22-12WC. Al Waters Jr. v. Commonwealth Dairy LLC.
Court | Vermont |
Vermont Workers Compensation
2012.
22-12WC.
Al Waters Jr. v. Commonwealth Dairy LLC
Al Waters Jr. v. Commonwealth Dairy LLC(August 28, 2012)STATE
OF VERMONT DEPARTMENT OF LABORAl Waters, Jr. v. Commonwealth Dairy,
LLCOpinion No.
22-12WCBy: Jane Woodruff, Esq.
Hearing Officer For: Anne M. Noonan
CommissionerState File No.
DD-00357OPINION AND
ORDERHearing held in Montpelier,
Vermont on June 12, 2012 Record closed on July 13, 2012APPEARANCES:Sharon Gentry, Esq. and Thomas Costello, Esq., for
Claimant Jennifer Moore, Esq., for DefendantISSUES:
1. Did Claimant's venous stasis ulcer and/or cellulitis infection
arise out of and in the course of his employment with Defendant?
2. Was Claimant's venous stasis ulcer and/or cellulitis infection
aggravated by his employment for Defendant?
3. If so, to what workers' compensation benefits is Claimant
entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant's Exhibit 1: Curriculum vitae, Gregory
Gadowski, M.D.
Defendant's Exhibit A: Claimant's time records
Defendant's Exhibit B: Claimant's short term disability
application
Defendant's Exhibit C: Claimant's job description
Defendant's Exhibit D: Claimant's Employment Physical Exam
Report
Defendant's Exhibit E: Claimant's employment application
Defendant's Exhibit F: Claimant's resume
Defendant's Exhibit G: Curriculum vitae, Stuart
Glassman, M.D.
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 began work for Defendant in January 2011. Defendant
was then a start up dairy manufacturing plant that planned to produce yogurt.
Claimant was hired as a packager. Before Defendant could go into a production
phase, the machinery had to be set up and the employees had to be
trained.
Claimant's Job Duties from January through
March 2011
4. For the first four weeks of Claimant's employment for
Defendant, he received classroom-type training on how to set up and use the
machines in the plant. During this period, he sat at a table or desk for most
of the day. Employees were allowed two 15-minute breaks during the day, as well
as one hour for lunch.
5. Even after the first four weeks of its operation, Defendant
still had yet to receive its first delivery of milk. Because it had promised
its work crew 40 hours of work per week, the employees were kept busy with snow
shoveling, landscaping, learning how to run a forklift and cleaning the
floors.
6. In late March 2011, Defendant was ready to start test
production runs. Thereafter, employees' lunch breaks were reduced from one hour
to only 30 minutes.
7. By April 2011 Defendant's production runs were to the point
where it was anticipating that the plant would soon be fully operational. The
employees began to assume their own job duties on a regular basis.
8. Claimant's specific job duties as a packager consisted of
filling boxes on a conveyor belt with small containers of yogurt. For that
portion of his job he stood at the conveyor belt. However, he was also expected
to work at the end of the belt and load the boxes of yogurt onto a pallet. When
the pallet was full, Claimant then carried it to the cooler for storage. As
Claimant credibly described it, "I bounced around between machines."
9. Based on Claimant's own credible testimony, I find that there
were no extended periods of static standing during the pre-production phase of
his employment for Defendant. I further find that once the plant became fully
operational the production line workers, including Claimant, moved around
frequently and interchanged positions.
Claimant's 2010 and 2011 Venous Stasis
Ulcers
10. Claimant suffers from venous stasis deficiency disease. This
disease occurs when the valves in one's veins become incompetent or defective.
As a result, the normal flow of blood back to the heart is impaired. Gravity
causes a reversal of blood flow, which...
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