Former Carpenter Denied Second Wage Differential

Daniel Cody tried the case of Marcellus Pinto v. Janecyk Construction on the issue of causal connection, maintenance and a demand for vocational rehabilitation. The demand to settle before the trial exceeded $800,000 based on an alleged wage differential or odd lot permanent total for a very young man.

The case involved an admitted finger laceration requiring surgery to repair nerve and tendon damage. During the light duty, the petitioner alleged he developed radial tunnel syndrome due to repetitive trauma. We showed that he did not seek treatment for over two months after his last day of work when he was scheduled to see Dr. Fernandez already for his finger injury. Dr. Fernandez placed the petitioner on restrictions as a result of the radial tunnel syndrome and later in his deposition stated he could not distinguish what part of the restrictions was for the finger injury and what part was for the alleged arm injury. He also admitted that the petitioner refused injections or surgery that would help over 85% of the patients of Dr. Fernandez. During cross examination we were able to tie Dr. Fernandez down to a specific history which we then later showed was not accurate based on either the petitioner's testimony or the co-workers who were brought in to testify to the job assignments.

We retained Dr. John Stogin for a Section 12 examination. During his deposition, Dr. Stogin testified that based solely on the pain complaints of the petitioner, the petitioner may have had radial tunnel syndrome but there were no objective findings to support the subjective complaints. Further, even if the petitioner did have radial tunnel syndrome it was not related to work. We were able to provide Dr. Stogin with an accurate description of what the petitioner did during the 5 days of light duty over a two week period and Dr. Stogin felt this could not have caused the alleged symptoms. Radial tunnel syndrome can be caused by repetitive trauma but it would involve much more repetition than that which the petitioner engaged.

The petitioner had claimed 46 5/7 weeks of maintenance at $974.35 for a total of $45,515 plus ongoing maintenance and vocational rehabilitation and made a demand based on a wage differential. We were able to show the petitioner had received a wage differential settlement based on his inability to be a carpenter just 9 months before he began working for our client. Further, we presented testimony that the petitioner failed to mention any restrictions when he took the job through the Union Hall as a carpenter with our client thereby questioning his credibility.

The arbitrator found that the petitioner did sustain a finger injury but had reached maximum medical improvement by the time he reported the arm symptoms. The arbitrator further found more persuasive the opinions of Dr. Stogin that the arm symptoms could not have been caused by the work and that Dr. Fernandez did not have a reliable history upon which to base his opinions.