinal fusion which is healed without complication, there is no reason that he should not be able to do it, lift more than 50 pounds. Other than him saying I can not do it.”

¶ 22 Dr. Lami opined that with a two-level fusion, plaintiff should be able to flex, extend, and rotate past 45 degrees, but that he demonstrated “quite a bit less” during the exam. Dr. Lami had

plaintiff complete a pain disability questionnaire, but did not ask follow-up questions because the questions and answers were “very clear.” He told plaintiff not to perform any maneuvers which caused pain or discomfort and did not physically manipulate plaintiff in any way because plaintiff was not his patient and to avoid an accusation of reinjury. His examination of plaintiff showed no weakness or paralysis of lower extremities and plaintiff did not show pain when Dr. Lami gently touched his back. Plaintiff rated his pain as 5 on a 10-point scale, indicated that his symptoms related to his neck, and stated that he could no longer work as a police officer.

¶ 23 Dr. Lami opined that plaintiff could return to “full duty” and was not disabled “from the cervical spine.” Dr. Hennessy considered releasing plaintiff to work without restrictions and the CAT scan showed that the two-level spinal fusion healed. Additionally, records did not show a neurological deficit and showed the elimination of radicular symptoms which were “significant objective findings.” Dr. Lami believed with a reasonable degree of medical certainty that plaintiff could drive a squad car at a high speed, subdue combative suspects, and fire a rifle in a prone position. He opined that plaintiff could return to work fully and without restrictions.

¶ 24 Dr. Lami stated that “truthfulness” about a patient’s complaints regarding symptoms and limitations was for “the judge, jury and board members to decide,” and that he based his opinion

on “objective medical evidence.” Objective data came from the neurological examination, diagnostics, and the surgical report, but asking a patient to move his neck relied on subjective

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No. 1-21-1432 cooperation. Dr. Lami did not know whether plaintiff was exaggerating his symptoms, but stated that the type of surgery that plaintiff underwent was “one of the most successful *** a spine surgeon performs” and that 80% of patients do “well to extremely well.”

¶ 25 On September 19, 2019, the Board held its second hearing.

¶ 26 Plaintiff testified that he was appointed as an officer to the Northlake Police Department in March 2007, and designated a detective in February 2014. On July 14, 2017, plaintiff, who was then assigned to the day shift, planned an “unannounced stop” at H.D. Supply in order to speak to a manager and collect video evidence of an employee theft as part of an ongoing investigation.

Plaintiff also planned to stop at Midwest Recycling to speak with employees about locking the gates and activating cameras. This was not part of an ongoing investigation, but a reminder to prevent theft. Although detectives were not assigned to crime prevention activity, plaintiff explained that a self-motivated detective performed such tasks. He also had an 8:30 a.m. appointment with the general manager of the AmeriFreight (A.F.) Truck Center regarding employee theft, and a 9:15 or 9:30 a.m. meeting with a sheriff regarding medication destruction.

¶ 27 Around 8 a.m., plaintiff spoke with Detective Phil Gaske, who asked plaintiff to pick Gaske up after Gaske dropped his personal vehicle off for an oil change. This was a routine courtesy, but had to be authorized. Plaintiff agreed, but told Gaske to obtain authorization. Gaske told plaintiff

that he obtained permission from Sergeant Juan Duarte, who had also asked Commander Barras, and that Barras gave permission. ^[3] At the hearing, plaintiff clarified that Gaske told plaintiff that

Gaske obtained permission when Gaske picked plaintiff up from the emergency room after the accident. Plaintiff did not confirm with a supervisor whether he had permission to pick up Gaske.

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¶ 28 Plaintiff told Gaske to call plaintiff’s cell phone when Gaske was ready to be picked up.

He acknowledged that officers leaving Northlake in a police vehicle were to notify dispatch and that the dealership where he was to pick up Gaske was located outside of the city, but he did not advise dispatch prior to the accident. Around 8:05 a.m., plaintiff left the station to begin his planned

“follow-ups.” As plaintiff drove, he monitored the radio and looked for anything out of place or unusual that happened overnight, his “normal morning routine.” If plaintiff were waved down by a citizen or observed criminal activity, he would have stopped.

¶ 29 At 8:17 a.m., plaintiff was on Grand Avenue approaching the intersection with Pearl

Avenue when a vehicle turned in front of his vehicle and struck it. Plaintiff exited his vehicle and reported the accident over the radio. He was in shock, dazed, and had neck pain, like a “toothache” in the spine. He was taken to an emergency room, underwent x-rays, and was prescribed medication. Plaintiff visited his family doctor the same day, and she recommended medication and physical therapy.

¶ 30 During the next two to three months, plaintiff could not turn his head and “jerking”

movements caused a “lot of pain.” He underwent an MRI to the cervical spine on October 4, 2017, and was referred to Dr. Hennessy, an orthopedic specialist. Dr. Hennessy diagnosed disc herniations, prescribed medication, and referred plaintiff to a pain specialist for injections. Plaintiff received four shots to the neck, which provided temporary relief. However, he had pain when he moved his head. On July 11, 2018, plaintiff underwent surgery. He then continued physical therapy and participated in a work conditioning program at Athletico, but was still in pain and had difficulty turning his head.

- 10 - No. 1-21-1432 ¶ 31 On December 19, 2018, plaintiff underwent a FCE and wore a 20-pound vest while he crawled, walked, and simulated wrestling with suspects. Plaintiff was not able to bend his neck or wrestle with his full strength as the vest put pressure on his neck. The FCE report released him to work with a 50-pound lift restriction and limited his ability to drive in emergency situations due to loss of motion in the cervical spine. Dr. Hennessy reviewed the FCE report, and, on December 21, 2018, released plaintiff to work with a 25-pound lift restriction and no prisoner or suspect contact. Plaintiff emailed these restrictions to the chief of police, but never received a response. ¶ 32 Prior to the work release, plaintiff submitted a disability pension application to the Board. During the evaluations, Drs. Wehner and Hsu each spent approximately 30 minutes with him. Dr. Lami spent 10 minutes with plaintiff and did not manipulate his head or neck, but asked plaintiff to turn to each side slowly. Dr. Lami did not ask about plaintiff’s responses on a pain questionnaire. ¶ 33 Currently, plaintiff noticed a decreased range of motion in the neck, as he could no longer look over his shoulder. He had a “dull” pain in his spine when he strained his neck, and walking “distances” led to tightness around the neck and shoulders. While he could lift to the waist, lifting overhead caused pain. He had not attempted to exercise with weights outside of physical therapy and had not shot a firearm. Plaintiff did not take medication or wear a neck brace; rather, he occasionally iced his neck and refrained from movements that caused pain. On September 4 or 5, 2019, plaintiff began a security job at a high school. He walked the hallways and monitored students, but did not intervene in any incidents. Plaintiff did not feel he could control suspects, qualify with a firearm, respond to emergencies, clear intersections, or look for other squad cars because he could not see “if anyone is coming from the sides.” - 11 - No. 1-21-1432 ¶ 34 During cross-examination, plaintiff testified that he was not present when Gaske asked permission for plaintiff to pick him up. Plaintiff drove around town almost every day, but did not “engage in any specific law enforcement activity” while driving on the morning of the accident. In his application for disability benefits, plaintiff stated that the accident occurred when he was “patrolling for unusual activities.” He was not pursuing any suspects, but was “keeping [his] eyes open for anything unusual,” and stated that driving around looking for unusual activity was part of a police officer’s duties. He believed this was also the job description for a detective. Plaintiff had seen the job description for a police officer, which included patrolling the city and checking doors and windows. He acknowledged that those specific duties were not listed in the “police detective” job description. Sergeant Duarte, plaintiff’s supervisor, did not instruct him to patrol for unusual activities. He was unsure who took over his investigations after the accident, and did not speak to Duarte about reassignments. ¶ 35 During redirect, plaintiff testified that when he first entered the detectives’ division, the commander told him that detectives were self-motivated, self-driven, and worked at their own pace. As long as work was completed, they did not need special supervision or direction. ¶ 36 Gaske testified that on July 14, 2017, he asked Duarte if he could take his personal vehicle for an oil change, and if plaintiff could then pick him up. Duarte approved. Once Gaske told plaintiff that Duarte gave permission, plaintiff said he would meet Gaske at the dealership on Grand. The drive to the dealership was about 10 minutes. As Gaske drove, he heard about plaintiff’s accident on the radio and returned to the station. - 12 - No. 1-21-1432 ¶ 37 During cross-examination, Gaske testified that plaintiff indicated his willingness to pick Gaske up, as long as Gaske obtained permission from a supervisor. Gaske did not see which direction plaintiff drove upon leaving the station. ¶ 38 Gaske did not routinely patrol the streets; rather, he worked at his desk on matters he was assigned. Normally, he did not initiate investigations, but he if saw something, he would not ignore it. He was assigned to the truck stop employee theft case in January 2018, and did not remember being told that plaintiff previously spoke to A.F. Truck Center manager Hristo Hristov about the investigation. Gaske’s caseload was never low enough that he voluntarily went on patrol. ¶ 39 Hristov testified that he managed A.F. Truck Center in Northlake. In 2017, Hristov spoke with plaintiff about an employee theft, and arranged a meeting, but plaintiff did not appear because of the accident. Hristov then worked with Gaske. He knew plaintiff because they were both Bulgarian, and plaintiff was a “little hero” for the community. ¶ 40 Northlake police department investigations commander Juan Duarte testified that in July 2017, he was the detective sergeant. On the morning of July 14, 2017, he met with plaintiff and Gaske at the beginning of the day shift. Gaske asked to take his vehicle for an oil change, and for plaintiff to pick him up. Duarte approved. He did not know which direction plaintiff drove and did not ask his superiors for permission for plaintiff to pick up Gaske. ¶ 41 Plaintiff did not state that he would be performing “job-related” duties or making stops for ongoing investigations on the way to the dealership. It was not normal for detectives under Duarte’s supervision to drive around looking for unusual activities; rather, their main function was to follow up on reports taken by patrol officers. Duarte never assigned plaintiff to patrol for unusual activities. There were policies to “mitigate issues” like a detective initiating an investigation and a - 13 - No. 1-21-1432 detective was required to notify supervisors of any actions. Duarte did not think that the truck stop case was assigned to plaintiff. When a detective left the building, Duarte was informed where he or she was going. Detectives were required to notify dispatch when they left city boundaries. ¶ 42 Photographs taken at the accident scene were entered into evidence and are included in the record on appeal. They show a sedan with damage to the side.^[4] ¶ 43 In rebuttal, plaintiff testified that Duarte was not present when Gaske asked plaintiff to take Gaske to the dealership, and denied speaking to Duarte that morning. He denied that detectives had to notify a supervisor when leaving the station. Plaintiff was never disciplined for initiating an investigation; rather, he was applauded for it. He did not take the same route as Gaske to the dealership because it was the longer route. On the day of the accident, he did not know when Gaske left or what direction Gaske went. ¶ 44 On December 11, 2019, the Board heard closing arguments. Plaintiff’s counsel asserted sufficient evidence supported the conclusion that plaintiff was disabled due to an injury that required his retirement from “performing” police service, noting the permanent work restrictions that Dr. Hennessy recommended on December 21, 2018, based upon the FCE results. Additionally, Dr. Wehner and Dr. Hsu found plaintiff disabled. The evidence also supported the conclusion that plaintiff was injured from “the performance of an act of duty,” as he was acting as a police officer at the time of the accident. The City responded that plaintiff was traveling to a dealership to pick up Gaske rather than acting as a police officer. Additionally, Duarte, plaintiff’s supervisor, denied that plaintiff stated he planned to perform job-related duties on the way. Turning to plaintiff’s