1. Mr Saric was born in 1946 in Croatia and emigrated to Australia. He has worked as a builder and carpenter specialising in restoring and renovating heritage homes and building heritage home reproductions.
2. In September of 2005 Mr Saric was waiting to cross Sydney Road. He was looking carefully at traffic coming down the road. Unbeknownst to him, however, a Toyota Landcruiser was backing and therefore travelling in the opposite direction from the ordinary flow of traffic. It struck Mr Saric on his left-hand side. This knocked Mr Saric to the ground and aside from the impact to the left side of his body he suffered some injuries to the right side of his body as he was thrown to the ground.
3. Mr Saric was able to get up and he made his way to the nearest clinic which was being operated by a Dr Diamantaras. Dr Diamantaras took a history from Mr Saric which broadly recorded the events which I have described. According to a report provided by Dr Diamantaras on 3 November, that is, a couple of months after the event, Mr Saric had signs and symptoms of a left rotator cuff tear. He also had a soft tissue injury to his right knee. He had a right knee abrasion and small laceration to his left fourth digit.
4. Mr Saric made a claim for compensation under the Transport Accident Act 1986. The respondent, Transport Accident Commission, accepted liability for medical and like expenses. I have before me a review application by Mr Saric with respect to two of the Commission's determinations. One application relates to a refusal of physiotherapy treatment. The other relates to a determination of Mr Saric's permanent impairment under s.46A of the Transport Accident Act, which was fixed by the Commission as an eight percent of the whole person. This assessment was made on the basis of reports provided to the Commission by Mr Dooley, an orthopaedic surgeon, and Dr Ingram, a consultant psychiatrist.
5. Turning first to the issue of impairment, Mr Saric's case is that he should be found to have suffered a 19 percent whole person impairment. The significance of this percentage difference needs to be judged in light of the scheme of the Transport Accident Act which is that no benefit is payable for permanent impairment below 11 percent. The result then is that an impairment benefit is payable for accident victims who suffer permanent impairment of 11 percent or more at a rate calculated by reference to each percentage point. Accordingly, there would, on Mr Saric's evidence, be some eight scoring percentage points of impairment benefit if his case is accepted.
6. On the other hand, if the Commission's eight percent assessment stands no impairment benefit at all is payable. The Commission's assessment is made up as follows. Mr Dooley, the orthopaedic surgeon who saw Mr Saric for assessment on 20 March 2008 found a variety of restrictions in Mr Saric's left shoulder. He assessed those in accordance with the fourth edition of the Guides to the Assessment of Permanent Impairment published by the American Medical Association, at some 13 percent of the upper extremity. Or, as the rest of the world would say, of the arm. This converts to the eight percent whole person impairment.
7. As far as the psychiatric sequelae of the incident, Dr Ingram, who also assessed on 20 March 2008, found that Mr Saric suffers a five percent whole person impairment as a result of psychiatric factors. Section 46B of the Transport Accident Act, however, impinged upon the assessment of psychiatric impairment. It requires the Commission and this Tribunal on review to ignore for assessment purposes psychiatric impairment which is secondary to physical injury.
8. Dr Ingram concluded that of the five percent permanent impairment on psychiatric grounds which he found, four percent is related to frustration and depression suffered by Mr Saric as a result of the pain and restrictions imposed upon him by his physical injuries. In obedience to s.46B, the Commission had to put this four percent aside. The remaining one percent was found by the doctor to relate to anxiety on Mr Saric's part in relation to his wife's health. Mrs Saric suffers from breast cancer and has undergone surgery. Hence the ultimate result was that there was no whole person impairment allowable on psychiatric grounds for the purposes of the assessment, and the assessment remained at eight percent.
9. Mr Saric relies on the assessments of a surgeon, Mr Moran, who finds a 10 percent whole person impairment based on orthopaedic considerations. I should correct my reasons to record that Mr Moran is an orthopaedic surgeon. Dr Glaser, a psychiatrist, finds a 20 percent whole person impairment based on psychiatric issues, some 10 percent of which is to be ignored in obedience to s.46B. Application of the tables for combined impairment, as prescribed by the AMA Guides fourth edition, yields the 19 percent figure to which I made reference a moment ago.
10. The difference between the assessments on behalf of the Commission and those relied upon by Mr Saric lies in two matters. The first is that Mr Moran has allowed for some five percent whole person impairment relative to issues in connection with Mr Saric's left hip and left knee. These have not been allowed by Mr Dooley. Similarly, Dr Glaser has allowed for some 10 percent impairment based on Mr Saric's concerns relative to the aftermath of the accident: his re-experiencing of the accident by way of intrusive thoughts and dreams, his avoidance of the area, his apprehensions as he crosses the road, and so forth.
11. These matters - which, if you will, ultimately derive from what one might be described as the shock of the moment - stand in contrast to psychiatric problems which are secondary to physical injury. I turn first to the different between the two psychiatric experts.
12. Dr Ingram, who gave evidence and was subject to cross-examination by Mr Saric, who represented himself, said that whilst Mr Saric did make some reference to dreams and ruminations about the incident, they were not so significant as to be indicative of any psychiatric impairment on that basis.
13. Dr Ingram's interpretation of Mr Saric's emotional problems was that they were concentrated upon the effects of physical injuries which largely precluded him from continuing with his trade and business. His inability to work had both emotional effects because of a deprivation of the fulfilment that one finds in work, and also financial implications. Mr Saric tells me that he is now in a state of financial embarrassment and this preys on his mind. In his closing address, he produced a final notice from Yarra Valley Water threatening disconnection of water services if bills were not paid.
14. He says in his present situation, disabled from work, he is simply unable to pay those bills. Mr Saric told me that in the recession of the early 1990s he lost everything. He still to some degree suffers from the hangover of those events. In the years that followed, he re-established himself and now he has lost most of the effect of the re-establishing work of the later 1990s and the early 2000s by reason of his inability to keep working.
15. I asked Mr Saric what the matters were that preyed on his mind today. What were the things that worried him. He told me that it was his inability to work and the financial embarrassment which this imposed upon him. I asked him open questions along these lines on two occasions and he made no reference to ruminations on the incident of September 2000, avoidance behaviour, apprehensions about crossing the road. In my view, the more appropriate interpretation of whatever difficulties Mr Saric suffers from is that they focus on these matters which are secondary to physical injury and are excluded by s.46B.
16. It may be that both examiners have missed significant psychiatric issues in Mr Saric's life. It emerged from the paper chase, which the Transport Accident Commission customarily engages in in circumstances such as this, that in the period 1999 to 2000, Mr Saric was prescribed and took the antidepressant medication Aropax, indicating some psychiatric problems which were unconnected with this accident because they preceded it. They were also, it would seem, unconnected from his experiences in the early 1990s, having regard to the date on which they occurred.
17. I was also taken to an incident in which Mr Saric attended St Vincent's Hospital, suffering physical injury and complaining that he had been the victim of an assault by his wife. He told the doctors at the hospital that this was but the last of a series of incidents in which he had been assaulted by his wife; he was scared of his wife, he said. Other members of the family saw things differently and told the hospital staff that Mr Saric was merely the victim of a fall.
18. Needless to say, we cannot ascertain the truth or otherwise of the apprehension of the hospital registrar, who suggested a psychiatric referral, presumably on the basis that Mr Saric was suffering from some sort of delusional problem. Neither of the consultant psychiatrists who assessed him were aware of this history or managed to elicit anything of this type from the histories that they took.
19. This suggests, I think, that there are more matters at play in Mr Saric's psychiatric presentation than have really been assessed. On the other hand, it is difficult to see that, whatever these issues are, they can be regarded as deriving from the incident of September 2005 except in the secondary fashion that s.46B of the Transport Accident Act requires us to ignore. It follows, therefore, that I accept the assessment of Dr Ingram that Mr Saric suffers from no psychiatric impairment which is accident-related but not secondary to his physical injury.
20. I turn then to the orthopaedic issues. The difference between Mr Dooley on the one hand and Mr Moran on the other, as I have noted previously, is that Mr Moran has assessed a 5 percent whole person impairment, relative to issues in connection with the left hip and left knee. Dr Diamantaras, the treating general practitioner, took no history of any problems in the left knee or left hip at the time of initial presentation.
21. Mr Saric says that in describing his problems to Dr Diamantaras and to all other practitioners whom he has had consultations with, whether for medico-legal or treatment purposes, he stressed that he suffered problems throughout the left side of his body. It is conceivable that Dr Diamantaras did not fully appreciate what Mr Saric was saying, or that appreciating it, he simply failed to take an entirely accurate record of the history that he was being given.
22. However, if he failed adequately to appreciate the history he was receiving, he seems to have been in common with a raft of practitioners who saw and assessed or treated Mr Saric between September 2005 and May 2008. Those assessors include the two psychiatrists to whom I made reference a moment ago and Mr Dooley in March 2008. The numbers extend also to a Ms Cutland, a physiotherapist who provided physiotherapy treatment to Mr Saric's left shoulder and provided a report in August 2007, which refers solely to problems in the shoulder and makes no reference to the left leg, the left hip or the left knee.
23. Dr Diamantaras says that in May 2008 Mr Saric presented at his surgery with serious problems with his left leg. There was an apprehension that he might be suffering from some form of bursitis. This led to a number of referrals. Ultimately an MRI scan was carried out at the Mercy Private Hospital in Grey Street, East Melbourne.
24. The report from Dr Peter Smith as to the findings of that MRI are as follows:

High-grade injury to the hamstring origin with only the semimembranosus remaining attached to the bone. Prominent inflammation and fluid collection which extends medially and anteriorly between obturator internus and the ischial. Labral pathology with increased signal intensity and synovitis. A small area of chondral abnormality in the acetabulum.

1. Mr Saric said that when his condition took a turn for the worse in May 2008 and he sought specialist treatment, he encountered significant difficulties in finding a practitioner who would take him on. A number of practitioners said they did not want to be involved with insurance companies, presumably referring to the Transport Accident Commission; nevertheless, ultimately Mr Saric was able to obtain treatment from Mr Ishva Husseini, an orthopaedic surgeon.
2. Mr Husseini concluded that having regard to the age of the hamstring injury, which he summarised as being a hamstring avulsion of the left hip, surgical intervention was impossible and only conservative treatment could be carried out. This conservative treatment has left Mr Saric with significant disabilities, limitations in walking, instability in the hip, an inability to operate the clutch of the manual transmission truck which he used to use as part of his trade and so on.
3. The combined effect of the restrictions deriving from the injuries to his shoulder and to his left leg is to put him out of action. Both Dr Diamantaras and Mr Husseini, on the basis of the history provided to them by Mr Saric, treat the problems with the left leg as being part of the sequelae of the transport accident of September 2005. Likewise, Mr Moran, and he provided the assessment of 5 percent whole person impairment relative to these matters to which I made reference earlier.
4. Mr Dooley, the assessor on behalf of the Commission, however, rejects any such connection. I had the advantage of hearing viva voce evidence from Mr Dooley, but Mr Husseini could not be persuaded voluntarily to attend the tribunal to give evidence. Neither party took the step of issuing a subpoena against him, so I am left with his report but without the opportunity to explore the contentious issues with him by a process of question and answer.
5. The interpretation of events as accepted by Mr Moran, Mr Husseini and Dr Diamantaras derives, as their reports indicate, from the history given to them by Mr Saric. Mr Saric says that he suffered significant bruising on his left hip and whilst there was at the time immediately following the transport accident significant pain and restriction, he attributed these matters to the bruising and was therefore confident that they would resolve. Hence he did not immediately seek treatment for it. Indeed, he did not seek treatment for these matters until May 2008.
6. Mr Dooley's reasons for rejecting this interpretation are as follows. First, he draws attention to certain findings made by the MRI. In addition to the summary which I quoted, the MRI report records, inter alia, adjacent capsular oedema and synovitis. There was also a record in the conclusion which I quoted earlier of fluid collection. Mr Dooley said that the usual process of soft tissue injuries in general, and hamstring injuries in particular, is that they begin with acute pain and then move to a process of healing where the pain alleviates. It may not entirely resolve but it becomes less acute.
7. Moreover, fluid which has initially accumulated will ultimately be reabsorbed, hence a finding of fluid, as Mr Dooley sees it, is an indication of a recent injury; that is, an injury which was suffered in or about May 2008 rather than September 2005. More generally the history given by Mr Saric and Mr Dooley's interpretation is more consistent with an injury in or about May 2008 because the acute pain, which required treatment, occurred in May 2008 rather than in September 2005.
8. I accept the interpretation of Mr Dooley. The greater likelihood in my view is that this injury was suffered in or around May 2008. The hamstring injury is one that is caused by stretching, not by a simple impact. But of course, as Mr Dooley conceded, the twisting which the victim of a car impact might easily engage in could cause a hamstring injury such as occurred here. Nevertheless, the timing issues, the fluid, and the general course of injury as described by Mr Dooley, lead me to conclude that the hamstring injury is not accident-related.
9. This leads me therefore to accept the impairment assessment as for orthopaedic issues made by Mr Dooley in preference to the one made by Mr Moran. Accordingly, the Commission's assessment of permanent impairment is affirmed.
10. I turn then to the issue of physiotherapy. Mr Saric told me the physiotherapy had given some limited assistance to him but the relief which he has gained from it in the treatment he has had already has not been long-lasting. He says he acknowledges that what is ultimately more important is that he as the patient should carry on with the exercise regime prescribed for him by the therapist.
11. This concession might be thought in itself a reason to confirm the Commission's determination as to physiotherapy but there is the further issue adverted to by Ms Britbart, counsel for the Commission, that the physiotherapy which has been sought and denied is physiotherapy relevant to the problem with the left leg and left hip. The finding that those are not accident-related necessarily leads to the conclusion that the commission was right not to approve of that physiotherapy. Accordingly, both of the Commission's determinations are affirmed.