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Company appeals workers’ comp benefits, says employee can work


No one could blame a company for contesting total disability payments under workers’ comp if the employee could really go back to work. But there are ramifications for taking a workers’ comp appeal too far.

Daniel Britzke was a commercial truck driver and heavy equipment operator for Zepeda Construction Services in Illinois.

On July 17, 2000 (yep, this case is 13 years-old), Britzke was trying to unload a trailer filled with construction debris. When he propped open the trailer’s tailgate with a crowbar, a large piece of debris weighing over 1,000 pounds came loose. That caused the tailgate to swing open and strike Britzke in his right arm and face.

Then, debris fell out of the trailer and struck his left leg, causing him to fall to the ground.

Britzke’s leg injury was severe. He had extensive surgery on the leg and continued to suffer significant pain. He also suffered from post-traumatic stress disorder (PTSD).

In 2004, an arbitrator found Britzke suffered physical and psychological injuries arising out of and in the course of his employment. The arbitrator also said Britzke was permanently incapable of work due to his multiple physical injuries and PTSD. One of his treating physicians said Britzke was unable to walk long distances and his knee was unstable. One doctor said the knee injury alone would be enough to conclude Britzke was totally disabled. A psychologist also said his PTSD made him unable to work for the foreseeable future.

The arbitrator awarded Britzke workers’ comp benefits consisting of permanent total disability (PTD) payments for life.

In 2005, Britzke was examined by a neuropsychologist at the request of Zepeda. The doctor said Britzke had a “strong tendency for symptom exaggeration.”

Also at the request of the company, Britzke was examined by an orthopedic surgeon. That doctor said Britzke was capable of returning to work at a light-medium level.

Britzke filled out an application to renew his commercial drivers’ license (CDL) in 2005. By signing a document, he certified he was “physically qualified to drive a commercial motor vehicle.”

In 2006, Zepeda filed a petition to suspend Britzke’s PTD benefits, claiming he was able to work. The company cited its doctors’ reports, Britzke’s application to renew his CDL and a speeding ticket he received in 2004. Zepeda said the speeding ticket and CDL renewal application proved Britzke could still work as a commercial truck driver.

The following year, Britzke’s own doctors re-evaluated his condition. Their conclusions: His knee got a little worse and his PTSD didn’t improve despite continued twice-monthly appointments with a psychologist. They concluded he was still permanently disabled.

What’s a reasonable workers’ comp appeal?

The Illinois Workers’ Compensation Commission took up Britzke’s case.

Britzke conceded he had applied to renew his CDL. However, he noted that he would still have to pass a department of transportation physical before he could get back behind the wheel of a commercial vehicle.

In 2007, the Commission concluded Britzke was permanently and totally disabled and awarded him comp benefits. Zepeda took its case to a trial court, which agreed with the commission. Next, the company went to the Appellate Court of Illinois.

Besides deciding whether to uphold the lower courts’ rulings, the appeal panel had one more thing to decide. Britzke filed a motion to have his legal costs covered by Zepeda.

In cases like these, when doctors have already found a worker to be totally disabled, it’s up to the company to prove otherwise. The commission decided which doctors’ opinions to give more weight to, and as a result, ruled Britzke should get comp benefits.

The appeals court said nothing Zepeda presented proved its contention that Britzke could work. It upheld the commission’s award of workers’ comp benefits.

On the matter of Britzke’s attorney’s fees, the appeals court ruled that, after the initial decision by the workers’ comp commission in 2007, Zepeda’s appeals “did not present a real controversy or were frivolous.” Illinois law authorizes the commission to award attorney fees when the employer has been guilty of unreasonable delay, intentional underpayment of benefits or has engaged in frivolous appeals that don’t present a real controversy.

In other words, the court had no problem with wanting Britzke’s medical condition to be reviewed once. But to continue to contest his workers’ comp benefits, the court said the company needed a better proof that he was able to work than what it presented. Zepeda was ordered to pay an additional $9,449 for Britzke’s attorney fees.

What do you think about the court’s opinion? Let us know in the comments below.

(Zepeda Construction Services v. Daniel Britzke, Appellate Court of Illinois, No. 1-12-1324WC, 6/10/13)

For more information on workers’ compensation, see Safety News Alert’s Recommended Safety Links page.

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  1. Why would you apply for another job when you are on permanent disability? he should have his benefits revoked since he feels good enough to work but also attempt to go back to work.

    • Please read the article again – he did not apply for another job – he filled out an application to renew his commercial driver’s license – “BIG DIFFERENCE”! For a CDL, you have to fill out an application, the state runs a background check on you and you then have to pass a physical from an approved doctor. As far as the court – I agree with their ruling and I am not an advocate of shelling out money to employees that are capable to work. However, the employer should have moved him to another type of job that he would have been capable to perform.

  2. Workers comp cases in this country are out of control. He should not be allowed to drive a commercial vehicle if he is permanently disabled, especially if he has PTSD. He could lose it at any moment since some of the symptoms I’ve read about say it changes your personality. He will be driving a large vehicle and could hurt or fill others.

    • He wouldn’t have been given a CDL if he couldn’t pass the medical examination part of the process. My guess is that he was going through the application process so that when he got denied he could show that to the company as the final leave me alone straw.
      The ruling and attorney fees awarde was correct and I believe that companies should be awarded the same monies when employees drag out frivolous lawsuits against them as well

  3. Workcomp says:

    When I see a case like this where he is getting full disablility but then applies for a CDL license so that can get a job drives me nuts. When my father had a stroke that paralized him on his right (dominent) side, took away his ability to speak the Fed government gave him partial disablility because he still had a good hand. This is why employees think that because they are employed they have medical insurance (work comp) and there is a big payout at the end of the rainbow. They should use the same criteria the Feds use when deciding on full disability for life. Oh but the decision they make hits the pocketbooks of the Work Comp Commissioners….

  4. I have never understood why people think they can only do one type of job for the rest of their life. This man was injured and can’t drive a truck; there are millions of jobs that he would be able to do if he was forced to apply himself.

  5. says:

    I’m afraid that I’m on the employer side. Maybe he cannot workas a truck driver, but can he work as a taxi driver? No walking required. Inmy opinion total disibility means the person cannot do ANY job. With a knee injury.. , there are people paralized that still hold a job. He maybe needs retraining..

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