Illinois Appellate Court Reverses Termination of Firefighter’s Disability Pension

An Illinois appellate court has reversed a decision by the Board of Trustees of the Evanston Firefighters’ Pension Fund that terminated a firefighter’s line-of-duty disability pension, concluding the Board’s finding that the firefighter had recovered from her disability was against the manifest weight of the evidence. 

Jasmine Sandora, a firefighter with the Evanston Fire Department, injured her left hand on March 8, 2020, while responding to a structure fire. Prior to that incident, she had no history of injury or problems with her left hand. She underwent surgery in October 2020 and a second surgery in April 2021. A functional capacity evaluation (FCE) performed in October 2021 found that, despite maximum effort, Sandora could not perform all essential functions of her job and had permanent restrictions. Although she reached maximum medical improvement, she remained unable to return to unrestricted duty.

Sandora performed light-duty office work for several months, but the department advised her that it could not offer a permanent light-duty position. Three physicians selected by the pension board—including Sandora’s treating physician—examined her pursuant to the Illinois Pension Code and all concluded she was permanently disabled from service as a firefighter due to the March 2020 injury. Following a hearing in December 2021, the Board granted Sandora a line-of-duty disability pension.

In early 2023, the Board became aware of two videos posted on Sandora’s social media accounts. Based on those videos, the Board required Sandora to undergo an independent medical examination (IME) with Dr. Michael Vender. In his April 2023 report, Dr. Vender noted that Sandora still reported wrist pain but stated that X-rays showed the surgery had “satisfactorily healed.” While acknowledging some limitation in wrist motion, he opined it should not cause a functional deficit. He criticized the prior FCE as having “a significant amount of subjectivity” and stated that its findings showed “more than one would expect from this type of injury.”

Dr. Vender also reviewed two videos: one showing weightlifting and another showing a person swinging from a rope off a cliff into water. He opined that the activities depicted were inconsistent with the limitations identified in the FCE. During his deposition, Dr. Vender repeatedly referenced the videos, stating they demonstrated activities “far beyond activities of the daily living.” He also testified that he did not know how much weight firefighters typically lift or carry, nor did he know the weight involved in the barbell video.

Sandora responded with a medical record review from her treating physician, Dr. Mark Cohen. Dr. Cohen explained Sandora’s surgical history and persistent wrist pain, particularly with twisting or load-bearing activities. After reviewing the weightlifting video—which was only eight seconds long and showed Sandora holding a barbell with her wrists in a neutral position—Dr. Cohen concluded the video did not suggest she could return to full, unrestricted firefighting duties. He stated that such a conclusion was not supported by “any anatomic or scientific basis” and reaffirmed that the FCE remained valid.

Sandora’s attorney also objected to the introduction of the video allegedly depicting Sandora swinging from a rope, making an offer of proof that the video did not depict Sandora at all, but rather her wife.

The Board concluded there was “satisfactory proof” that Sandora had recovered from her disability and terminated her pension benefits, citing the weightlifting video and Sandora’s lack of recent medical treatment. Sandora sought an administrative review of that decision by the circuit court, who reversed the Board’s decision. The Pension Board filed an appeal to the Appellate Court of Illinois, First District, Fourth Division.

In upholding the circuit court, the appellate court concluded:

• Here, the Board’s decision to terminate Sandora’s disability pension was against the manifest weight of the evidence because there was no satisfactory proof that she recovered from her disability, as required by the Code.
• The Board stated in its order that Dr. Vender’s IME was “credible and thorough” and that his testimony at his deposition was “credible and consistent with the opinions he expressed in his written report.”
• While the Board considered Sandora’s treating physician’s medical record review, it gave “more weight to the opinions expressed by Dr. Vender than those expressed by Dr. Cohen in his report,” because Dr. Cohen “did not perform a physical exam of Sandora, had not treated her since surgery and mostly recited the history of his past medical treatment of her.”
• While the Board relied heavily on Dr. Vender’s opinions to find that Sandora recovered from a disability, Dr. Vender never made such findings.
• On the contrary, Dr. Vender stated in his report that Sandora’s descriptions from the December 2021 duty disability hearing, of her difficulties performing routine activities, were “more than one would expect from this type of injury and subsequent surgery.”
• He stated that Sandora’s abilities to perform the activities shown in the two videos he watched were not consistent with the FCE results, or her testimony about her difficulties during the December 2021 hearing.
• During his deposition, Dr. Vender testified that the results of the FCE were not consistent with the “forceful” activities he saw in the two videos of Sandora lifting weights and swinging from a rope.
• He stated that an FCE was “useless” and “often misleading” because it can underestimate or overestimate a person’s capabilities. When asked why he believed the FCE was useless, he stated, “[w]ell look at this patient: weightlifting, jumping from a cliff.”
• He further stated that he would not give much weight to the findings of an FCE in making a determination as to whether somebody could return to work. When asked how much a firefighter could carry, or how much weight a firefighter is expected to lift, Dr. Vender stated that he did not know.
• Dr. Vender concluded that Sandora was “not disabled” and that the initial determination by the Board that Sandora was disabled was not right. When asked if he would disagree with the findings of the Board, and reject the FCE in its entirety, Dr. Vender replied, “Yes.”
• Because Dr. Vender never opined that Sandora recovered from a disability, and instead simply found she was not disabled and that he would not have found her to be disabled in 2021, we find that Board’s conclusion that Sandora had recovered from her disability was against the manifest weight of the evidence.
• Vender’s report and testimony never asserted that Sandora had recovered from her disability, and therefore the Boad’s decision to terminate Sandora’s disability pension benefits, based primarily on Dr. Vender’s IME and testimony, was against the manifest weight of the evidence.
• We find this to be true, especially in light of the treating physician’s testimony that Sandora remained physically unable to meet the full duties of a firefighter.
• We also find troubling Dr. Vender’s reliance on the rope-swinging video in reaching his conclusion that Sandora was no longer disabled, when in fact it did not depict Sandora.
• Dr. Vender noted in his report that the activities performed in the social media videos were forceful activities using the wrist, and the ability to perform the activities “was not consistent with the report of the [FCE].”
• During his discovery deposition, Dr. Vender stated that videos “point[] to how useless the FCEs are, that there [were] so many limitations in that FCE that are not consistent with that first video, let alone the second video.”
• When asked why the FCE was useless, he stated, “well look at this patient: weightlifting, jumping off a cliff.”
• When asked about Sandora’s pain, and whether he thought she was lying, Dr. Vender again referenced weightlifting and jumping off a cliff, stating, “[t]hat’s far beyond activities of the daily living.”
• Dr. Vender’s IME and deposition testimony, in which he concluded that Sandora was not disabled, were both made under the impression that Sandora was depicted in the rope-swinging video.
• Dr. Cohen, on the other hand, Sandora’s treating physician and one of the Board-selected physicians who examined her as part of the initial finding of a disability by the Board in 2021, reviewed the weightlifting video and not the rope-swinging video.
• His opinion regarding her continued disability did not change after reviewing the weightlifting video, and Dr. Vender agreed with Dr. Cohen’s opinion that the neutral position exhibited in the weightlifting video would not be the most difficult position for someone with the type of wrist injury Sandora complained of.
• Accordingly, Dr. Cohen’s opinion was not at all influenced by the rope-swinging video, whereas Dr. Vender mentioned it several times in his report and deposition testimony.
• Accordingly, we find that the Board erred in assigning greater weight to Dr. Vender’s opinion than Dr. Cohen’s opinion where Dr. Vender’s opinion was based on an erroneous video, the belief that the FCE, which formed the basis of Sandora’s original finding of disability, was “useless,” and where he disagreed with the Board’s original finding of a disability.
• While the Board’s decision may have been supported by some evidence, which if undisputed would sustain the administrative finding, after considering all the evidence, we find that the decision is against the manifest weight.

The circuit court’s judgment was affirmed, and the Board’s decision was reversed.