DANIEL OPIZZI et al. v. JEAN R. HARRIS

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-7005-03T1

DANIEL OPIZZI and
CHRISTINE OPIZZI,

Plaintiffs-Appellants,

v.

JEAN R. HARRIS,

Defendant-Respondent.

_________________________________________________

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September 26, 2005

Submitted September 6, 2005 - Decided:

Before Judges Payne and Graves.

On appeal from Superior Court of New
Jersey, Law Division, Burlington County,
L-107-03.

Borger, Jones and Keeley-Cain, attorneys
for appellant (Gary L. Borger, on the brief).

Styliades, Jackson & Dimeo attorneys for
respondent (Sean D. Cascio, on the brief).
 
PER CURIAM

Daniel Opizzi and his wife Christine Opizzi, suing per quod, appeal from an order of the trial court granting summary judgment in favor of defendant Jean Harris on plaintiffs' claims of injury arising from an automobile accident. The court ruled that plaintiff had failed to present evidence to satisfy either evidential prong found to be necessary to cross the verbal threshold. See James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). After the decision of the motion judge, the New Jersey Supreme Court held in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005) that, in order to satisfy the limitation on lawsuit threshold of the Automobile Insurance Cost Reduction Act (AICRA) and to obtain recovery for pain and suffering, a plaintiff must demonstrate only that he suffered a permanent injury, defined as one occurring "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). We accorded pipeline retroactivity to the Supreme Court's decisions in Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005).
We thus reverse the motion judge's order insofar as it embodied a requirement that plaintiff demonstrate a serious impact upon his life. We focus our discussion on the proof of permanent injury required by DiProspero, Serrano and N.J.S.A. 39:6A-8(a).
The following facts are relevant to our analysis. Daniel Opizzi was involved in an automobile accident occurring on January 20, 2001. He was taken by ambulance to the emergency room at the Memorial Hospital of Burlington County, where he was treated and released with a diagnosis of muscle strain.
On January 26, 2001, Opizzi commenced treatment with John Ashby, M.D., whose initial diagnostic impression was (1) cervical radiculitis at C8 on the left; (2) lumbar radiculitis with positive straight leg raising on the right and pain inhibition and weakness of right hip muscles; (3) thoracic muscular strain; and (4) cervical and lumbar muscular strain. He was seen by Dr. Ashby additionally on February 9, 2001, March 8, 2001, March 23, 2001, April 12, 2001, August 16, 2001, and January 18, 2002. Dr. Ashby referred Opizzi for MRIs of the cervical and lumbar spine, which occurred on March 18, 2001. The radiological report indicated a normal MRI of the cervical spine. With respect to the lumbar spine, the report indicated:
1. DEGENERATIVE ARTHRITIS AND DEGENERATIVE DISC DISEASE L5-S1 WITH A GRADE I DEGENERATIVE SPONDYLOLISTHESIS AT L5-S1.
2. DIFFUSE BROAD-BASED BULGING AT THE L5-S1 DISC WITH NO FOCAL PROTRUSIONS.

Axial images at L3-4, L4-5, and L5-S1 were obtained. These images demonstrate degenerative arthritis and degenerative disc disease at L5-S1. The latter is typified by desiccation and disc space height loss. The former is typified by a grade I degenerative spondylolisthesis. This could best be corroborated with plain films as no spondylolysis is apparent evident [sic] on this examination. Also at L5-S1 is diffuse broad-based bulging of the disc with no focal protrusions. No central or foraminal stenosis is seen at this level or any other level. No other bulges or protrusions are evident. The vertebral bodies show a normal marrow pattern. The filum terminale and conus medullaris are unremarkable.
 
Dr. Ashby conducted electrodiagnostic testing on April 12, 2001, which the doctor interpreted as demonstrating L5 radiculopathy on the left and S1 radiculitis bilaterally. Thereafter, in reports dated August 15, 2001 and January 18, 2002, Dr. Ashby reported a diagnostic impression of (1) degenerative disc disease, degenerative arthritis, spondylolisthesis and broad based disc bulge at L5-S1; (2) lumbar radiculopathy, L5 and S1; and (3) post-traumatic cervical, thoracic and lumbar muscular strain. The January 18 report added pelvic muscular imbalance and functional scoliosis convex to the right. Dr. Ashby also gave an uncertified opinion dated May 1, 2002, in which he stated:
Mr. Opizzi suffered multiple musculoskeletal injuries as a result of his motor vehicle accident on January 20, 2001. He can function as a firefighter, but has persistent pain and stiffness in his low back, mid back and neck, right side worse than the left.

I state, to a reasonable degree of medical certainty, that Mr. Opizzi's injuries are permanent. In particular, I state that his musculoskeletal system has not healed to function normally and will not heal to function normally with further medical treatment. The patient has plateaued in the medical care and remains with persistent pain and stiffness.
 
In April 2001, Dr. Ashby referred Opizzi for chiropractic treatment in Ashby's office by chiropractor Philip J. Scheets, Jr. In a November 7, 2001 summary report after "almost nine" months of treatment, Dr. Sheets diagnosed injury to lumbar nerve root; lumbosacral (joint) sprain/strain; neck sprain/strain (whiplash injury); thoracic sprain/strain; cervical facet joint fixation; and spondylolisthesis lumbo-sacral region. The doctor stated at that time:
I have determined that Mr. Opizzi's history has contributed slightly to his present condition. I note the existence of a spondylolisthesis (anterior slippage of one vertebra on another) at L5-S1, which has a degenerative component as per the MRI of March 19, 2001. However Mr. Opizzi states that he had never experienced any symptoms associated with this condition and was pain free before the accident occurred.
 
Records indicate that chiropractic treatment continued on an intermittent basis until April 9, 2002 with a total of fifty-one treatments. A November 7, 2001 examination by Dr. Sheets disclosed mild to severe muscle spasms in the cervical, thoracic and lumbar regions. Such spasms were documented in records throughout much of Opizzi's treatment and for a period exceeding one year.
As we stated previously, the motion judge, viewing the evidence in a light most favorable to Opizzi, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), found this record to be insufficient to establish a permanent injury causally related to the 2001 motor vehicle accident.
We are satisfied that the objective clinical evidence, N.J.S.A. 39:6A-8(a), that we have recounted is sufficient to establish a permanent injury to Opizzi's lumbar spine. The MRI of that region demonstrated significant findings of a permanent nature at the L5-S1 level, and their effects were confirmed by electrodiagnostic tests.
However, neither the parties nor the court addressed the issue that we deem to be crucial to the case, namely, whether the evidence permits the conclusion that Opizzi's permanent injuries and their sequelae, including pain and muscle spasm, are causally related to the 2001 motor vehicle accident or have their origin in Opizzi's degenerative condition. In this regard, Opizzi's treating physician, Dr. Ashby, stated that "Mr. Opizzi suffered multiple musculoskeletal injuries as the result of his motor vehicle accident." He also stated that "Mr. Opizzi's injuries are permanent" and that "his musculoskeletal system has not healed to function normally and will not heal to function normally with further medical treatment." However, the doctor did not identify the musculoskeletal injuries suffered by Opizzi; he did not state which of those injuries were permanent; and he did not indicate which of the permanent injuries could be causally related to the accident. These defects appear to have significance in this case as the result of the objective clinical evidence provided by the MRI of Opizzi's spine, demonstrating that he had degenerative arthritis and degenerative disc disease with degenerative spondylolisthesis at L5-S1 exactly the spot from which Opizzi's complaints emanated. The MRI disclosed as well a "diffuse broad-based bulging at the L5-S1 disc with no focal protrusions." The radiologist did not indicate whether the bulge was the result of the "disc space height loss" that he associated with Opizzi's degenerative condition. Even if we were to assume that the bulge was the result of the accident, however, we cannot determine whether the bulge was one of those musculoskeletal conditions that Dr. Ashby found to be permanent, or whether the bulge was responsible for the symptoms disclosed in electrodiagnostic testing.
We have additionally been offered the opinion of Dr. Sheets, a chiropractor, who has stated that Mr. Opizzi's history of a degenerative condition and spondylolisthesis had contributed "slightly" to his present condition. Dr. Sheets appears to have attributed Opizzi's present pain to the 2001 accident, noting Opizzi never experienced such symptoms before his accident. However, he does not offer any opinion as to the cause of the pain or whether that pain resulted from a permanent condition that was causally related to the motor vehicle accident. Further, he does not specifically address the question of the cause of the spasms. Nonetheless, Dr. Sheets has reported that Opizzi was pain-free prior to his accident, whereas he now suffers from both pain and muscle spasm, thereby raising at least an inference that Opizzi's complaints, as demonstrated electrodiagnostically and upon physical examination, had their origin in the 2001 motor vehicle accident and in a condition, caused by that accident, that is permanent in nature as AICRA requires.
In this appeal, we do not have the benefit either of the motion judge's views with respect to causation, nor those of the parties. For that reason, although we reverse the order of summary judgment in this matter as the result of what we presently perceive to be an issue of fact, we do not preclude a renewal of defendant's motion, at which time issues of causation can be explored. We express no opinion as to the effect of Polk v. Daconceico, 268 N.J. Super. 568 (App. Div. 1993) upon any subsequent analysis of the evidence in this matter, since that case and the principles underlying it were not raised before the motion judge.

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Reversed and remanded.

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