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...