15-12WC. Muris Dzano v. Agri-Mark Inc.

• Court: Vermont

Vermont Workers Compensation 2012. 15-12WC. Muris Dzano v. Agri-Mark Inc Muris Dzano v. Agri-Mark Inc(June 6, 2012)STATE OF VERMONT DEPARTMENT OF LABORMuris Dzano v. Agri-Mark IncOpinion No. 15-12WCBy: Jane Woodruff, Esq. Hearing Officer For: Anne M. Noonan CommissionerState File No. CC-60494OPINION AND ORDERHearing held in Montpelier, Vermont on February 16, 2012 Record closed on March 15, 2012APPEARANCES:Jennifer Pacholek, Esq., for Claimant Keith Kasper, Esq., for DefendantISSUES PRESENTED: 1. Did Claimant suffer a low back injury causally related to his work for Defendant on or about May 3, 2010? 2. If so, to what workers' compensation benefits is Claimant entitled? EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: First aid log Claimant's Exhibit 2: Email from Carla Messier, May 6, 2010 Claimant's Exhibit 3: Carla Messier notes, April 7, 2011 Claimant's Exhibit 4: Carla Messier notes of conversation with Bob Andrews, October 13, 2011 Claimant's Exhibit 5: Carla Messier notes of conversation with Jason Hale, October 13, 2011 Claimant's Exhibit 6: Email from Fletcher Allen Health Care, February 16, 2012 Claimant's Exhibit 7: First Report of Injury (Form 1), April 7, 2011 Claimant's Exhibit 8: Robert Andrews statement, October 14, 2011 Defendant's Exhibit A: Claimant's work log Defendant's Exhibit B: Final Warning of Violations, August 6, 2010 Defendant's Exhibit C: Claimant's affidavit, October 19, 2011 CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Medical benefits pursuant to 21 V.S.A. §640 Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678 FINDINGS OF FACT: 1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont's Workers' Compensation Act. 2. Judicial notice is taken of all relevant forms contained in the Department's file relating to this claim. 3. Claimant is a 38-year-old immigrant from Bosnia. He and his wife came to the United States in 2001 to escape discrimination in their homeland. 4. Claimant does not understand or speak English well. He was assisted by an interpreter during the formal hearing. 5. Claimant began working for Defendant seven years ago, first on the production line and more recently on the third-shift sanitation line. His wife also works for Defendant. 6. As of May 3, 2010 Claimant's average weekly wage was $604.88, which results in an initial compensation rate of $403.25, including two dependents. 7. Claimant has no prior medical history of low back pain or related complaints. Claimant's May 3, 2010 Work Injury 8. On May 3, 2010 Claimant was working his normal sanitation line shift. As he began washing in and around the cheese cutting machine on line four, he noticed that the pan under the shrink tunnel was dirty. Claimant removed the pan, which rests three inches off the floor and weighs approximately 40 pounds, from its brackets and washed it. 9. After cleaning the pan, Claimant bent over to slide it back into place. As he did so, he felt a sharp pain in his back. He immediately let the pan fall to the floor. 10. Claimant next went outside to see if he could find someone to help him slide the pan back onto its brackets and under the shrink tunnel. His line leader, Jason Hale, helped him do so. 11. Soon thereafter, Claimant reported his back injury to Robert Andrews, his supervisor. Mr. Andrews recorded the event in Defendant's first aid log, noting that on May 3, 2010 Claimant had experienced back pain while maneuvering the pan under the shrink tunnel on line four. He thus provided contemporaneous corroboration of both the date and mechanism of injury as Claimant initially reported it. 12. Claimant did not initially seek medical treatment or lose any time from work as a result of his May 3, 2010 injury. Mr. Andrews testified credibly that he followed up with him in the two days following the incident to inquire if his back was still bothering him, and Claimant told him that it was all right. Mr. Andrews passed this information along to Defendant's Human Resource Administrator, Carla Messier, in response to her May 6, 2010 email inquiry about the event. Having learned that Claimant had neither sought treatment nor lost time from work, she determined that it was not necessary to file a First Report of Injury. Claimant's Course of Treatment 13. After completing his shift on May 3, 2010 Claimant returned home. Although his back pain was worsening, he did not seek medical treatment. Instead, the next day he purchased a back brace to help alleviate his pain and enable him to work. Claimant wore the back brace over a tee shirt but under his uniform and apron, such that it was not readily visible to others. This explains why neither Mr. Hale nor Mr. Andrews could recall observing it. 14. Although his low back pain continued to nag at him, Claimant did not seek medical...