On October 3, 2024, Klein, Thorpe, & Jenkins secured a favorable ruling from the Third District Appellate Court of Illinois for the Board of Trustees of the Village of Clarendon Hills Police Pension Board’s (“Board”), affirming its denial of Plaintiff, Aaron Shirley’s, claims for line-of-duty and non-duty disability pensions. In Shirely v. The Board of Trustees of the Village of Clarendon Hills Police Pension Fund, et al., 2024 IL App (3d) 230257-U, Aaron Shirley, a sergeant with the Clarendon Hills Police Department, sought long-term line-of-duty disability pension or, alternatively, non-duty disability pension, due to a shoulder/labrum tear he suffered while on the job after refusing a surgical option with a high likelihood of success of returning him to a full level of functioning in his role with the police department. The Third District reviewed and affirmed the trial court’s decision upholding the Board’s determination, concluding that he was not disabled because he unreasonably refused surgery which could have fixed the injury. While the order was issued under Illinois Supreme Court Rule 23, the ruling provides favorable persuasive authority for both pension boards and municipalities across Illinois.

The Injury

On March 15, 2019, Shirley was working in his capacity as Sergeant with the Clarendon Hills Police Department. While on the job, he assisted paramedics in restraining a minor lying on a cot for emergency medical transport and while doing so he felt a “pop” in his right shoulder and later experienced severe pain and decreased strength in his arm. On March 19, 2019, Shirley was evaluated and assessed with right shoulder and elbow strains, prescribed physical therapy, and referred to an orthopedic specialist. After a month Shirley was discharged from physical therapy after twelve sessions. On April 23, 2019, Shirley was evaluated by an orthopedic specialist and underwent an MRI on his right shoulder, and he was diagnosed with a lesion of his labrum, also known as a SLAP tear.

Possible Courses of Treatment

Following the diagnosis of the torn labrum in his right shoulder, Shirley was given two potential courses of treatment by the orthopedic specialist: a conservative option and a surgical option. For the conservative option, Shirley could undergo additional physical therapy. However, the orthopedic specialist explained that there was no recognized form of conservative treatment that would heal his torn labrum, and that the conservative option would be futile should the symptoms persist after six additional weeks of physical therapy. As for the surgical option, the orthopedic specialist explained that the majority of patients with the same diagnosis were able to return to full functional activities after the procedure, known as a right shoulder arthroscopy with labral repair.

Shirley opted for the conservative course of treatment and underwent twelve additional weeks of physical therapy. Following physical therapy, he was reevaluated by the orthopedic specialist, who concluded that his symptoms had not improved and that further conservative treatment would be futile. The specialist ordered a functional capacity evaluation (FCE) to determine his ability to perform his job and concluded that Shirley was at maximum medical improvement without surgery, but explained that most patients return to full functional activities following surgery. However, Shirley did not pursue the surgical treatment option.

Initial Claims and Board-Selected Physician Evaluations

Shirley filed a worker’s compensation claim and was evaluated by the insurance company’s doctor, Dr. Saltzman. Dr. Saltzman diagnosed him with a labral tear and concluded that surgery would likely resolve most if not all of his shoulder pain and would be beneficial given that Shirley still complained of persistent pain and an inability to do his job despite having undergone physical therapy. Shirley then continued to work for two years under a light-duty restriction at work until April 9, 2021, at which time he stopped working for the Police Department. On April 5, 2021, Shirley applied for line-of-duty disability pension and, alternatively, a non-duty disability pension.

Shirley was evaluated by three Board-selected physicians, Dr. Obermeyer, a board-certified orthopedic surgeon specializing in shoulder surgery, Dr. Williamson-Link, board-certified in occupational medicine, and Dr. Phillips, a board-certified orthopedic surgeon. All three doctors certified Shirley as disabled from full and unrestricted duty and diagnosed him with the labral/SLAP tear. Dr. Obermeyer concluded the tear was causally related to the March 15, 2019 work injury, and that the injury was treatable and would respond favorably to surgical intervention. He also concluded that absent surgery his condition would not change, and that for Shirley surgery had a “very favorable prognosis for symptom improvement and return to full and unrestricted police duties, including heavy lifting.” Dr. Williamson-Link was unable to come to a conclusion to a reasonable degree of medical certainty as to whether the surgery would allow Plaintiff to recover and return to duty. Finally, Dr. Phillips concluded that Shirley was experiencing some “subjective limitation of his ability” based on his observations and that Shirley’s claims of pain constituted “symptom manifestation”. Dr. Phillips ultimately concluded that the results of the proposed surgery are 95% good or excellent and that it is minimally invasive, averting major risks, and that Shirley’s decision not to pursue it raised concerns regarding Shirley’s desire to return to full duty as a police sergeant.

At the hearing, Plaintiff claimed that he refused surgery because he knew people that had undergone the surgery without success, because he was advised by another physician to avoid stressful situations due to a neurological condition, and because of the potential risks of infection, ineffectiveness, and exacerbation of the injury but provided no testimony from a medical professional. The Board issued its Order concluding that Shirley had suffered an injury from an act of duty, that the surgery would allow him to regain full function and involved minimal risks which were substantially outweighed by the overwhelming probability that surgery would resolve his shoulder injury, and that Shirley’s refusal to undergo the surgery was unreasonable. The Board denied both the line-of-duty and non-duty disability pensions based on their conclusion that the disability was not attributable to or the result of his act of duty injury because Shirley’s refusal to undergo the surgical treatment was a superseding cause of his disability.

Shirley’s Petition for Administrative Review and Subsequent Appeal

After the Board’s decision, Shirley filed a complaint with the Circuit Court of DuPage County seeking administrative review, claiming that the evidence of record did not support the Board’s decision. The Circuit Court upheld the Board’s ruling, and the Plaintiff appealed. On appeal, the Court reviewed the Board’s denial of the pension application under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)) as required by the Pension Code. 40 ILCS 5/3-148 (West 2018). The Court concluded that the issues presented were questions of fact, and as such the Board’s decision would only be overturned if Shirley proved that the Board’s denial was against the manifest weight of the evidence.

Board’s Denial of Line-of-Duty Disability Pension

As to the denial of line-of-duty disability pension, the Court addressed two primary questions on appeal: (1) whether the evidence supported the Board’s conclusion that Shirley’s refusal to undergo surgical repair of his shoulder was unreasonable, and (2) whether the Board erred in concluding that Shirley’s refusal to undergo surgery was a superseding cause of his disability.

Police officers are entitled to receive a line-of-duty disability pension if he or she is found to be physically or mentally disabled for service in the police department, “as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty.” 40 ILCS 5/3-114.1(a). However, the Court looked to Mulack v. Hickory Hills Police Pension Bd., which states that the term “disability” as used under the Pension Code, “exclude[s] medical conditions [that] can be remedied without significant danger to life or health or extraordinary suffering and when medical opinion indicates that a prescribed remedy offers a reasonable prospect for relief. Mulack, 252 Ill.App.3d 1063, 1071 (1993). Looking to the evidence of record, the Court pointed to the fact that two doctors concluded that the conservative treatment options were futile in Shirley’s case, and that the evidence indicated there was no other reasonable remedy to Shirley’s injury aside from surgery. The Court also recognized that the testimony of the physicians established that the surgery had a very high probability of success and the risks were minimal, and that this testimony was not contradicted. Finally, the Court recognized the absence of evidence in the record to support Shirley’s claim that he knew of negative results of the recommended surgery. Ultimately, the Court affirmed the Board’s finding that Shirley’s refusal to undergo surgery was unreasonable.

Shirley argued that his decision was reasonable because he had sincere concerns regarding the risks associated with surgery, and he relied on the case Keystone Steel & Wire Co. v. Industrial Commission, 72 Ill.2d 474 (1978). However, the Court distinguished Keystone from Shirley’s case because in that matter the Plaintiff had presented testimony from a neurologist and psychiatrist at the pension hearing establishing that the Plaintiff sincerely feared the surgery; Shirley did not present any testimony from a similarly qualified medical professional to opine on the sincerity or reasonableness of his concerns for the surgery or establishing that he had a neurological condition.

Shirely’s final challenge to the Board’s denial of the line-of-duty disability pension is that it erred in concluding that his refusal to undergo surgery was a superseding cause of his disability. On this issue, the Court cited Luchesi v. Retirement Bd. Of Firemen’s Annuity and Benefit Fund of Chi., 333 Ill.App.3d 543, 555 (2002) for the premise that “[a] refusal to undergo recommended treatment rises to the level of a superseding cause sufficient to warrant the denial of a pension if the treatment would have restored the claimant’s ability to work as a police officer.” Looking to the record, the Court recognized that two physicians testified that the surgery would likely fully restore Shirley’s ability to perform as a police officer and that these conclusions were not contradicted by any other testimony. Based on this, the Court concluded that the Board’s determination that the refusal was a superseding cause was not against the manifest weight of the evidence, and in turn upheld the Board’s denial of Shirely’s application for line-of-duty disability pension.

Board’s Denial of Non-Duty Disability Pension

Under the Pension Code, police officers are also entitled to receive a pension if he or she is found to be disabled for service in the police department due to any cause other than an act of duty. 50 ILCS 5/3-114.2(a). Shirley had applied for this non-duty disability pension as an alternative to his application for line-of-duty disability pension, but the Board denied this application based on his refusal to undergo surgery as well. Shirley argued that this determination went against the plain language of Section 3-114.2(a), asserting that it necessitates an entitlement to non-duty disability pension as long as it was established that he is disabled, regardless of the cause. The Court rejected Shirely’s argument, and relied on a body of case law in concluding that “a compensable disability will not be found if a claimant unreasonably refuses the necessary medical treatment of the disabling injury.” Resting on its conclusion that the Board’s determination that Shirley’s refusal to undergo surgery was a superseding cause of his disability, the Court held that the Board’s denial of non-duty disability pension was not against the manifest weight of the evidence.

Implication for Municipal Pension Boards

The Third Appellate Court ultimately affirmed the Circuit Court of DuPage’s judgment and the Board’s denial of Shirley’s application for both line-of-duty and non-duty disability pension. Shirely provides significant guidance for pension boards and applicants on how the refusal of available treatment options may impact an application for disability pensions. Based on Shirley, it is clear that if an applicant for disability pension refuses treatment that is established to be the only option that could return them to full functioning, has a high probability of success, and presents minimal risks, they will be disqualified. While a fear or concern for possible risks of a treatment option such as surgery may justify a refusal, an applicant must present expert testimony to establish that such a fear is sincere or reasonable. Ultimately, following Shirley, in evaluating the reasonableness of an applicant’s refusal to undergo a specific course of treatment, pension boards must carefully consider the testimony of medical experts as to the likelihood of the potential treatment’s success, the degree to which the treatment will restore the applicant’s level of functioning, the availability of viable alternatives, the degree of risk associated with the treatment, and the sincerity or reasonableness of an applicant’s concern for the risks of the treatment.

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