Price v Accident Compensation Corporation (Suspension of Entitlements)

IN THE DISTRICT COURT AT WHANGAREI [2018] NZACC 44 ACR 147/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN KEVIN PRICE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 January 2018 Appearances: Ms Brock for the appellant Ms Becroft for the respondent Judgment: 22 February 2018 RESERVED JUDGMENT OF JUDGE DENESE HENARE Suspension of Entitlements s 117 the Accident Compensation Act 2001] [1] The appellant, Kevin Price was surfing in February 2016 when he suffered injury. The Corporation approved the claim for cover for a quadriceps tendon rupture and sprain of hip and thigh, left side. [2] By decision of 24 May 2016, the Corporation suspended Mr Price's entitlements including weekly compensation. Cover for the tendon rupture was revoked on the basis imaging had shown this injury was not sustained as a result of the accident. The Corporation went on to state: ACC accepts you suffered an acute sprain injury. The medical reports showed that your current condition is due to a pre-existing medical condition which may have aggravated but has not been caused by the accident or covered by ACC. [3] Mr Price challenged this decision unsuccessfully at review. [4] Mr Price takes no issue with the revocation of cover decision for the left quadriceps tendon rupture. However, Mr Price contends there was insufficient basis for the Corporation to be not satisfied and to suspend his entitlements. The Accident [5] Mr Price described his surfing accident at review: What happened as I was doing that I was twisting and pushing my back foot - which is never, ever happened to me in my life - slipped off the back of my board and when it came off the back of the board, it went into the water and my body was going forward so I did the traumatic splits, like, and my other foot was still on the - as you can imagine, was still on the surf board. So the surf board is floating, that's my left leg and my right leg was in the water. So I felt a very sharp, intense pain. I came up out of the water and I lay on my surf board for quite a while because I actually - it actually made - the pain was that bad it made me feel sick. So I lay there and after a while I said to my son, "that I'm going to have to go in" so I paddled in and found it very, very difficult putting weight on my leg at all. The Medical Evidence [6] An x-ray of the pelvis and left hip noted no fracture or dislocation, degenerative changes in bilateral hips. [7] An MRI arthrogram of the left hip was taken on 19 April 2016 which showed: Findings: There is deformity and heterogenous mild hyper intensity of the superior acetabular labrum without enhancement from intra-articular contrast in keeping with degenerative fraying. A tiny linear water - sensitive sequence defect in the base of the anterior acetabular labrum in keeping with a small tear is noted. This also does not fill with intra articular contrast. There is mild superior articular cartilage thinning, subchondral marrow hyper intensity and cyst formation in the acetabular roof, and osteophyte formation of the superolateral aspect of the femoral head in keeping with osteoarthritis of the hip joint. Decreased femoral head - neck offset with a small subchondral cyst and a small bony bump of the anterior cortex of the femoral neck in keeping with femoroacetabular impingement are noted. There is minimal T2 hyper intensity of the gluteus minimus and medius tendons at the greater trochanter insertions in keeping with mild tendinosis. The tendons, muscles and ligaments at the left hip joint are otherwise normal. Conclusion: Degenerative fraying of the superior acetabular labrum and a small tear of the base of the anterior labrum. Mild tendinosis of the gluteus minimus and medius tendons. Osteoarthritis of the left hip joint secondary to femoroacetabular impingement. [8] On 2 May 2016 Dr Brick, Orthopaedic Surgeon opined the accident resulted in a twisting movement and hyperflexion of the hip, combined with abduction. He noted there had been no prior problems with the hip. Dr Brick diagnosed a chondrolabral injury left hip and CAM dominant femoroacetabular impingement of the hip (CAM FAI) and reported: There is no question that Kevin's CAM FAI has preceded his surfing injury. however it was asymptomatic and clearly quite stable given the lack of pain with his active lifestyle. It is likely that he had an anterolateral flap of cartilage typical of CAM FAI that has been damaged or displaced in the act of surfing injury. This would be reflected by the bone oedema (bone bruising) beneath the anterolateral acetabulum. The pre-existing condition that may be contributing to non resolution is CAM FAI. It should be understood that this is relatively common and does not always cause symptoms. There is no question though that it was a predisposition and left Kevin vulnerable to injury as he would have had abnormal labrum as well as abnormal articular cartilage over the anterolateral acetabulum prior to his surfing injury. [Emphasis added] [9] The file was reviewed by Dr Odedra, Branch Medical Advisor who indicated the main pathology present was the pre-existing hip joint pathology with degenerative changes noted in both hip joints. Dr Odedra accepted the accident could have caused an acute sprain, yet considered that would have settled within six to eight weeks of the accident, and the ongoing symptoms resulted from the pre-existing condition. [10] The Corporation received advice from Dr Van Buuren, General Practitioner on 17 May 2016 who reported there were no pre-existing hip problems and referred to a labral tear present on the MRI scan. [11] The Corporation's letter suspending entitlements issued seven days later. [12] For the purposes of review, Mr Price obtained a report from Mr Bradley, Orthopaedic Surgeon who noted the mechanism of injury and predisposing features of CAM impingement, and opined this was a traumatic injury to the chondrolabral junction. Mr Bradley went on to report: Going back through the imaging today there is some cystic change at the CAM lesion at the femoral head neck junction and he has an increased alpha angle on the down laterals and the area of impaction can be clearly identified in the MR scan. I note that his x-ray shows no loss of joint space. There are no signs of arthritis and the labrum looks quite lacerated and oedematous with some oedema beneath the chondral junction and likely point of impacting injury. Impression: It would be my opinion that although Kevin has the bony morphology putting him at risk for injury, the accident of 25 February where he slipped off his surf board powering his hip into the flexed impaction with his left foot on the board while his right foot went into the water causing him months of pain and limitation was most certainly traumatic. He has failed to rehabilitate from this despite religiously doing his exercises and attempted gradual return to activities. [Emphasis added] [13] On 2 September 2016 Mr Fong, Orthopaedic Surgeon of the Clinical Advisory Panel ("CAP") noted degenerative findings on the MRI scan, including the CAM FAI morphology, mild thinning of the superior articular cartilage, subchondral bone marrow oedema, cyst and osteophyte formation, and concluded Mr Price was suffering from left hip osteoarthritis with a degenerative acetabulum labral tear. In Mr Fong's opinion, this was a gradual process condition, at best symptomatically aggravated in the accident. [14] For the purposes of the appeal, additional evidence was obtained from Dr Brick who opined in his report of 10 April 2017 that the mechanism of injury entailed doing the splits. Dr Brick stated: It has been a common experience that adult patients present having done the splits with damage confirmed at arthroscopy of an unstable labrum which can be probed and moved centimetres rather than millimetres and an adjacent flap of articular cartilage. This pattern is created by the forceful intrusion of the non spherical head - neck junction into the spherical acetabulum. The severe nauseating pain and the immediate loss of function which has persisted are supportive of traumatic causation. Contribution of CAM FAI: Kevin has reduced femoral head neck offset. This is the so called CAM morphology referred to through the history and reports. ... Kevin would have assumed his adult hip morphology around the age of 14-16 and has thus lived an active lifestyle for almost half a century with this particular morphology. I would point out that the radiologic evidence of long standing impingement is very mild for a man in his early 60s. Radiology report by Dr Carla Morkel dated 22 March 2016 writes "minor degenerative changes in bilateral hips". Having looked at the films myself, I would regard them as being age-appropriate changes for an active man in his 60s If we are to ascribe Kevin's current pain and loss of function to chronic pre- existing FAI, we must have some certainty that his hip would become symptomatic anyway. The truth is we have no such certainty, in fact the majority of patients with the morphology of FAI neither become arthritic nor symptomatic. [15] Dr Brick identified Mr Price's injury as tearing of the anterolateral acetabular labrum. He emphasised that the CAM morphology was extremely common in the general population, being present in up to 52 percent of males and higher in active individuals. Dr Brick considered the degenerative changes present were age appropriate for an active man in his 60s. Dr Brick went on to explain causation as follows: All this can change after a significant injury. The small stable flap of articular cartilage becomes a large unstable flap and the previously functioning fluid seal (labrum) losses its seal function and becomes highly mobile. It becomes sufficiently mobile that it remains under pressure in the sitting position. Patients complain of a dull ache when they are sitting for any period of time. The labrum becomes so immobile that in certain twisting positions the patient gets a stabbing pain in the groin. When we place such a hip under traction, in the operating room, there is no resistance of the suction seal as the labrum is incompetent. [16] Dr Brick then went on to respond to the reviewer comments and those of Dr Odedra. He stated: The sclerosis and cysts noted by Dr Odedra are minor in nature and are consistent with 50 years of low grade asymptomatic CAM action. Dr Odedra calls this a congenital condition. This should be corrected to a developmental condition as it is never present before the age of 12. He states that the femoral head jams repeatedly on the rim of the acetabular. This is factually incorrect. The femoral head does not jam on anything as it is spherical. The femoral head - neck junction does not jam on the rim with CAM - action. Rather the femoral head - neck junction begins to intrude in the spherical acetabulum. In every day life it requires considerable force to push the spherical portion of the femoral head - neck junction deep within the socket. Such a large force was encountered by Kevin during his surfing accident. I wonder if Dr Odedra is getting mixed up between CAM and pincer action in his description. Dr Odedra refers to 6-8 week post accident settling period for so called hip joint sprain. Despite seeing more hip injuries in the past 12 years than any other orthopaedic surgeon in New Zealand I am not quite sure what a hip sprain is and I am not familiar with the 6-8 week period of recovery that Dr Odedra talks about. I would point out that Kevin still suffers from significant pain and loss of function a year after his accident and this would be consistent with some significant structural change in his hip joint. That structural change, as mentioned, is a large articular cartilage flap and a torn hypermobile incompetent acetabular labrum. ... It is my experience that when an individual presents late (over the age of 40) with significant CAM action, the patient usually presents with significant joint space narrowing, osteophyte formation and more advanced osteoarthrosis. On this basis I would make the conclusion that Kevin's CAM action is at the mild end of the spectrum. It is bilateral and at the mild end of the spectrum. Summary: In summary we have a 63 year old man functioning at a high level with no previous hip symptoms. We have a forceful mechanism of injury that is scientifically supported as being appropriate to damage both articular cartilage in the acetabular labrum of the hip joint. We have severe pain and loss of function consistent with structural damage to the joint. We have symptoms persisting a year later consistent with structural damage. [Emphasis added] [17] On 4 May 2017 Mr Fong provided further comment reiterating his previous conclusion that in the presence of osteoarthritis of the hip joint, the labral tear was likely degenerative. The primary condition requiring treatment was osteoarthritis which could not be linked to a personal injury by accident. [18] On 18 July 2017 the full CAP provided comment supporting Mr Fong's findings and concluding that Mr Price's ongoing symptoms are consistent with osteoarthritis and a chondral tear, neither of which is caused by the February 2016 accident. Legal Framework [19] The statutory power to suspend or cancel an entitlement is provided under s 117(1) of the Accident Compensation Act 2001 ("the Act") which provides that: 117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. [20] It is well established, pursuant to the decision in Ellwood' before entitlements can be suspended, the Corporation must show that it had a sufficient basis on which entitlements should be suspended, with Mallon J noting in particular: A claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence ... if there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the Reviewer and the District Court apply the same test the same approach should be taken at each stage. [21] As a result before the medical evidence provided by both parties after the Corporation's decision can be considered, the Court must first be satisfied that the Corporation had a sufficient basis to be not satisfied that Mr Price had a right to continue to receive entitlements at the time the decision to suspend was made. Only if this can be established does the Court consider whether there remains a sufficient basis to be not satisfied having regard to all the evidence now before the Court. [22] With regard to what is required for the Corporation to be satisfied as to whether a claimant remains entitled to an entitlement the starting point is s 67 of the Act which provides: 57 Who is entitled to entitlements A claimant who has suffered a personal injury is entitled to 1 or more entitlements if he or she- (a ) has cover for the personal injury; and is eligible under this Act for the entitlement or entitlements in respect of the personal injury. [23] As a result the correct approach in determining whether a claimant is no longer entitled to an entitlement or entitlements is to consider whether the two components of s 67 continue to be satisfied.? In other words entitlements can only be suspended under s 117(1) if either of the two requirements in s 67 are not, or are no longer, met. [24] The requirement under s 67(a) is most often manifest when the covered injury is recorded as a sprain or a strain, and the entitlement sought is for a more specific injury. Ellwood v Accident Compensation Corporation NZAR 205. N Hayes v Accident Compensation Corporation [2015] NZACC 327 and Newton v Accident Compensation Corporation [2015] NZACC 22, decisions of His Honour Judge Powell. Here, Dr Brick opined that a chondrolabral injury or structural damage to the hip joint was caused by the accident. [25] A causal enquiry is necessary to determine whether the injury is related to the pathology for which cover was granted or whether the injury for which the entitlement is required occurred independently of the covered injury. It is well established that a claimant cannot rely on a non covered injury to support a claim for entitlements, and in the absence of cover, no entitlements can flow.3 [26] In contrast, where there is no dispute over the extent of cover, the question becomes whether the claimant is still eligible for a particular entitlement or entitlements pursuant to s 67(b). If the covered injury has resolved the claimant will for example no longer be eligible for weekly compensation as he or she is "no longer unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury" pursuant to s 103(2) of the Act. [27] The issues to be determined are: [a] Did the Corporation have sufficient basis as at the date of the decision to suspend on 24 May 2016 to be not satisfied that Mr Price should continue to receive entitlements? and [b] Is the decision to suspend correct in light of the evidence now before the Court? Whether the Corporation had a Sufficient Basis to Suspend at the date of Decision 28] Ms Becroft submitted the suspension decision was correct at the time it was made. In particular she submitted that Dr Odedra, Dr Fong and CAP agreed that the evidence showed Mr Price suffered from a pre-existing bilateral hip condition. Medwed v Accident Compensation Corporation [2009] NZACC 87 at [13] and [26]. [29] In Ms Becroft's submission: Dr Odedra's conclusion is consistent with Mr Brick's, to the extent that Mr Brick also implicated a more significant hip pathology, rather than the originally covered sprain. On this basis the Corporation suspended entitlements because there was reasonable evidence to conclude a covered sprain injury was no longer the cause of Mr Price's symptoms. [30] Ms Becroft also submitted the weight of the evidence following the Corporation's decision both from Mr Fong and the full CAP supported the suspension. [31] In Ms Becroft's submission, CAP concluded the evidence showed the chondrolabral pathology was part and parcel of the underlying osteoarthritis that arose in the context of impingement from the CAM morphology. On this basis, the Corporation's decision is correct. Discussion and Analysis - Suspension [32] Both Ms Brock and Ms Becroft refer to the major cases decided by the Courts in considering issues of suspension and causation.+ Ms Becoft set out the relevant tests that apply here: The initial onus is on the Corporation to show that as at the time the decision was issued there was sufficient basis for it to be satisfied that a claimant was no longer entitled. . Once that burden is satisfied, the onus shifts to the Applicant to show that the Corporation's decision was wrong. . In cases where the evidence indicates that there is no longer a causal nexus between a claimant's symptoms and the covered injury, suspension will be justified. If there is a nexus, but the evidence indicates that the cause of ongoing symptoms is wholly or substantially in relation to an underlying condition, suspension will also be justified. Ambros v Accident Compensation Corporation [2007] NZCA 304 and Ellwood v Accident Compensation Corporation [2007] NZAR 205. The medical evidence needs to be considered alongside the lay and scientific evidence - robust inferences in terms of causation can be drawn, but only in circumstances where there is an evidential foundation on a balance of probabilities which supports the inference. Supposition, conjecture, and mere risk of causation will not suffice. [33] I start the analysis by considering the evidence available at the time of the Corporation's decision to suspend entitlements. [34] At the time of suspension, the Corporation had before it the imaging, together with reports of Dr Brick, Dr Odedra and Dr Van Buuren. When this evidence is considered carefully, I am satisfied the Corporation did not have a sufficient basis to suspend Mr Price's entitlements. [35] First, it is clear by the date of the suspension decision, the focus was on whether or not Mr Price's pathology in imaging was chronic or traumatic. Whilst Dr Odedra opined the accident could cause "an acute hip region injury of sprain/strain" he considered this injury "would be expected to settle or resolve by 6/8 weeks from the date of accident". Dr Odedra does not explain this view. The covered injury was not a hip joint strain but a hip and thigh sprain. In my opinion, Dr Odedra's statement suggests some uncertainty. [36] Dr Odedra asserts the ongoing symptoms are caused by early arthritic changes in the labrum (cartilage of hip joint). However, there is no discussion of the mechanism of accident and the symptoms as they relate both to the covered injuries and to the labrum. The symptoms experienced by Mr Price were reported in the client interview transcript of 13 April 2016, of pain radiating from the left hip down the left leg and on occasion to the ankle area. There was also no consideration of symptoms leading to reported difficulties with driving a manual car and operating the foot pedal of the commercial sewing machine in his leather business reported early in May 2016, before the suspension decision. The symptoms too of tenderness at the quadriceps group into the hip reported in the contemporaneous notes of Dr Buuren are not taken into account in Dr Odedra's opinion. [37] Secondly, whilst Dr Odedra noted there should be revocation of the rupture of the quadriceps' tendon covered injury, the symptoms attendant upon that presentation as a result of the history and ongoing symptoms are not explained. There is no evidence explaining why the covered rupture injury should be revoked save a comment that "the diagnosis is not present and can be removed in discussion with GP". There is no evidence before me of the subsequent discussions or reasons to support revocation. I observe Mr Price takes no issue with revocation of the quadriceps tendon rupture which occurred at the same time as the suspension. 38] Thirdly, whilst Dr Brick implicated a significant hip pathology in his first report which he opined was injury related having regard to a plethora of factors including mechanism of accident, history, clinical presentation and imaging, Dr Odedra disagreed and focussed his comments on refuting this opinion based on the imaging alone. [39] Ms Becroft submitted Dr Odedra had the imaging before him and was able to conclude that a pre-existing condition was responsible for Mr Price's ongoing symptoms. Against that, Dr Brick argued the pre-existing condition is CAM FAI and it is not consistent with a chronic condition, but the anterolateral flap of cartilage was damaged due to trauma. The accident caused a new pathology. [40] At the time of the suspension, the facts show some uncertainty about resolution of the sprain/strain injuries with no explanation provided by Dr Odedra of factors including discussion of the nature of the symptoms supporting such covered injury or not. [41] At best, there is difference of opinion regarding an implication of pathology. Dr Brick's opinion considers history, mechanism of accident, presentation, clinical findings and imaging. Dr Odedra draws conclusions on the imaging alone. [42] Case law in this jurisdiction has noted that the suspension of entitlements is a serious and significant decision with huge implications for a claimant. I take into account the difference of opinion here is between a specialist with experience in sports orthopaedic surgery and a Branch Medical Advisor, General Practitioner. In my opinion, it would have been prudent for the Corporation to have obtained orthopaedic opinion prior to suspension. [43] I turn to consider the evidence obtained following the suspension decision. 44] Dr Bradley, Orthopaedic Surgeon diagnosed a chondrolabral injury from a hperflexion surfing accident. Apart from noting cystic and arthritic changes on imaging, Dr Bradley does not address causation. [45] Dr Haycock referred the matter to Mr Fong. Mr Fong does at least state there is a labral tear in addition to bone oedema and cyst formation. However, like Dr Odedra's report, there is no discussion of the wider factors at play. I find Mr Fong's brief report asserts an opinion rather than providing explanation to support the opinion. On this basis, I place little weight on it. [46] Following review, Dr Brick referred to the mechanism of accident and studies in support, symptomology, imaging, the labral tear, cited twisting action and hyperflexion of the hip. Dr Brick explained the hip was pushed into hyperflexion and abduction with symptoms of nauseating pain and immediate loss of function supportive of traumatic causation. The conclusion about the forcefulness of the mechanism of injury as causing injury is supported by Mr Price's unchallenged evidence that he had no prior problems prior to the surfing accident. [47] Ms Becroft submitted that the weight of the evidence from Mr Fong and the full CAP comment clearly counter Dr Bick's view and established the CAM morphology was part and parcel of a widespread degenerative osteoarthritis, including the labral tear [48] Whilst I have given little weight to Mr Fong's report, the full CAP opinion requires careful consideration. CAP conclude whilst Mr Price suffered significant symptoms at the time of accident, chronic FAI is evidenced by cystic changes, oedema, frayed labrum and cartilage changes affecting both sides of the hip joint. In response to Dr Brick's opinion, CAP opined there is no evidence of an existing stable lesion becoming unstable. Neither are they aware of any features to differentiate a new pathology from the pre-existing chondrolabral abnormalities. Ms Becroft submitted the following factors are relied on by CAP: The mechanism of accident which, while significant, is not necessarily the basis of the labral tear. The literature studies relied on by Mr Brick do not clearly indicate that labral tears are caused by one off or repetitive episodes, or the particular risk position identified. . The Appellant did not suffer significant symptoms immediately after the accident, and did not seek treatment for three weeks which is more in line with a symptomatic aggravation of a pre-existing condition. X-rays within a month of the accident confirm changes of longstanding which would have clearly predated the covered injury. The changes reported on the arthrogram were consistent with significant osteoarthritis associated with chronic FAI effects which also cause labral wear. The labral tear is part and parcel of that pre-existing widespread condition. . The labral tearing would have occurred in the context of numerous impingement episodes which would have occurred during the Appellant's active lifestyle (i.e. wear and tear). There are no features that would differentiate any new and distinct pathology in the cartilage of the labrum from the pie-existing chondrolabral abnormalities. [49] Whilst disputing Dr Brick's conclusions, it is primarily the imaging upon which CAP draws its conclusion of the pre-existing morphology as consistent with a chronic condition as follows: The normal anatomy of the hip allows for a wide range of motion. Altered bony morphology predisposes to FAI and the secondary consequences of this impingement process, including acetabular labral tears, chondrolabral lesions, and osteoarthritis. The types of altered bony morphology associated with femoroacetabular impingement are CAM and pincer. This advice will focus only on the CAM type of bony morphology given its relevance to this case. CAM bony morphology is characterised by femoral head-neck abnormalities. It includes a loss of femoral head-neck offset (due to an increase in size of the waist of the femoral neck relative to the femoral head, or a bony bump at the head-neck junction), and asphericity at the anterolateral femoral head-neck junction. The presence of CAM morphology means that when the hip joint is flexed there is abnormal contact, abutment or impingement, between the femoral head/neck (the ball part of the joint) and acetabulum (socket). This is known as FAI. This impingement process induces compression and shear stresses at the junction between the labrum and the cartilage and can cause a separation between the two (chondrolabral separation), Over time, repetitive CAM abutment/impingement can lead to changes in the acetabular labrum and/or adjacent articular cartilage (the chondral surfaces) as is the case for this client. [50] It is acknowledged that CAP provided detailed explanation of CAM pathology or detail about CAM morphology. [51] On the other hand, Dr Brick has provided several reports including in response to the review decision. Dr Brick noted Reviewer comments of "a rather vague injury". Dr Brick identified the injury as cartilage damage and he explained that the changes after a significant injury affect a small stable flap of articular cartilage to a point where it becomes unstable and remains under pressure. Dr Brick noted the hip morphology was at the mild end of the spectrum, that there were no cross-over signs, with a perfectly formed socket and no risk factors on the other side of the joint. On the femoral side, Dr Brick noted a small anterior CAM and concluded "we have no grounds to conclude that Kevin was going to become symptomatic without the significant impact of his injury". Dr Brick concluded in his 2017 report that: If we are to ascribe Kevin's current pain and loss of function to chronic pre- existing FAI, we. must have some certainty that his hip would become symptomatic. The truth is we have no such certainty, in fact the majority of patients with the morphology of FAI neither become arthritic nor symptomatic. Were even half the males in New Zealand to present with hip pain who had CAM morphology we would have almost a million individuals with hip pain. This needs to be balanced against the total of around 750 to 1,000 hip arthroscopics per year in the whole of New Zealand for all causes in all age groups. It only takes a moments mathematics to appreciate that only a very small percentage of individuals with CAM morphology ever become symptomatic. This is because mild CAM action, as we see in Kevin's case, creates localised and fairly minor damage. The chondrolabral junction breaks down with time. Small cysts may form at the femoral head-neck junction. There maybe a tiny stable flap of articular cartilage. There maybe minor damage to the labrum however it continues to function as a fluid seal and stabilising structure as it holds its position on the acetabular rim. All this can change after a significant injury. The small stable flap of articular cartilage becomes a large unstable flap and the previously functioning fluid seal (labrum) loses its fluid seal function and becomes highly mobile. It becomes sufficiently mobile that it remains under pressure in the sitting position. Patients complain of a dull ache when they are sitting for any period of time. The labrum becomes so immobile that in certain twisting positions the patient gets a stabbing pain in the groin. When we place such a hip under traction, in the operating room, there is no resistance of the suction seal as the labrum is incompetent. I would note that the Reviewer, Mr Lock made the statement "the difficulty is that Mr Brick merely notes the likelihood of a rather vague injury noted as cartilage damage". This description is based on having seen this injury perhaps a thousand times before and again I would state that an unstable flap of articular cartilage and a hypermobile incompetent labrum, are the cause of ongoing symptoms in an individual like Kevin. He complimented the detailed medical explanation provided by Dr Odedra and the Reviewer did acknowledge that Dr Odedra has never seen or treated this particular condition. I would point out that the bone oedema Dr Odedra refers to is localised and may well be residual from the impact injury suffered in Kevin's surfing accident. Bone oedema can be present for months after an accident and it is not the widespread bone oedema that we see in progressive osteoarthrosis but rather a small localised area at the point of impact at the front of the acetabulum. The sclerosis and cysts noted by Dr Odedra are minor in nature and are consistent with 50 years of low-grade asymptomatic CAM action. Dr Odedra calls this a congenital condition. This should be corrected to be a developmental condition as it is never present before the age of 12. He states that the femoral head jams repeatedly on the rim of the acetabulum. This is factually incorrect. The femoral head does not jam on anything as it is spherical. The femoral head-neck junction does not jam on the rim with CAM-action. Rather the femoral head-neck junction begins to intrude in the spherical acetabulum. In everyday life it requires considerable force to push the aspherical portion of the femoral head-neck junction deep within the socket. Such a large force was encountered by Kevin during his surfing accident. I wonder if Dr Odedra is getting mixed up between CAM and Pincer action in his description. Dr Odedra refers to 6-8 week post-accident settling period for a so- called hip joint sprain. Despite seeing more hip injuries in the past 12 years than any other orthopaedic surgeon in New Zealand I am not quite sure what a hip sprain is and am not familiar with the 6-8 week period of recovery that Dr Odedra talks about. I would point out that Kevin still suffers from significant pain and loss of function a year after his accident and this would be consistent with some significant structural change in his hip joint. That structural change, as mentioned, is a large articular cartilage flap and a torn hyper incompetent acetabular labrum. 3. How severe is Kevin's CAM hip morphology?: Whether or not a hip becomes symptomatic with chronic FAI is a balance between the severity of the hip. morphology, the activities of the individual and time. If the CAM is very large and this is added to a deep socket, an individual can become symptomatic at a relatively young. age (25-30) even if they don't play any risk sport. If cam morphology is more mild then more risky and repetitive behaviour is required to produce damage and symptoms Kevin's hip morphology is at the mild end of the spectrum. His lateral centre edge angle is 33 indicating completely normal socket depth. He has no crossover sign which means his socket is correctly orientated. Thus with a perfectly formed socket there are no risk factors on this side of the joint. On the femoral side there is a small anterior CAM. I have measured Kevin's alpha angle on MRI at 530 which is only just above the normal range. The 53 alpha angle is also confirmed on the lateral x-ray taken on 19 April 2016. Thus Kevin has a perfectly formed socket and a small CAM. It is my experience that when an individual presents late (over the age of 40) with significant CAM action, the patient usually presents with significant joint space narrowing, osteophyte formation and more advanced osteoarthrosis. On this basis I would make the conclusion that Kevin's CAM action is at the mild end of the spectrum. It is bilateral and at the mild end of the spectrum. Declining medical treatment to an individual after a significant accident has a very large impact on the life of that individual. As such, it is very important that there is clear scientific reasoning to conclude that any pre-existing condition has resulted in the individual's symptoms. There must be a strong likelihood that the radiological picture in front of us was going to cause symptoms. Remember that the ACC decision is purely based on Kevin's radiology. It takes no account of his history, symptoms and signs. With CAM morphology being so extremely common, and indeed evidence of impingement being so extremely common, we have no such grounds to conclude that Kevin was going to become symptomatic anyway. The radiological risk factors for FAI and the radiological evidence for impingement are common and are usually asymptomatic. Having FAI morphology does not automatically mean that the patient has FAI syndrome. FAI morphology does not represent an abnormality. 4 Summary: In summary, we have a 63 year old man functioning at a high level with no previous hip symptoms. We have a forceful mechanism of injury that is scientifically supported as being appropriate to damage both articular cartilage and the acetabular labrum of the hip joint. We have severe pain and loss of function consistent with structural damage to the joint. We have symptoms persisting a year later consistent with structural damage. FAI morphology is at the mild end of the spectrum and is extremely common amongst the New Zealand population. We have no grounds to conclude that Kevin was going to become symptomatic without the significant impact of his injury/ [52] I observe Dr Brick looked at the imaging films and accepted there was evidence of minor degenerative changes as age appropriate for an active man in his 60s, though CAP commented there is no agreed definition of minor. Dr Brick acknowledged the degenerative changes present were not wholly or substantially causative of the chondrolabral injury. [53] I take into account Mr Brick's own experience and practice, based on performing more than 2,000 hip arthroscopics. Dr Brick explained that a patient having done the splits, with damage confirmed at arthroscopy, the labrum can move centimetres rather than millimetres. He explained that the pattern is created by a forceful intrusion of the non-spherical head/neck junction into the spherical acetabulum. [54] I am satisfied that in Mr Price's case, Dr Brick has provided sufficient and adequate medical reasoning to support causation in this case. I take into account his specialist interest in hip conditions and considerable experience in interpreting imaging in respect to hip injuries. Dr Brick also goes further and considers the history, the temporal connection, and the forceful mechanism of injury as appropriate to damage of the articular cartilage and the acetabular labrum of the hip joint, together with severe pain, loss of function consistent with structural damage to the joint. [55] Although there is currently no cover for the chondrolabral injury, on balance, by a margin, I am satisfied this condition is causally linked to Mr Price's accident in February 2016 and should receive cover. Decision [56] For the foregoing reasons, I conclude that at the time the Corporation issued its decision it did not have a sufficient basis to suspend entitlements. The weight of the evidence that became available since the decision shows that Mr Price is entitled to receive cover for the chondrolabral injury that was caused by the accident in February 2016. [57] In consequence, the appeal is allowed. The review decision dated 1 November 2016 is quashed and the decision of the Corporation dated 24 May 2016 set aside. [58] Mr Price is also entitled to reasonable costs in the appeal, which I am confident the parties can agree. Duese Herare Judge Denese Henare District Court Judge Solicitors: Medico Law, Auckland for the respondent ACR 147-17-Price