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Thomopoulos v. Tom Cat Restaurant

June 10, 2008

CHARLES J. THOMOPOULOS, PETITIONER-APPELLANT,
v.
TOM CAT RESTAURANT, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Docket Nos. 2003-2531, 2003-2684.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2008

Before Judges S.L. Reisner and Gilroy.

Petitioner Charles J. Thomopoulous appeals from a December 22, 2006 decision of the Division of Workers' Compensation dismissing his compensation claim after a five-day trial. We affirm.

I.

The following evidence was presented at the Workers' Compensation hearing before Judge LaBoy. Petitioner claimed that he suffered a stroke while attempting to lift a heavy grill at the restaurant where he worked. Prior to the stroke at issue in this case, petitioner had a significant medical history. He had been a diabetic for the past fifteen years, and suffered from an eye condition known as diabetic retinopathy. Petitioner was not taking his diabetes medications. He had also smoked two packs of cigarettes per day for thirty years, and was taking Lipitor for his "sky high" cholesterol. However, prior to the incident in question, petitioner had never had a stroke, heart attack, or any other vascular event.

In September 2001, petitioner was laid off from a diner in Manhattan where he worked as a waiter. He was unemployed until April 2002, and while unemployed he engaged in almost no physical activities. Petitioner did not exercise regularly or belong to a gym, and otherwise led a sedentary lifestyle, until he again found employment.

In April 2002, when petitioner was forty-four years old, he began working at the Tom Cat Restaurant in Wildwood. The restaurant, which was owned by petitioner's brother Paul, was only open seasonally from Memorial Day to Labor Day. Its hours of operation were from 10 p.m. until 2 p.m. the next day. Petitioner's duties included running the kitchen, ordering inventory, cooking, cleaning, and washing dishes. In other words, petitioner "did everything." He normally worked from 9:45 p.m. until 9:45 a.m., seven days a week.

According to petitioner's testimony, on the morning of July 2, 2002, around 9 a.m., he became dizzy while unloading a food delivery by himself. After taking a ten minute break, petitioner began to feel better and resumed unloading. He described the unloading process as follows. Boxes, which ranged from 10 to 50 pounds, were taken from a delivery truck by the driver and placed on the floor of the restaurant. Petitioner then either placed the boxes on the shelves in the kitchen, or carried them eight or nine feet to the walk-in freezer.

After petitioner finished his shift, he returned to his brother's home, where he lived while working at the restaurant. Since he was feeling very tired, he went straight to bed, without showering, which was unusual. Around 8 p.m., petitioner woke up, took a shower, and headed for the restaurant at about 9:45 p.m. According to petitioner, he did not take the night off from work because it was the busiest weekend of the year and he believed that his brother needed him. Indeed, when petitioner informed his brother about his condition and his desire to consult his physician in New York, Paul advised him to take a day off the following week when the restaurant was less busy.

When petitioner arrived at the restaurant on Wednesday, July 3, he felt "awkward like [he] was drained[,]" and also had numbness in his right hand. He nonetheless began preparing to open the restaurant at 10 p.m. by putting fries on the grill and cooking bacon. There were two other employees in the kitchen with petitioner, another cook and a dishwasher.

Once business died down around 4 a.m., petitioner began cleaning. In order to clean the grease that would normally accumulate between the grills from cooking, a 200 pound grill had to be lifted and pulled forward. This task was normally performed by two employees - either the other cook or petitioner's brother. On this night, however, the cook was occupied preparing for the "breakfast rush" the next morning. Therefore, petitioner attempted to lift the grill alone and, while doing so, lost consciousness. He had no recollection of what occurred next.

According to petitioner's brother Paul, he was in the front of the restaurant when he heard someone yelling his name from the kitchen. Paul ran back and found his brother "passed out in front of the grill on the floor." Paul and the cook picked petitioner up and carried him to the booth in an attempt to revive him by slapping him in the face. Paul did not call 911.

Petitioner regained consciousness about fifteen or twenty minutes later. According to petitioner, he felt very light-headed, dizzy, and disoriented, and he could not control his right arm. Paul drove petitioner to Burdette Tomlin Memorial Hospital. Petitioner testified that his brother dropped him off and then returned to the restaurant. On the contrary, Paul testified that he remained with petitioner for the entire duration of his stay.

Hospital Records

According to the hospital records, petitioner was admitted to the emergency room at 7:40 a.m. on July 4th, 2002. He was described as a "well appearing man with no acute distress," as well as "oriented" and "alert" with no indication of confusion. Petitioner's blood pressure was 142/100, with a heart rate of 84.

Emergency room records indicate that petitioner complained of numbness in his right arm, and told staff that he had experienced difficulty since July 2 in grasping objects with his right hand, driving or writing. Petitioner also reported calf cramping in his right leg earlier in the week. A neurological examination revealed that the right shoulders, biceps, triceps and grip strength was diminished, along with his right hip and knee flexing. Further, "[s]ensation and touch were grossly intact except for the right upper extremity which was diminished." Petitioner also "had a slight right facial asymmetry and facial droop."

In a report dated July 5, 2002, Dr. Tzorfas gave the following impression: "Inferior division of the left MCA infarction in a patient with hypertension and hyperlipidemia, smoker and diabetes. These are all risk factors for small vessel disease." Based on petitioner's young age of 44, Dr. Tzorfas recommended a transthoracic echocardiogram, which revealed a probable small patent foramen ovale, i.e., a hole between the chambers of the heart. As a result, a bubble study with transthoracic imaging was recommended. The bubble study revealed "[n]o evidence of right to left intracardiac shunting." In other words, the bubble did not pass through the hole from one side of the heart to the other.

Additional tests were performed on petitioner while at the hospital. An MRI of the brain "revealed findings consistent with a nonhemorrhagic subacute infarct involving the left basal ganglion." An MRA of the brain and neck "revealed atherosclerotic disease," which appeared "to be most apparent involving the origin of the left internal carotid artery." Further, "[t]here was approximately 60% narrowing of the left internal carotid artery; no ulceration; right internal carotid artery was well preserved. No intracranial narrowing." A duplex carotid ultrasound was also performed, which revealed "stenosis [narrowing] of the left internal carotid artery estimated at approximately 60%; stenosis of the right internal carotid artery estimated at less than 40%." A July 4th CT scan revealed "possible cerebral infarct involving the left occipital lobe without hemorrhage." In contrast, a July 11th CT scan came back as "normal."

Petitioner was discharged in "stable" condition on July 13, 1992, nine days after being admitted. His discharge summary indicated that petitioner had a "cerebral vascular accident" (CVA). Notably, nowhere in the medical records is any indication that petitioner ever informed the medical personnel during his stay that he had been lifting a heavy grill when he passed out.

Treating Physicians

Constantine E. Kosmas, M.D., Ph.D., FACC, FACP, in a report dated July 17, 2002, concluded that that the likelihood of petitioner's CVA "to have been secondary to the patent foramen ovale is low in view of the absence of any right to left shunt in the bubble study." In a subsequent report dated December 11, 2002, Kosmas indicated that petitioner conceded he was not very compliant with his medications. In response, Kosmas warned petitioner that "strict ...


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