On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-3652- 99.
Before Judges Kestin, Steinberg, and Alley.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 5, 2001
Pursuant to leave granted, plaintiff Jennifer Barker appeals from an interlocutory order which precluded her, on the basis of collateral estoppel, from introducing any evidence in her personal injury action regarding MRI reports and testimony relative to her claim that she suffered spinal injuries in an accident and was required to undergo spinal surgery. We reverse.
On May 13, 1997, a motor vehicle operated by plaintiff was struck by a vehicle operated by defendant, John Allen Brinegar. The vehicle operated by Brinegar was owned by defendant Dollar Rent-A-Car.*fn1 At the time of the accident, Brinegar was employed by defendant Spartan Foods of America, Inc. In the fifth count of her complaint, plaintiff sought damages against her insurance carrier, defendant State Farm Insurance Companies (State Farm), contending that it would not pay any personal injury protection (PIP) benefits subsequent to November 10, 1998. Specifically, she alleged that she was scheduled to have orthopedic surgery and "may need further physical therapy, thereby, incurring additional medical expenses." Immediately after the accident, plaintiff went to Hackensack Medical Center's emergency room. She was given emergency treatment and was told to follow up with her private physician. On May 15, 1997, she went to her personal physician, Dr. Adeniyi Ogunkoya, for treatment. Dr. Ogunkoya's initial diagnosis was posttraumatic lumbosacral sprain/strain; posttraumatic cervical sprain/strain; muscle spasms, shoulder tenderness, and wrist pain. Dr. Ogunkoya ordered an MRI of the lumbosacral spine, which showed "abnormal appearance of the L4 vertebral body with posterior displacement of the posterior wall especially prominent at the endplace causing severe stenosis of the bony canal. Lateral recesses and neural foramina." Upon discharge, on December 30, 1997, Dr. Ogunkoya rendered the following diagnosis: Chronic traumatic lumbosacral sprain/strain; posttraumatic cervical sprain/strain; posttraumatic left wrist pain; headaches; and hypertension. He also noted that at the time of discharge, plaintiff was still experiencing severe discomfort and significant limitation of range of motion in the lumbosacral spine area. He recommended that she continue to exercise and return to his office for further re-evaluation or orthopedic referral if her condition worsened.
On July 16, 1998, at the request of State Farm, plaintiff was evaluated by Dr. Lawrence Kraut, an orthopaedic surgeon. In his report, dated July 16, 1998, Dr. Kraut said he found no objective signs of permanent orthopedic disabilities or radiculopathies related to the accident. He also opined that "the reported MRI scan of the lumbosacral spine [did] not represent acute accident- related pathology." He noted that no further treatment was necessary other than a self-directed home therapy program if plaintiff had further subjective complaints.
Plaintiff continued to experience pain in her lower back and legs. Consequently, she was referred to Dr. Calvin C. Matthews, an orthopaedic surgeon. Dr. Matthews had an MRI conducted on plaintiff on August 26, 1998. He concluded that she suffered from a severe spinal stenosis at the L4 level. He further opined that at L3-L4, there appeared to be a mild disc bulge and a suggestion of a disc herniation at L4-L5 centrally and to the left. He recommended that she receive decompression surgery on her spine. The surgery was performed on December 3, 1998. Thereafter, plaintiff had several follow-up examinations. She continued to complain of pain and underwent physical therapy treatments. Plaintiff continued treating with Dr. Matthews until April 3, 2000. At that time, although there was some improvement, plaintiff still experienced discomfort and tenderness to her spine.
While her personal injury action was pending, plaintiff sought payment of her medical bills from State Farm. Unable to amicably resolve her request for payment of her outstanding medical bills, on June 2, 1999, plaintiff filed a demand for arbitration of the dispute with the American Arbitration Association (AAA). On July 7, 1999, plaintiff filed an amended demand for arbitration. At the time the demand for arbitration was made, plaintiff's attorney possessed a discharge summary from East Orange General Hospital, which referred to the hospitalization for the surgery, and a March 22, 1999 report from Dr. Matthews relating to plaintiff's progress after the surgery. Both reports were very brief and did not mention the accident.
On April 26, 1999, Dr. Kraut authored an additional report.*fn2 In that report, Dr. Kraut concluded that while plaintiff may have suffered "soft tissue sprains" as a result of the accident, he also said she did not suffer an acute fracture of the L4 vertebral body. Rather, he opined that her symptoms were "most likely Paget's disease . . . [which] usually manifests and produces signs and symptoms of spinal stenosis." He concluded that "the diagnosis of spinal stenosis as well as the subsequent back surgery of 12/3/98 [was] not causally related to the motor vehicle accident of 5/13/97."
On January 15, 1999 and January 27, 1999, plaintiff's attorney had written to Dr. Matthews requesting a report. On April 27, 1999, counsel was advised by Matthews that the report was completed and would be sent upon payment of $250 for its preparation. On June 28, 1999, counsel forwarded a check for $250 to Matthews and again requested the report.
On November 8, 1999, the arbitration took place. At that time, plaintiff's attorney still did not have a diagnostic report from Dr. Matthews. The arbitrator allowed plaintiff twenty days to submit additional evidence, presumably the report of Dr. Matthews, and State Farm was granted an additional twenty days to respond. On November 10, 1999, counsel again wrote Dr. Matthews requesting a report. Apparently, none was submitted. Consequently, on February 12, 2000, the arbitrator rendered his decision, concluding that plaintiff had "failed to prove, by a preponderance of the credible evidence, that the unpaid claims included in [the] arbitration were causally related to the accident or were medically necessary." Finally, on December 1, 2000, plaintiff's attorney received Dr. Matthews's report, dated October 30, 2000.
In that report, he offered the following diagnosis: sprain/strain, cervical spine; compression fracture, L4 vertebrae; sciatica; and strain/sprain, left wrist with contusion. He also noted that plaintiff's "symptomatologies suggested radiculopathy into the left lower extremity, weakness of the left lower extremity and sensory deficit." He reported that the surgery had been performed. He further noted a number of follow-up visits as a result of pain suffered by plaintiff. He prescribed a course of physical therapy and concluded that plaintiff's injuries were "within reasonable medical judgment causally related to the accident of 5/13/97."
Prior to trial in the personal injury action, defendants Brinegar and Spartan Foods moved to exclude any evidence or testimony regarding plaintiff's back surgery and related medical expenses. The motion judge determined that the arbitrator's decision had preclusive effect and granted the motion. Plaintiff appeals, contending that the motion judge erred in giving preclusive effect to the determination of the arbitrator, ...