29-11WC. Jesus Otero v. Woodstock Inn and Resort.

• Court: Vermont

Vermont Workers Compensation 2011. 29-11WC. Jesus Otero v. Woodstock Inn and Resort Jesus Otero v. Woodstock Inn and Resort(September 29, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 29-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. AA-51834OPINION AND ORDERHearing held in Montpelier, Vermont on April 5, 2011 Record closed on May 21, 2011APPEARANCES:Joseph Galanes, Esq., for Claimant John Valente, Esq., for DefendantISSUE: Did Claimant suffer an injury arising out of and in the course of his employment on May 15, 2005? EXHIBITS: Joint Exhibit I:Medical records Claimant's Exhibit 1:Deposition of Daniel Jackson, March 8, 2011 Claimant's Exhibit 2:May 2005 time card records Claimant's Exhibit 3:Dr. Peraza out-of-work notes, 4/1/08 and 5/13/08 Defendant's Exhibit A: Notice and Application for Hearing, August 13, 2009 Defendant's Exhibit B: Certificate of Dependency Defendant's Exhibit C: Notice of Intent to Change Health Care Provider, August 19, 2008 Defendant's Exhibit D: Letter from Agnes Hughes, August 28, 2009 CLAIM: All workers' compensation benefits to which Claimant proves his entitlement as causally related to his alleged work injuries Costs and attorney fees pursuant to 21 V.S.A. §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 Departments' file relating to this claim. 3. Claimant is a 55 year old immigrant from Lima, Peru. He came to the United States in August 2001 to be closer to his mother and two sisters, who had immigrated here sometime earlier. 4. Within a month after his arrival in Vermont Claimant began working as a dishwasher at Defendant's resort hotel. This employment is the only position Claimant has held since immigrating to the U.S. 5. Claimant received a university education plus postgraduate work in economics while in Peru. He worked as an accountant. 6. Claimant studied English both in high school and at the university, but never to the point of becoming conversant. His language limitations were evident at the formal hearing. He required an interpreter and without her assistance could comprehend and respond only to simple questions posed to him in English. Beyond that, perhaps the most credible evidence of Claimant's limited English proficiency was his assertion that if he could speak English, he would be studying at a university here in the United States, not working as a dishwasher. I find this testimony extremely persuasive. 7. On Sunday, May 15, 2005 Claimant reported to work for Defendant at approximately 4:00 PM. Claimant specifically recalled the day, as the night before he had worked at a wedding on the premises until 2:00 AM. Defendant's time card records substantiate Claimant's recollection, and I find it credible. 8. At some point during his shift Claimant was washing sheet pans...