Francisek Filipkowski v. Tru Vue

The Commission recently affirmed an arbitrator decision finding fully in favor of respondent Tru Vue in a case where the petitioner was alleging he was permanently and totally disabled and requesting benefits at the rate of $1035 per week for the rest of his life with a life expectancy of approximately 25 years. The petitioner alleged that shortly before his lay off he was pushing an object at work causing significant back pain. He admitted not telling anybody at work at the time of the alleged occurrence and through cross-examination we were able to establish that he was aware of the work requirement to do so and showed significant ability for him to have done so if the accident would’ve occurred as alleged. Through witness preparation and testimony during Respondent’s case in chief, we were able to show that the petitioner made no complaints of any back pain prior to his report of an inability to work due to back pain. His initial report to the respondent was actually through his daughter and made no mention of any work incident. It was not until several months later when a therapist requested payment for a bill that there was any notice to the respondent that the petitioner was claiming a work injury. Case law prevented a viable notice defense because the respondent was aware of the injury within 45 days even though there was no report that it was work related.

We were able to convince the arbitrator and the Commission that the petitioner was not injured at work as alleged. We pointed out the failure to report any injury at the time that it occurred as well as the failure to report any injury when he initially began seeing his doctor. The first mention of any work related injury was approximately 30 days after the event when the petitioner reported moving a big boat to his therapist. The petitioner was Polish speaking and he testified that the reference to the boat was a pallet with a forklift. We presented solid evidence from a neurosurgeon that the petitioner had extensive pre-existing problems and refused any reasonable treatment other than a short stent of physical therapy prior to claiming that he was permanently and totally disabled. Injections and surgery were contemplated but the petitioner turned down both. We further were able to uncover evidence that the petitioner stopped medical treatment once he had been approved for Social Security disability despite his complaints of severe pain. We argued that demonstrated the petitioner’s real goal was simply disability. We were able to convince the arbitrator that the petitioner’s later assertion that the underlying condition was somehow aggravated by an incident at work was simply not credible. Instead of awarding what the petitioner was requesting which had a net present value of over $750,000 using a 5% discount factor, the client was not obligated to make any payments for medical, past time off or any permanency based on the successful defense against the accident itself.