No. 1-20-0833

FIRST DIVISION March 7, 2022

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 JUDICIAL DISTRICT ____________________________________________________________________________

BRIAN C. WARNER, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 19 CH 03954 ) THE RETIREMENT BOARD OF THE ) POLICEMEN’S ANNUITY AND BENEFIT ) The Honorable FUND OF THE CITY OF CHICAGO, ) Caroline K. Moreland, ) Judge Presiding. Defendant-Appellant. ____________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court. Justices Walker and Coghlan concur in the judgment.

ORDER

¶1 Held: The decision of the Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago that plaintiff, a former police officer, was not entitled to line-of-duty disability benefits, was clearly erroneous.

¶2 In this administrative review action, Defendant Retirement Board of the Policeman’s Annuity

and Benefit Fund of the City of Chicago (“the Board”) appeals the circuit court order reversing the

Board’s decision to deny the continuation of a line-of-duty disability pension by plaintiff Brian

Warner, and instead, award him an ordinary disability pension. For the following reasons, we agree 1-20-0833

that the Board’s decision that plaintiff ceased to be disabled from PTSD but continued to be

disabled from his anger and animosity towards the CPD, was not manifestly erroneous. Further,

we agree that the Board’s finding that plaintiff was entitled to an ordinary pension and not a line-

of-duty pension was clearly erroneous. Thus, we affirm the judgment of the circuit court of Cook

County.

¶3 BACKGROUND

¶4 The following facts have been adduced from the testimony presented at the administrative

review hearing and accompanying exhibits: Plaintiff, Brian Warner, was a police officer employed

by the Chicago Police Department beginning in 1994. Plaintiff subsequently filed an application

for a line-of-duty disability pension because of an act of duty incident that occurred on February

23, 2011. On that date, plaintiff was shot and wounded while transporting an arrestee, after which,

he returned fire and killed the arrestee. On June 27, 2013, the Board found that, while in the

performance of an act of duty incident, plaintiff sustained an injury, which was diagnosed as Post-

Traumatic Stress Disorder (“PTSD”) and awarded him a line-of-duty disability pension. A line-

of-duty disability pension entitles a police officer a disability pension “equal to 75% of his salary,

as salary is defined in this Article…” 40 ILCS 5/5-154 (West 2001). Alternatively, an ordinary

disability pension entitles a police officer to 50% of his or her salary. 40 ILCS 5/5-155 (West

2016). Plaintiff continued to receive a line-of-duty pension from 2013 until 2018.

¶5 In 2018, as provided in section 5-156 of the Illinois Pension Code, the Board initiated its annual

review of plaintiff’s disability benefit and requested that plaintiff be examined by one or more

physicians appointed by the Board. 40 ILCS 5/5-156 (West 1998) (“…A disabled policeman who

receives a duty, occupational disease, or ordinary disability benefit shall be examined at least once

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a year by one or more physicians appointed by the board. When the disability ceases, the board

shall discontinue payment of the benefit, and the policeman shall be returned to active service.”)

¶6 Beginning in September of 2018, the Board conducted the status review hearing to determine

if plaintiff remained disabled and unable to return to CPD service, and, if disabled, the cause

thereof, to determine whether plaintiff should continue to receive line-of-duty disability or should

receive an ordinary disability. At the conclusion of the administrative hearing, the Board

determined that plaintiff was no longer disabled from PTSD, the condition for which the Board

initially granted him a line-of-duty disability benefit, but remained disabled and “currently unable

to return to service with the CPD because of his deep-seeded and continuing anger with the CPD

as to the manner in which they handle situations involving mental disabilities suffered by police

officers[.]” Therefore, the Board determined that plaintiff should receive an ordinary disability

pension and no longer receive a line-of-duty disability pension.

¶7 Plaintiff sought administrative review with the circuit court. The circuit court reversed the

Board’s decision to discontinue line-of-duty pension benefits and to award plaintiff ordinary

disability pension benefits. Specifically, the circuit court upheld the Board’s determination that

plaintiff’s disability for PTSD had ceased, and that plaintiff continued to be disabled because of

the anger he felt towards the CPD. The circuit court, however, further found that the Board’s

decision to reduce his pension from a line-of-duty disability pension to an ordinary disability

pension was clearly erroneous where there was evidence showing that his disability was causally

related to the prior act of duty injury. The circuit court ordered that plaintiff’s line-of-duty

disability pension should be reinstated retroactively to February 28, 2018.

¶8 The Board maintains that its decision should be upheld where there was evidence that

plaintiff’s disability for PTSD had ceased, that plaintiff continued to be disabled because of the

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anger he felt towards the CPD, and that his current disability is not causally related to the act-of-

duty incident, resulting in the awarding of an ordinary disability pension and not a line-of-duty

disability pension. Plaintiff argues that the Board erred in finding that he had ceased to be disabled

from PTSD. Plaintiff also argues that the Board erred in finding that his current disability was not

causally related to the act-of-duty shooting incident.

¶9 At the administrative review hearing, the parties presented the testimony of plaintiff, Doctor

Nancy Landre, and Doctor Stevan Hobfall1. The parties also provided plaintiff’s medical records

relating to the treatment he received, including medical reports of Doctor Landre, Doctor Hobfall,

and Doctor Robin Kroll.

¶ 10 Brian Warner

¶ 11 Plaintiff testified that he began working as a Chicago police officer on October 3, 1994. On

June 27, 2013, the Pension Board awarded him a line-of-duty disability benefit of 75% and at the

time of the hearing, he was still receiving that benefit. At the time of the hearing, he worked as a

driver with the Teamsters; assigned to various movie and television production sets. He does not

carry a gun for his job, but he has a Firearm Owner’s Identification (“FOID”) card and owns a

gun. He volunteers and is chairperson for the Chicago Survivors Group, a group dedicated to

obtaining resources for police officers who go through traumatic experiences. He has spoken about

this group on television, including various television talk shows. He has spoken about the impact

that shootings have on a police officer, the lack of available resources for these officers, and he

advocates for more resources.

¶ 12 Plaintiff was asked if there was anything that would prevent him from going back to work with

the CPD in a job doing clerical work. Plaintiff testified that this type of job is not available with

1 Hopfoll’s first name is misspelled at various times in the record as Steven and Stephen. -4- 1-20-0833

the CPD for those returning from disability. After he researched this topic and found that some

police departments allow for such a light-duty return from disability, he previously asked the CPD

to make such a position available for him, but his request was rejected.

¶ 13 Plaintiff testified, “What prevents me from going back to work? It’s because I don’t know how

I’m going to act, overreact or under-react if I’m put in a stressful situation. As a police officer, if

you had the ability to bring me back and [retrain] me, how am I going to react? I don’t know.” He

also testified that he does not believe that he can fire a gun. He explained that the last time that he

fired a gun was approximately eight months after the shooting when he and his partner went to a

shooting range to meet state qualifications. Plaintiff panicked when his partner fired a weapon,

and plaintiff fired a shot that hit the wall.

¶ 14 At the hearing, plaintiff was asked to explain the medical treatment he received. He testified

that he had seen several doctors since he was injured. He saw Doctor Tudor one time on April 24,

2013. He saw Doctor Robin Kroll three to four times over a six-month period, including February

28, 2013. He was also treated by Doctor Stevan Hobfoll. The first time that he saw Doctor Hobfoll

was seven to eight months after he was injured, and before he was granted line-of-duty disability.

At one point, he was being treated by both Doctor Hobfoll and by Doctor Kroll, but he was told

that he would have to choose between these two doctors as their treatment services overlapped. He

chose to continue treatment with Doctor Kroll. When Doctor Kroll was subsequently removed

from the approved provider list, he was treated by Doctor Hobfoll. Plaintiff testified that, since the

incident, the longest he has gone without seeing a therapist is a month.

¶ 15 Doctor Nancy Landre

¶ 16 Doctor Nancy Landre testified that she is an independent medical expert hired by the Board to

evaluate plaintiff relating to his duty disability. She never treated plaintiff. She previously

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examined him on November 3, 2016, and again on January 24, 2018. The examinations consisted

of a review of medical records, administering a series of psychological tests, and interviews with

plaintiff. She issued written reports on both occasions relating to her evaluations. In her written

report from 2016, her evaluation revealed findings of “PTSD, in Partial Remission” as well as a

possible Alcohol Use Disorder. In her 2016 report, she stated that “[Plaintiff] no longer meets full

criteria for PTSD, but is experiencing some residual symptoms of the disorder.” She opined that

plaintiff was incapable of resuming duty at that time “[b]ecause of his emotional volatility and

intense anger towards the Department…[,]” but that he might be capable of doing so in the future

with proper treatment.” She also opined that the disabling injury was related to the previous

incident.

¶ 17 On January 24, 2018, she evaluated plaintiff for a second time. In her written report, she stated

that plaintiff continued to work full time as a Teamster and had become engaged to his fiancé. At

the time of the interview, plaintiff was asked to explain any current complaints, and he stated that

he was “happy-go-lucky” and only becomes distressed when he is contacted by the police

department. He further told her: “Every time I see on TV or read in the paper that an officer was

involved in a shooting, I can relate to what that officer is going through.” According to her written

report, her testing revealed findings of “PTSD, in remission.” She opined that “the officer does not

currently meet criteria for PTSD and/or any other psychological disorder.” The officer, “does,

however, continue to experience extreme, highly specific anger that cause him some degree of

intermittent distress, and that would likely interfere with his ability to function effectively as a

police officer.”

¶ 18 In her written report, she further opined that plaintiff was incapable of resuming duty where

“[t]he officer’s failure to resume duty as a police officer appears largely due to the fact that he is

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intensely angry with the department and unwilling to return until they make changes which, he

maintains, they are well aware of.” She recommended treatment for his specific anger-

management issues, however, she found that, even with treatment, she “[did] not foresee the

Officer ever resuming work with the CPD, secondary to his intense animosity toward the

department.” She determined that plaintiff was unable to return to work “in any capacity.”

Regarding whether the disabling injury is causally related to his prior injury, she opined that his

disability “does not appear causally related to the claim, but rather, to the fact that he remains

intensely angry with the department for not providing requested support.”

¶ 19 At the hearing, Doctor Landre testified that plaintiff was not currently experiencing symptoms

of PTSD at a level that would satisfy the criteria of PTSD. During her interview with plaintiff in

January of 2018, plaintiff indicated that “his only distress was related to having to…deal with the

[pension board] hearings [and] at the prospect of being forced to return to work as a police officer.”

Plaintiff told her that he was otherwise living a normal life without psychological difficulty. She

explained that plaintiff told her that he does not want to go back to work with the police department

because “he’s mad at them” but he would go back to work if the department put in place protections

for him. She found that “if he wanted to, he could get the treatment and go back to work, but I

don’t believe he wants to go back to work with the police department.”

¶ 20 Doctor Landre was asked a series of questions relating to whether plaintiff’s current disabling

condition is causally related to the act-of-duty shooting incident from February 23, 2011:

“Q. Okay. And also you opined that - - you agree with [plaintiff’s] request for support is

for the incident that he was involved in in ’11 for the shooting, correct?

A. Correct.

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Q. And you also agree that the 2011 incident was the initial trigger of [plaintiff’s] need for

support and the initial trigger for his PTSD symptoms that he suffered in the past.

A. I feel like that was one of many. I feel there were a lot other incidents that contributed,

but that was probably the final straw.

Q. And the other incidents, as you will say in your report, are police-related incidents,

such as when he had to take dead bodies out of a house?

A. Correct.

Q. All of the incidents are police related, so wouldn’t it be fair to say that but for the

incident that he had at the police department, he wouldn’t need treatment for PTSD?

A. Correct.

Q. And, therefore, if he wouldn’t need treatment for PTSD, he wouldn’t be angry at the

City because there is nothing to be angry about because he didn’t need the treatment?

A. Correct.

Q. Therefore, as we sit here today, the anger which he has that prevents him from working,

as you say in your opinion, is directly related to the PTSD or the triggering events of 2011

and the other incidents, correct?

A. Correct.”

¶ 21 Doctor Stevan Hobfoll

¶ 22 Doctor Stevan Hobfoll testified that he was currently the principal at Star Stress, Anxiety and

Resilience Consultants, and was previously a professor and chairperson at Rush University

Medical College. He initially treated plaintiff in 2012 and 2013, and then again in 2018. The record

includes Doctor Hobfoll’s medical records for the therapy sessions with plaintiff. Starting on May

10, 2012, plaintiff met with Doctor Hobfoll approximately three to four times per month, until

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March 22, 2013. The records also show that plaintiff met with Doctor Hobfoll again in April

through September of 2018. The medical records from 2018 also include Doctor Hobfoll’s notes

on plaintiff’s treatment progress.

¶ 23 Doctor Hobfoll’s “Treatment progress” notes from the April 25, 2018 visit, state:

“[Plaintiff] returned with an increase in symptoms following the shooting death of

a close colleague, and the threat of having to return to police work. I suggested [his]

return for treatment, but he may not as he may only be looking for my testimony

on his behalf. He was clearly distraught, admitted to drinking to self-medicate and

was highly upset over relationship problems that occurred with his anger and

upset.”

¶ 24 The progress notes from the subsequent visits in May, June, and July of 2018 show that Doctor

Hobfoll found that plaintiff was working on his anger issues, feeling less anger, drinking less, and

had improved his relationship with his children and his fiancé. In his September 3, 2018 report, he

wrote: “No current posttraumatic stress disorder.”

¶ 25 The record also includes a letter by Doctor Hobfoll, dated June 20, 2018, written in response

to a request by plaintiff’s counsel to review the psychological examination of plaintiff conducted

by Doctor Landre in January of 2018. In that letter, Doctor Hobfoll drew “very different

conclusions” than Doctor Landre. The first conclusion was that, around the time of Doctor

Landre’s testing, plaintiff had experienced the murder of a close friend and mentor who was a

commander in the Chicago Police Department.” As a result, plaintiff started to drink heavily and

virtually destroyed his relationship with his fiancé. In Doctor Hobfoll’s opinion, these behaviors

are indicators of PTSD symptomatology and “common in persons with former PTSD who are

confronted with major reminder traumas…” Secondly, Doctor Hobfoll concluded that plaintiff did

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not have an “anger disorder.” While finding that plaintiff “has certainly been angry with the CPD,[]

this is a common reaction of officers who are having to deal with the bureaucratic system and

where they feel they have not been treated well.”

¶ 26 Doctor Hobfoll’s third conclusion was:

“Third, I believe the main reason [plaintiff] cannot return to police work…is

that when confronted with events related to violence, shootings, and death,

[plaintiff] experiences a return to an extremely distraught state during which he

meets criteria for PTSD. Further, when imagining being in a situation that requires

the use of a weapon, [plaintiff] becomes anxious and filled with self-doubt about

his ability to protect his partner or the public. For this reason, and owing to his fear

of how he may react when under such pressure, [plaintiff] is fearful that he will

over- or under-react to a situation where he must draw and possibly use his

weapon…”

¶ 27 He concluded that plaintiff is unable to return to police duty based upon his “former PTSD, his

PTSD-evoked symptoms when confronted with this past incident concerning the murder of a

fellow police officer and mentor, and his distraught response when thinking about having to be in

a situation in which he had to draw and possibly use his weapon…” He also concluded that this

disability is a “direct result of the PTSD he suffered following being shot in the line of duty as a

Chicago Police Officer.”

¶ 28 At the hearing, Doctor Hobfoll testified that he agreed with Doctor Landre’s determination that

plaintiff no longer met the criteria for PTSD. He also testified that he disagreed with Doctor

Landre’s determination that plaintiff had an “anger disorder.” He found that while plaintiff gets

angry at times, he has worked with plaintiff about his anger, and the doctor had never seen an

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officer, under these circumstances, who is not angry with the Chicago Police Department. He also

testified that plaintiff’s anger symptoms are one of the symptoms of PTSD and related to his PTSD.

While Doctor Landre concluded that plaintiff had “PTSD, in remission,” Doctor Hobfoll testified

that he would use different language. Instead, he concluded that plaintiff is “at high risk for

entering back into PTSD if he was, again, exposed to situations of threat and harm.” He determined

that plaintiff would be at risk to lapse into PTSD if he was involved in a shooting event, if he had

to draw a weapon in a tense situation, or he was a witness to such an event. When asked if plaintiff

is disabled, Doctor Hobfoll testified:

“I don’t think he’s disabled in a - - if this was not for handling a weapon, no, I

don’t think [plaintiff] is disabled.

I think he’s able to work, live a good life and do as well as, you know, the

average guy or gal.

For the level of being able to sign for a weapon, I believe he is disabled given

that criteria.”

¶ 29 Doctor Hobfoll’s opined that plaintiff “represents a danger to himself and others to be in a

position of having a weapon and having the police powers that are subsequent to having that

weapon as a police officer.” His concern is that plaintiff would not only be hesitant and second-

guess himself in a situation in which he would have to draw his weapon, but it would be highly

likely that such an experience would lead to PTSD.

¶ 30 Doctor Hobfoll suggested that plaintiff should be brought back into duty as a police officer on

a gradual basis “probably begin by going back to the academy, getting back on the shooting range,

then going back to a desk-type job, then going in a car with a veteran officer who has a very good

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record who’s trusted with them until he was then ready for full service.” He has been told that the

Chicago Police Department does not have such a program.

¶ 31 The record includes documents showing plaintiff’s treatment dates with Doctor Robin Kroll.

The record includes Doctor Kroll’s medical progress reports and other notations for Warner’s

treatment from July of 2012 to May of 2013. In 2013, Doctor Kroll also wrote letters to the Pension

Board, to the CPD, and to the Independent Police Review Authority (“IPRA”) outlining the

treatment and her diagnosis. In a letter dated November 18, 2015, to the Pension Board, Doctor

Kroll wrote that plaintiff had been attending PTSD police group therapy since April 10, 2012, and

individual stress management training since January 2013. In a letter dated December 5, 2018, to

the Pension Board, Doctor Kroll listed 52 dates of service, including 26 individual sessions and 26

PTSD/critical incident group therapy sessions. The letter listed 11 dates in 2012, 28 dates in 2013,

3 dates in 2014, 7 dates in 2015, and 2 dates in 2016, and 1 date in 2018.

¶ 32 The Board’s Decision

¶ 33 Following the conclusion of the testimony, the Board issued its written decision. 2 Specifically,

the Board found:

(1) Plaintiff was not a credible witness based upon his “misleading and evasive

testimony with regard to the medical treatment…” he received since his injury.

(2) Doctor Hobfoll was not a credible witness based upon his testimony regarding

the lapse of time in his visits with plaintiff and his written report in which he

“seemingly questioned [plaintiff]’s motive in returning to him after the five (5)

year absence.”

2 The report is dated February 28, 2018, however, that date is incorrect as the administrative hearing was held after this date, the Board’s orally announced its decision on January 31, 2019, and the certificate of mailing for the report is dated March 1, 2019. -12- 1-20-0833

(3) Doctor Hobfoll’s testimony was confusing where he attempted to “downplay

the reporting of Dr. Landre while agreeing with her assessment that [plaintiff]

no longer suffered from PTSD” and where he testified that plaintiff’s PTSD

could be easily triggered if he was confronted with violent acts, but also “found

nothing wrong with [plaintiff] frequently speaking about traumatic shooting

events involving police officers on TV and talk shows.”

(4) Doctor Landre’s testimony was not disputed by Doctor Hobfoll and both

doctors found that Warner no longer suffered from PTSD for which the Board

originally awarded him a duty disability benefit. Both doctors acknowledged

that plaintiff’s inability to return to work “was related to his long-standing and

continued anger at the CPD.”

(5) “[Plaintiff], while no longer disabled by way of PTSD, the condition for which

the Board initially granted [plaintiff] a 75% duty disability benefit, remains

disabled and is currently unable to return to service with the CPD because of

his deep-seeded and continuing anger with the CPD as to the manner in which

they handle situations involving mental disabilities suffered by police officers.

[Plaintiff] is therefore entitled to a disability benefit.”

(6) Plaintiff’s anger and animosity towards the CPD as to how the department has

treated its employees “is a condition not uncommon in the workplace and is a

situation common to all citizens in the ordinary walks of life, and does not

entitle [plaintiff] to a duty disability benefit as defined in the Act.”

¶ 34 The Board terminated plaintiff’s duty disability benefits effective January 31, 2019 and granted

him an ordinary disability benefit.

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¶ 35 The Circuit Court’s Decision

¶ 36 Plaintiff sought administrative review with the circuit court. Plaintiff argued that the Board’s

decision was not supported by the record, and the Board misinterpreted section 5-154 of the Code,

as to what constitutes a line-of-duty disability. 40 ILCS 5/5-154 (West 2001). On July 7, 2020, the

circuit court reviewed the Board’s factual findings relating to the gaps in treatment, that plaintiff

is no longer suffering from PTSD, and that plaintiff is disabled due to his anger and animosity

towards the CPD. The circuit court found that these factual findings were not against the manifest

weight of the evidence.

¶ 37 Specifically, as to the factual findings relating to the gaps in treatment, the circuit court looked

at the testimony of plaintiff, Doctor Hobfoll and Doctor Kroll, as well as the attached documentary

evidence, relating to the frequency of his treatments. The circuit court found that “the Court cannot

conclude that the Board’s findings that there are gaps in [plaintiff’s] treatment is against the

manifest weight of the evidence.

¶ 38 As to the Board’s factual finding that plaintiff no longer suffered from PTSD, the circuit court

found that this factual finding was not against the manifest weight of the evidence. The court found

that both Doctor Hobfoll and Doctor Landre testified that plaintiff did not currently suffer from

PTSD.

¶ 39 As to the Board’s factual finding that plaintiff was disabled due to “his deep-seeded and

continuing anger with the CPD[,]” the circuit court looked at Doctor Landre’s testimony that

plaintiff “was not living with any symptoms of PTSD and that ‘if he would deal with his anger

issues towards the [CPD], he would be capable of going back to work.’” Although the circuit court

recognized that Doctor Hobfoll testified that the tests given by Doctor Landre “were incapable of

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diagnosing an anger disorder, there is some evidence supporting the Board’s finding and the Court

cannot second guess the Board.”

¶ 40 The circuit court found that it would not overturn the Board’s determination that the testimony

of plaintiff and Doctor Hobfoll were not credible. The circuit court, however, further found that

the Board’s decision to reduce his pension from a line-of-duty disability pension to an ordinary

disability pension was clearly erroneous “because Dr. Landre (the only physician who testified)

testified that [plaintiff] had an anger issue and linked that anger issue directly to the February 23,

2011 incident.” The circuit court relied on that portion of Doctor Landre’s testimony in which he

agreed with counsel’s position that “the anger which he has that prevents him from working, as

you say in your opinion, is directly related to the PTSD or the triggering events of 2011 and the

other incidents…” The circuit court determined that plaintiff’s line-of-duty pension should be

reinstated retroactively to February 28, 2018.

¶ 41 On July 24, 2020, the Board filed a timely notice of appeal from the circuit court order.

Accordingly, we have jurisdiction.

¶ 42 ANALYSIS

¶ 43 The Pension Code provides that judicial review of pension board decisions is governed under

the terms of the Administrative Review Law. 40 ILCS 5/3-101 et seq. (West 2012); 40 ILCS 5/3-

148 (West 2012). In administrative cases, the appellate court reviews the decision of the Board,

not the decision of the circuit court. Marconi v. Chicago Heights Police Pension Board,

(2006). “[T]he board of trustees of a police pension fund is the entity statutorily

empowered to verify an applicant’s disability and right to receive benefits. [Citation]” Wade v.

City of North Chicago Police Pension Board,

(2007).

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¶ 44 In Administrative Review Law, we may not consider new or additional evidence beyond what

was originally presented to the Board, and the “findings and conclusions of the administrative

agency on questions of fact shall be held to be prima facie true and correct.” 735 ILCS 5/3-110

(West 1994). It is within the Board’s province to accord weight to the evidence, resolve conflicts

presented by the evidence, and determine the credibility of witnesses. Prawdzik v. Board of

Trustees of Homer Township Fire Protection District Pension Fund,

, ¶

36. Accordingly, we defer to the Board on questions of fact unless its findings are against the

manifest weight of the evidence, meaning that the opposite conclusion is clearly evident. Wade,

, citing Marconi,

(2006); Jones v. Board of Trustees of the Police

Pension Board,

(4th Dist. 2008). At the same time, our deference to the

Board is not without limit. Ashmore v. Board of Trustees of Bloomington Police Pension Fund,

. There must be competent evidence in the record to support the

Board’s decision. Miller v. Board of Trustees of Oak Lawn Police Pension Fund,

. If the record contains evidence that supports the Board’s factual conclusions,

then we shall not disrupt those conclusions, even if an opposite conclusion is reasonable. Robbins

v. Board of Trustees of the Carbondale Police Pension Fund,

(1997).

¶ 45 Where there is a mixed question of law and fact, we defer unless the Board’s ruling is clearly

erroneous. AFM Messenger Service, Inc. v. Department of Employment Security,

(2001) (citing City of Belvidere v. Illinois State Labor Relations Board,

(1998)); Wade,

(citing Marconi,

). This is a less deferential

standard than the manifest weight of the evidence standard, yet still “significantly deferential”: we

will find the Board’s decision “clearly erroneous” only where we are ‘“left with the definite and

firm conviction that a mistake has been committed.’” AFM Messenger Service, Inc., 198 Ill.2d at

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395 (quoting United States v. United States Gypsum Co.,

(1984)). Regardless

of the standard of review, plaintiff bears the burden of proof and will be denied relief if she fails

to meet that burden. Wade,

(citing Marconi,

).

¶ 46 Disability

¶ 47 As a threshold issue, the Board was tasked with determining whether plaintiff continued to be

disabled. The Board found that plaintiff’s disability for PTSD had ceased. The Board also found,

however, that plaintiff continued to be disabled because of anger relating to “his deep-seeded and

continuing anger with the CPD[.]” Because these determinations amounted to a factual finding,

this Court will review them under the manifestly erroneous standard. See Hoffman v. Oland

Firefighter’s Pension Bd.,

(manifest weight of the evidence

standard applied to factual question of whether the Board’s termination decision, grounded on a

doctor’s testimony that the plaintiff was never disabled, was proper)

¶ 48 We agree with the circuit court’s determination that these factual findings were not against the

manifest weight of the evidence. The Board found that both Doctor Landre and Doctor Hopfoll

testified that plaintiff did not currently suffer from PTSD. In Doctor Landre’s written report, she

determined that her testing revealed findings of “PTSD, in remission” and further opined that

plaintiff “does not currently meet criteria for PTSD…” At the hearing, she testified that plaintiff

was not currently experiencing PTSD at a level that would satisfy the criteria of PTSD. Doctor

Landre also testified that “by his own report, he was not experiencing those symptoms at a level

that would satisfy the criteria for PTSD.” While Doctor Hobfoll’s opinion differed as to how to

describe plaintiff’s condition, he agreed that plaintiff did not meet the criteria of PTSD. Thus, this

Court finds that the Board’s conclusion that plaintiff’s disability for PTSD had ceased was not

against the manifest weight of the evidence.

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¶ 49 The Board also found that plaintiff continued to be disabled because of his anger issues. The

Board’s decision is supported by the written report and testimony of Doctor Landre. In her written

report, the doctor stated that plaintiff was unable to return to work where “[t]he officer’s failure to

resume duty as a police officer appears largely due to the fact that he is intensely angry with the

department and unwilling to return until they make changes which, he maintain, they are well

aware of.” She also testified that “his anger towards the Department - - that seemed to be the main

barrier to his return to work.” Doctor Hobfoll’s testimony slightly differed in that he acknowledged

that plaintiff was angry, but he did not conclude that plaintiff’s anger prevented him from returning

to work. Instead, he found that plaintiff’s inability to return to work was related to the lingering

effects of his prior PTSD diagnosis and his concern that, when confronted with events relating to

violence, shootings, and death, plaintiff “experiences a return to an extremely distraught state

during which he meets criteria for PTSD.”

¶ 50 It was within the purview of the Board to credit the testimony of Doctor Landre more than that

of Doctor Hobfoll. We must defer to the Board’s assessment of the testimony and the credibility

of the witnesses. Trettenero v. Police Pension Fund of City of Aurora,

(2nd Dist. 2002) (“Although we agree that an individual’s own medical provider can have a unique

insight into his or her patient’s condition, we must defer to the Board’s assessment of the testimony

and the credibility of the witnesses.”) When faced with a conflict of evidence, “it was the Board’s

function, as the finder of fact, to assess the credibility of the documentary information and the

testimony of the witnesses and to determine the appropriate weight to be given the evidence.”

Marconi v. Chicago Heights Police Pension Bd.,

(2006). “So long as the record

contains evidence supporting the agency’s decision, that decision should be affirmed.” Marconi,

(citing Commonwealth Edison Company v. Property Tax Appeal Board, 102 Ill.2d

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443, 467 (1984)). The mere fact that an opposite conclusion is reasonable or that the reviewing

court might have ruled differently will not justify reversal of the administrative findings.

; Abrahamson v. Ill. Dept. of Professional Regulation,

(1992); Robbins v.

Board of Trustees of the Carbondale Police Pension Fund,

(1997).

¶ 51 Plaintiff argues that the Board erred when it “relied almost exclusively on the report and

testimony of Doctor Nancy Landre… [and] its own lay opinion that [plaintiff] was no longer

disabled because of [his] purported gaps in treatment dates.” The record, however, shows that the

Board relied on the findings of both Doctor Landre and Doctor Hobfoll regarding their conclusion

that plaintiff no longer fit the criteria for PTSD. Moreover, the Board did not rely upon the gaps

in treatment dates to support its conclusion that plaintiff’s disability for PTSD had ceased. Instead,

the Board looked at that evidence to support its determination that it found both plaintiff and

Doctor Hobfoll to not be credible witnesses.

¶ 52 Contrary to plaintiff’s argument, the Board’s reference to the gaps in treatment did not amount

to a “lay opinion[.]” In referencing the testimony as to whether there existed a gap of several years

in which plaintiff did not seek medical treatment, the Board made a factual finding; not a lay

opinion. In fact, the circuit court found that the Board’s determination as to the existence of a gap

in treatment was a factual finding that was not against the manifest weight of the evidence.

¶ 53 We also find that the Board’s factual finding that there existed a gap in treatment dates was not

against the manifest weight of the evidence. Plaintiff testified that he had been treated by Doctor

Hobfoll, Doctor Kroll, and Doctor Tudor. While plaintiff testified that the longest time he had

gone without seeing a therapist was a month, the records submitted to the Board did not support

his claim. Starting on May 10, 2012, plaintiff met with Doctor Hobfoll approximately three to four

times per month until March 22, 2013. Plaintiff met with Doctor Hobfoll again in 2018, from April

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through September of 2018. In a letter to the Board, dated December 5, 2018, Doctor Kroll listed

52 dates of service, including 26 individual sessions and 26 PTSD/critical incident group therapy

sessions. The letter listed eleven dates in 2012, 28 dates in 2013, three dates in 2014, seven dates

in 2015, two dates in 2016, and one date in 2018. Plaintiff also testified that he was treated by

Doctor Tudor one time on April 24, 2013. Thus, the record shows that for three years, from 2014

to 2106, plaintiff received treatment on twelve occasions; far short of plaintiff’s representation that

he had been treated only a monthly basis.

¶ 54 Plaintiff also seeks for this Court to find that his participation in the Employee Assistance

Program and Chicago Police Survivors Group were part of his “treatment.” There was no evidence

presented as to when and how often plaintiff participated in either of these programs. Also, there

was no evidence presented to show that his participation amounted to “treatment” for his disability.

Therefore, plaintiff’s participation in either of these programs does not support his attack on the

Board’s factual finding that there were gaps in plaintiff’s treatment.

¶ 55 For the forementioned reasons, we find that the Board’s decision that plaintiff ceased to be

disabled from PTSD but continued to be disabled from his anger and animosity towards the CPD,

was not manifestly erroneous.

¶ 56 Line-of-duty Disability

¶ 57 The Board argues that the circuit court erred when it reversed the Board’s decision that plaintiff

was entitled to ordinary disability and not a line-of-duty disability. The Board contends that

plaintiff was not entitled to a line-of-duty disability pension where his disability was a result of

anger and stress issues resulting from the way he was treated by the CPD, and this anger was not

causally related to an act of duty. Relying upon the testimony of Doctor Landre as to causation,

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plaintiff argues that he sustained his burden of proof in showing that he was entitled to a line-of-

duty disability pension where his disability was causally related to the act of duty shooting incident.

¶ 58 “‘Whether the facts, as found by the Board, satisfy the standard for awarding a line of duty

disability pension’ is a mixed question of law and fact subject to the clearly erroneous standard of

review.” Prawdzik v. Board of Trustees of Home Township Fire Protection District Pension Fund,

, ¶ 38 (quoting Hammond v. Firefighters Pension Fund of City of

Naperville,

(2nd Dist. 2006)); Rose v. Board of Trustees of Mount

Prospect Police Pension Fund,

. Thus, we should affirm the

Board’s decision “unless we are left with definite and firm conviction that a mistake has been

committed.” Prawdzik,

(citing Hammond,

);

Carillo,

; Rose,

.

¶ 59 The Code provides different pension benefits depending upon the circumstances of a police

officer’s incurred disability. It is well-established that a police officer does not qualify for a line-

of-duty disability pension merely because the officer was injured while on duty. “Only an injury

that was incurred in the performance of an act of duty could entitle [the plaintiff] to ‘duty’

disability…” Summers v. Retirement Bd. Of Policemen’s Annuity and Ben. Fund of City of

Chicago,

; 40 ILCS 5/5-154 (West 2010). “Act of duty” is

statutorily defined as:

“Any act of police duty inherently involving special risk, not ordinarily assumed

by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of

this State or by the ordinances of police regulations of the city in which this Article

is in effect or by a special assignment; or any act of heroism performed in the city

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having for its direct purpose the saving of the life or property of a person other than

the policeman.” 40 ILCS 5/5-154 (West 2010).

¶ 60 To receive a line-of-duty disability, a claimant must prove that the duty-related accident “‘is a

causative factor contributing to the claimant’s disability.’” Rose v. Board of Trustees of Mount

Prospect Police Pension Fund,

, quoting Luchesi v. Retirement

Board of the Firemen’s Annuity & Benefit Fund,

(1st Dist. 2002).

However, “[n]othing in the Illinois Pension Code….requires an act of duty to be the sole cause of

an officer’s disability…” Village of Franklin Park v. Sardo and the Board of Trustees of the

Franklin Park Police Pension Fund,

, ¶ 2. Moreover, a claimant is not

required to prove that a duty-related incident is even the primary cause of his disability. Rose v.

Board of Trustees of Mount Prospect Police Pension Fund,

. If the

plaintiff became disabled as the result of any cause other than an injury incurred in the performance

of an act of duty, the plaintiff would be entitled to “ordinary” disability. 40 ILCS 5/5-155 (West

2010).

¶ 61 In cases involving claims of duty-related stress, the officer must prove disability resulting from

“‘a specific, identifiable act of duty unique to police work.’” Village of Franklin Park,

, ¶40, quoting Robbins v. Board of Trustees of the Carbondale Police Pension

Fund of the City of Carbondale, Illinois,

(1997). Therefore, “a line-of-duty

pension is not allowed for disability resulting from “‘generalized police stress of multiple

origins.’” Id. at 40; citing Robbins,

.

¶ 62 The Board originally granted plaintiff a line-of-duty pension because of the act of duty incident

involving the shooting in which plaintiff was shot and wounded while transporting an arrestee,

after which, he returned fire and killed the arrestee. Plaintiff continued to receive a line-of-duty

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pension until 2018, at which time, the Board commenced its annual review of plaintiff’s disability

benefit and requested that plaintiff be examined by one or more physicians appointed by the Board.

40 ILCS 5/5-156 (West 1998). The Board, however, after finding that plaintiff’s disability for

PTSD had ceased and plaintiff was disabled because of his anger with the CPD, also found that

plaintiff’s disability for anger towards his employer was not a line-of-duty disability as it is “a

condition not uncommon in the workplace and is a situation common to all citizens in the ordinary

walks of life…”

¶ 63 We find that the Board’s conclusion that plaintiff’s disability was not causally related to an

“act of duty” to be clearly erroneous. Upon review of the evidence, we are left with the definite

and firm conviction that a mistake has been committed.

¶ 64 Doctor Landre stated in his written report:

“The officer’s disability does not appear causally related to the claim, but rather, to

the fact that he remains intensely angry with the department for not providing

requested support. There is, however, no evidence that the disabling injury

exacerbated a prior medical condition, prior injury, or pre-existing dominant

condition.”

¶ 65 However, during his testimony at the hearing, Doctor Landre admitted: (1) the initial trigger

for plaintiff’s need for support was the 2011 incident in which he was shot; (2) if plaintiff did not

need treatment for PTSD, he would not be angry at the CPD for the manner in which he was

treated; and (3) “the anger which he has that prevents him from working…is directly related to the

PTSD or the triggering events of 2011 and the other incidents…” Therefore, Doctor Landre

contradicted her earlier conclusion and admitted during her testimony that plaintiff’s anger is

causally related to shooting incident in 2011.

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¶ 66 Moreover, Doctor Hobfoll’s testimony also supports the conclusion that plaintiff’s anger is

causally related to the act-of-duty shooting incident in 2011. While Doctor Hobfoll found that

plaintiff did not have all the symptoms for PTSD, and plaintiff’s anger symptoms do not reach the

level of a disability, he specifically testified that anger is one of the symptoms or PTSD and his

anger symptoms “are also related to his former PTSD…” He also concluded that the PTSD was

causally related to the shooting incident in 2011. Therefore, Doctor Hobfoll’s testimony supports

the conclusion that plaintiff’s current disability is causally related to the act-of-duty shooting

incident in 2011.

¶ 67 While the source of plaintiff’s anger could be, in part, from his anger because of the way the

CPD treated him following the 2011 shooting incident, the evidence established that plaintiff’s

current disability is causally related to the 2011 shooting incident, which the Board previously

found to constitute an “act of duty” incident. As previously stated, a claimant does not have to

establish that the disability was solely caused or even primarily caused by the act of duty incident.

Viewing the record in its entirety, we must therefore find the Board’s finding that plaintiff was not

entitled to a line-of-duty disability pension was clearly erroneous. This ruling, however, is based

upon a unique set of facts – specifically, that both doctors determined that his anger is causally

related to his prior injury of PTSD – and should not be read to allow for a plaintiff to be awarded

duty disability any time there is lingering anger towards their employee.

¶ 68 As a concluding matter, plaintiff requests attorney fees under section 5-228(b) of the Code (40

ILCS 5/5-228(b) (West 2018)), which provides:

“If any policeman whose application for either a duty disability benefit under

Section 5-154 or for an occupational disease disability benefit under Section 5-

154.1 has been denied by the Retirement Board brings an action for administrative

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review challenging the denial of disability benefits and the policeman prevails in

the action in administrative review, then the prevailing policeman shall be entitled

to recover from the Fund court costs and litigation expenses, including reasonable

attorney’s fees, as part of the costs of the action.”

¶ 69 This appeal does not involve an officer’s application for duty disability benefits under section

5-154. See 40 ILCS 5/5-154 (West 2018). Rather, it involves proceedings initiated by the Board

under section 5-156 to establish continuing proof of disability. See 40 ILCS 5/5-156 (West 2018).

Accordingly, plaintiff’s request for fees is denied.

¶ 70 CONCLUSION

¶ 71 For the foregoing reasons, we find the Board’s determination that plaintiff had ceased to be

disabled from PTSD but continued to be disabled from his anger and animosity towards the CPD,

was not manifestly erroneous. We further find that the Board’s finding that plaintiff was entitled

to an ordinary pension and not a line-of-duty pension was clearly erroneous. Accordingly, we

affirm the circuit court of Cook County’s reversal of the Board’s decision.

¶ 72 Affirmed.

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