AAI Limited t/as AAMI v Frost

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as AAMI v Frost [2025] NSWPICMP 91
CLAIMANT:	Ryan Frost
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Jeremy Lum
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	17 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; claimant developed psychological symptoms following physical injuries from the motor accident; Medical Assessor diagnosed a specific phobia of driving as well as a persistent depressive disorder and assessed 15% whole person impairment (WPI); the Review Panel found that the claimant was anxious while driving but drove locally; the claimant also did not describe being depressed or having symptoms associated with depression; the Review Panel also considered other psychiatric diagnoses mentioned by the consultant psychiatrist and psychologist namely post-traumatic stress disorder (PTSD) and specific phobia of driving but did not find the symptoms described at those times to meet the respective criteria in the DSM-5; Held – the Review Panel found that the claimant suffered from an adjustment disorder with anxiety as a result of the motor accident which was assessed as 4% WPI; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of threshold injury Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated 27 August 2023 and issues a new certificate as follows: (a) The Review Panel certifies the following injuries were caused by the motor accident: (i) adjustment disorder with anxiety. (b) The Review Panel finds that the above injuries are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. CERTIFICATE OF DETERMINATION Review Panel assessment of permanent impairment Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Abhishek Nagesh dated 10 October 2024 and issues a new certificate as follows: (a) The Review Panel certifies the following injuries were caused by the motor accident: (i) adjustment disorder with anxiety. (b) The Review Panel finds that the above injuries result in a whole person impairment of 4% which is not greater than 10%.

STATEMENT OF REASONS

BACKGROUND

Ryan Frost (the claimant) was involved in a motor accident on 10 May 2022. He was driving in the right-hand lane of a multi-lane highway when a car in the left side lane merged into his lane hitting the passenger side of his car. The police and ambulance did not attend and the claimant drove his car home.
As a result of the accident, the claimant says he sustained injuries to his neck, left inside shoulder blade and lower back. Over the course of the next five to six months, he says he experienced flashbacks of the accident and was fearful of a motor accident every time he was in a car.
The claimant made a claim for statutory benefits with AAMI (the insurer), the third-party insurer of the vehicle that he says caused the accident.
Medical disputes arose about whether the claimant’s psychiatric injury caused by the motor accident:
· is a threshold or not a threshold injury, and
· gave rise to a permanent impairment of greater than 10%.
These medical disputes were referred to the Personal Injury Commission (Commission) for medical assessment.
On 27 August 2023, Medical Assessor Samson Roberts diagnosed the claimant’s psychiatric injury as persistent depressive disorder with anxious distress. This was found to be caused by the motor accident and was not a threshold injury.
On 10 October 2024, Medical Assessor Abhishek Nagesh diagnosed the claimant’s psychiatric injury as persistent depressive disorder and specific phobia. This was found to be caused by the motor accident and gave rise to a permanent impairment of 15% which is greater than 10%.
The insurer lodged applications with the Commission seeking reviews of both medical assessment decisions. Both were allowed by the President’s delegate and this Panel was convened to conduct the review.

RELEVANT LEGISLATION

Threshold injury

Under the Motor Accidents Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[1]
[1] The terminology for accidents that occurred before 1 April 2023 (such as the present) was “minor” injury and statutory benefits were only paid for up to 26 weeks.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 10 November 2023, applies to the review. Part 5 deals with the assessment of threshold injury for psychiatric injuries.
The general provisions for medical assessment are contained in cl 5.6 of the Guidelines and are in the following terms:
“5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Specifically, in relation to threshold psychological or psychiatric injury assessments, cls 5.10-5.12 provide as follows:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Permanent impairment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address by where they are silent on an issue, the AMA 4 Guides should be followed.

Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines. Specifically, the assessment of psychiatric impairment draws from the chapter “Mental and behavioural disorders” which commence at cl 6.201 of the Guidelines.

Causation of injury

It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychological or psychiatric condition. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [2]
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
The provisions state:
“6.5   An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following
1.     The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2.     The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Roberts – threshold injury

Medical Assessor Roberts noted that the claimant was a 41-year-old divorced man with a challenging pre-accident history of marital separation, domestic violence on the part of his partner and custody issues with his son. There were clinical notes of the claimant seeing a psychologist due to anxiety/adjustment disorder in the years prior to the motor accident. There was also a Mental Health Care Plan in February 2021 which stated that the claimant had custody of his son since 2018 and has suffered an “Adjustment Disorder with stress and anxious mood following recent move to Sydney from Port Macquarie”. A further Mental Health Care Plan in June 2022 refers to separation from the claimant’s most recent partner in April 2021.
In the medical dispute referral document, Medical Assessor Roberts was asked to consider whether the claimant has a post-traumatic stress disorder injury as a result of the motor accident.
Medical Assessor Roberts stated that notwithstanding the presence of trauma symptoms, the nature of the motor accident, being a low to moderate speed sideswiped event, cannot be construed to reflect a Criterion A trauma of the type described in DSM-5.
Rather, the presence of mood and anxiety symptoms reflected a condition of sufficient severity to meet the diagnostic threshold for persistent depressive disorder with anxious distress having regard for the protracted course of the symptoms.
As described above, Medical Assessor Roberts noted the psychiatric symptoms due to personal stressors predating the motor accident, but found “the history as presented by [the claimant] indicates that the motor accident contributed to the causation of the current psychiatric condition”.
Medical Assessor Roberts concluded that the diagnosis of persistent depressive disorder with anxious distress was caused by the motor accident and is not a threshold injury.

Medical Assessor Nagesh – permanent impairment

Medical Assessor Nagesh was asked to consider whether the claimant has a post-traumatic stress disorder and persistent depressive disorder as a result of the motor accident.
The claimant initially denied any history of mental illness. When the Medical Assessor brought to the claimant’s attention the previously diagnosed adjustment disorder and anxiety disorder in the context of the claimant’s custody battle, the claimant stated this was in remission at the time of the motor accident. This explanation was accepted by the Medical Assessor.
Medical Assessor Nagesh found that following the motor accident, the claimant developed depressed mood, insomnia, loss of appetite, lack of energy and motivation, diminished ability to concentrate, feelings of worthlessness in the context of his pain, and his inability to be active and lead a normal life. He also developed a marked fear and anxiety around driving. He avoids driving as much as possible.
Under the relevant DSM-5 criteria, the Medical Assessor diagnosed the claimant to have a specific phobia of driving. There was also pain and functional limitations which gave rise to a persistent depressive disorder. Both diagnoses were considered to be related to the motor accident. The Medical Assessor determined that the claimant’s permanent impairment was 15%.

ISSUES FOR DETERMINATION

Insurer’s submissions on threshold injury

In its original reply submissions dated 10 February 2023, the insurer disputed that the claimant sustained a psychiatric injury as a result of the motor accident. The insurer highlighted the claimant’s pre-accident psychiatric symptoms as outlined in R8. The insurer relied on A2, A14, R6 and R8. In the alternative, the insurer disputes any psychiatric injury is a non-threshold injury.
In its review application submissions, the insurer submitted to the President’s delegate that Medical Assessor Roberts’ assessment was incorrect in a material respect on the following grounds:
(a)    the Medical Assessor failed to take a comprehensive accurate history, including pre-accident history and pre-existing conditions;
(b)    the Medical Assessor erred in diagnosing persistent depressive disorder with anxious distress, and
(c)    the Medical Assessor erred in finding that the subject accident caused persistent depressive disorder with anxious distress.
The insurer says Medical Assessor Roberts outlined a comprehensive pre-accident history on page 3 of his report but failed however, to obtain a comprehensive history of the claimant’s pre-existing psychiatric symptoms and condition.
The insurer sets out the diagnostic criteria under the DSM-5 for persistent depressive disorder and asserts that the Medical Assessor failed to address or properly address Criterion A, C, D, E, F, G and H.
In relation to causation of the psychiatric diagnosis, the insurer reiterates that Criterion A cannot be satisfied because a diagnosis of persistent depressive disorder requires symptoms to be present for at least two years. Given the accident only occurred 14 months before the assessment, the accident cannot be said to have caused the diagnosis.
In addition, it is submitted that Medical Assessor Roberts failed to address various pre and post-accident clinical note entries detailing the claimant’s circumstances including:
Pre-accident clinical note entries
(a)    15 February 2021 Dr Matar – recorded that the claimant requested a psychology referral. Personal stressors regarding ex-partner and custody issues with his son issues impacted the claimant’s mood and sleeping.
(b)
19 February 2021 Dr Matar – at the claimant’s request, a MHCP dated

19 February 2021 diagnosed anxiety, depression and adjustment disorder, with issues with attention/concentration, mood, sleep, motivation/energy, anxiety. The flare up of anxiety and depression symptoms were said to be on the “background of previous separation from wife, caring for son and recent move to Sydney from Port Macquarie”. The insurer highlights that a similar diagnosis and symptoms were noted in the MHCP post-accident on 29 June 2022.
(c)    1 April 2021 Dr Matar – prescribed Diazepam.
(d)    26 May 2021 Dr Matar – history from claimant being under stress and wanting to see a psychologist. This was due to driving his son all the way to QLD to see his mother and she did not show up.
(e)    31 August 2021 Dr Matar – history from claimant wanting to see psychologist. Prescribed Diazepam. Current partner (Carly) stressing out with kids.
(f)    15 September 2021 Dr Doan – “MH wants to see Vee Jin Dumalo”. Referral of same date indicated claimant wished to work on issues regarding family and work stress.
(g)    23 September 2021 Dr Matar – Stress with son. Current Court proceedings regarding son’s mother. Child protection involved.
(h)    14 January 2022 Dr Doan – “Stress, headaches … Trying to drink less”.
(i)    14 March 2022 Dr Doan – Prescribed Diazepam (for anxiety).
Post accident clinical note entries
(a)    29 June 2022 Dr Matar, recorded:
“Attends for MHCP…
Relationship breakdown with Carly
He moved out in April
Not sure where he stands
Keen to reconcile
Alcohol excess, uses it to assist with sleep, pain, mood
Beer and bottle of red most nights
No motivation to do anything
Had MVA... loss of income added to stress
Cares for son, Cooper
History of DV with ex-wife, ongoing struggles.”
(b)    17 October 2022 – Ms Austin, psychologist, recorded “he was very teary on presentation. Discussed a feeling of overwhelm. Still not sleeping, Nil support to assist with son. Feeling overwhelmed driving to work as it is so far and employer causing him significant stress as he reported he has not been paid for some time? Still liaising with Fair Work?...”
(c)    24 October 2022 – Dr Lam – “Mental health not good … Unable to have nanny service to look after son, due to staffing issues. Not sleeping well. Older daughter, parents, brother, live in Macquarie.”
(d)    26 October 2022 – Dr Lam – “Had 2 doses of antidepressant… New job – security management… can start immediately… Does think of moving back to Port Macquarie where there [is] more family support.”
The insurer submits that Medical Assessor Roberts erred in accepting the history as presented by the claimant and finding that the motor accident contributed to the causation of the current psychiatric condition given that the history is at odds with the objective pre and post-accident clinical records.

Insurer’s submissions on permanent impairment

The insurer submits that the medical assessment is incorrect in the following respects:
(a)    the Medical Assessor erred in diagnosing persistent depressive disorder and specific phobia;
(b)    the Medical Assessor erred in accepting the claimant’s self-report that his previously diagnosed anxiety disorder was in remission at the time of the subject accident and in doing so, failed to review and evaluate all available evidence as required by cl 6.18 of the Guidelines, and
(c)    the Medical Assessor erred in his assessment of ‘Self Care and Personal Hygiene,’ ‘Social and Recreational Activities,’ ‘Travel’ and ‘Concentration, Persistence & Pace’.
The insurer sets out the DSM-5 criteria and submits that the Medical Assessor erred in his diagnoses.
The insurer details the pre-accident references in the clinical notes to marital difficulties, child custody issues and psychiatric symptoms that the insurer says are consistent with an anxiety disorder that was not in remission at the time of the motor accident.

Claimant’s submissions on threshold injury

The claimant’s original application submissions dated 18 January 2023 state that the claimant sustained psychological injury of persistent depressive disorder and post-traumatic stress disorder as a result of the motor accident. It is submitted the diagnosis was confirmed by Dr Bao-Tram Lam (general practitioner (GP)) and Ms Helen Austen (registered psychologist) with the latter also confirming the claimant fulfils the DSM-5 Criterion for such a diagnosis.

The claimant did not lodge a reply to the insurer’s review application.

Claimant’s submissions on permanent impairment

The claimant disputes the insurer’s submissions stating that the Medical Assessor was open to the psychiatric diagnoses made based on his training, expertise and experience. Further, the claimant says the Medical Assessor, having obtained a history from the claimant and reviewed all the material before him, was in a position to make his own determination to accept the claimant’s history that the previously diagnosed anxiety disorder was in remission at the time of the motor accident.
It is submitted that the claimant’s psychiatric injuries exceed the 10% whole person impairment threshold.

THE REVIEW

The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[4]
[4] Section 7.26(7) of the MAI Act.
A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the Personal Injury Commission Rules 2021.
As advised in Directions dated 13 December 2024, given the threshold injury and permanent impairment disputes have separate matter numbers and have been allocated to different original medical assessors (Medical Assessors Roberts and Nagesh), the Panel has issued two separate Panel certificates of determination – one for threshold injury (R-M10554599) and the other for permanent impairment (R-M23589/24). These are located at the front page of this decision. These reasons address both disputes.

REVIEW OF DOCUMENTATION

The Panel issued Directions in both threshold injury and permanent impairment disputes for the parties to provide indexed and paginated bundles of the information they relied upon. Both parties duly responded.
At the preliminary conference on 27 November 2024, the Panel determined that it required additional information from the parties in the form of the claimant’s GP records from 2014 onwards. The parties supplied the Panel with the records from Port Macquarie GPs for the date range 1 January 2014 to 7 January 2025.
The Panel has read the documentation with a summary provided in the below Panel re-examination report:
“PANEL RE-EXAMINATION REPORT
1. Who attended the assessment
Mr Frost was examined by video teleconference by Assessors Paul Friend and Wayne Mason. He attended alone.
HISTORY
2. Psychosocial history and pre-accident history
Mr Frost was born in Westmead Hospital. He and his family lived in Sydney but relocated to Port Macquarie when he was aged 7 years. He has a younger brother who is now aged 40 years.
He described life in Port Macquarie as good. He went fishing and swimming, and played sport, particularly baseball.
He completed school to the end of Year 12 and subsequently a retail traineeship.
He obtained his security licence and commenced working in the security industry. He initially did crowd control in pubs and clubs.
He was promoted to work in a manager or supervisor role running events and assisting in operating the company.
He later sold security equipment ‘up and down the Mid North Coast’.
He worked full time.
Mr Frost relocated to Sydney early in January 2021 to live with his new partner.
He relocated with his son who is now aged 13 years.
He obtained employment in security at The Sutherland Hospital. This involved shift work which made it difficult to care for his son.
He left that job after about six months and obtained employment with Australian Frontline Security Solutions.
He had various roles.
He was required to walk outside the football ground when the Cronulla Sharks rugby league team was playing at home in Sutherland. He did concierge type work at a block of apartments in Bondi where he was required to sit at a desk, accept packages, deliver packages and to do patrols of the front of shops which were downstairs. He was required to move on homeless people who might be sleeping outside the shops.
He worked 7.00am to 3.00pm Monday to Friday.
He could also be asked to work at a block of seven apartments in Pyrmont. This was mostly supervising removalists delivering and removing furniture to ensure they did not damage the building.
He was working at this job at the time of the motor accident.
He returned to that job after the motor accident but left, he believes in 2022, because he found the work too hard.
He obtained employment at MSS Security probably commencing work in December 2022. He worked at the Defence Force Base at Garden Island in the gatehouse.
After four months he was promoted to supervisor. This required him to monitor the security of the base and supervise 23 guards. He walked around the base, to check the performance of the guards and security of the base. He also sat at a computer where he did the rosters for the guards and read and replied to emails.
He worked in that role until the end of October 2023 and has not subsequently returned to work in any capacity.
The report by Zan Dean from MSS Security dated 22 May 2024 states that he had not worked since 1 November 2023.
Mr Frost has been receiving a Single Parents Pension, he believes for about the last 10 years.
He has been receiving payments from the insurance company since he ceased work at the end of October 2023.

Previous Medical History
Mr Frost had asthma which was controlled.
He had a fish hook caught under his left upper eyelid when he was about aged 15 years which was removed without difficulty.
He has had a colonoscopy.
He had not undergone any surgery prior to the motor accident, apart from that required to remove the fish hook.
The clinical records from Port Macquarie GPs from 11 May 2015 to 27 September 2021 contain the following.
He was prescribed Panadeine Forte from time to time for low back pain.
The entries dated 2 July 2015 and 16 July 2015 refer to him having social problems associated with the relationship breakdown and the Family Court. It states on 16 July that he has depression and anxiety and is consulting a psychologist. These entries were related to the ending of his marriage in about 2013 which will be described later.
He was involved in legal proceedings in the Family Court related to his then three-year-old son.
The entry dated 16 July 2016 states that his ex-wife was accusing him of domestic violence which appears to be fabricated and he had nightmares about being abused by her.
There were further references to difficulties with his ex-wife in August 2015 and in May 2016.
The entries from 2016 onwards were mostly regarding ‘non-specific back pain including on 2 September 2016.
The entry dated 16 February 2018 states he had twenty minutes of crushing chest pain while sitting on a couch.
Mr Frost remembered that event when asked. He subsequently had what appeared to be a CT angiogram and/or a CT scan derived calcium scan.
The entry dated 11 June 2019 stated he had abnormal liver function tests which is likely to be due to bingeing on alcohol five days each week, and recommends he cut down to two standard drinks.
Mr Frost could not specifically remember the heavy drinking, at that time.
His weight varied but on one occasion it appears he weighed about 98kg. He had one injection of Ozempic whilst he was living in Port Macquarie.
He reported that he weighed no more than 90kg and perhaps less and felt fit and well when he relocated to Sydney in 2021.
Mr Frost was asked about the entries in the clinical notes of the Engadine Medical Practice from the first entry dated 15 February 2021.
The entries included requesting a psychology referral on 15 February 2021 and repeated references to back pain and the prescription of Panadeine Forte, occasionally diazepam and at times Panadeine Extra.
Mr Frost could not specifically recall the timing of those events. He found it difficult to relocate to Sydney because he did not know anyone, except his partner. He believes there were “some issues” with the mother of his son.
Psychiatric/psychological symptoms were described occasionally. These did not interfere with his ability to play baseball or to work.
The diazepam that was prescribed appeared to be for the back pain rather than psychiatric symptoms.
These matters were put to Mr Frost. He could not specifically recall the events and responded that he believed that he was functioning well prior to the motor accident. He agreed that he had low back pain.
It was put to him that he was prescribed more Panadeine Forte and was taking Panadeine Extra compared to when he previously lived in Port Macquarie. He could not recall his use of these medications, at that time.
He confirmed that he was continuing to play baseball every weekend from the time of arriving in Sydney up until at least the time of the motor accident. He agreed that he needed to take Panadeine Forte and other medication for the low back pain, so that he could play baseball.
Mr Frost reported that he tried to return to playing baseball after the motor accident. He was taking Panadeine Forte and sometimes Endone to play. His doctor eventually told him that he could not continue to take these medications to play baseball. He believes that he played about five games of baseball after the motor accident.
The last reference to him playing baseball is in the Engadine Family Practice notes dated 26 June 2023 which states that he played baseball every weekend but recent shin splint injuries caused him to have two weeks off.
He was prescribed Panadeine Forte which he stated at the examination, that he took every 2-3 days for headache and back pain.
He took Endone about every three weeks for back and neck pain.
Mr Frost could provide a precise date of when he ceased playing baseball.
History of relationships
Mr Frost’s first significant relationship formed when he was aged 22 years. His partner was aged 19 years. His now 19-year- old daughter was born in that relationship. He was living in Port Macquarie. He believes that relationship lasted about five years and that it ended because they grew apart.
He had shared custody of his daughter when he lived in Port Macquarie.
His contact with his ex-partner was initially ‘a bit rocky’ but subsequently became amicable.
His ex-partner attended the Family Court with him in support, when he was seeking custody of his son.
His next relationship formed when he was aged 28 or 29 years, in Port Macquarie. He married at some stage. He cannot recall the date. His son was born in 2011. He separated in 2013 when his partner left and went to Western Australia. He described it as a ‘very up and down’ relationship. His partner left him with his son and two children aged about 8 and 6 years from a previous relationship.
His partner had told him that she would return to live with him. He relocated to live on the Gold Coast in June or July 2013 in anticipation of the relationship reforming. Her parents lived on the Gold Coast.
His partner never returned to the relationship. He returned to Port Macquarie in 2015.
He consulted a psychologist 4-5 times when he lived on the Gold Coast regarding the issues with his partner.
He received a letter from the father of the two other children in his care, when he lived on the Gold Coast. The letter requested that the children be returned to his care, which he did.
He stated that his ex-wife, from whom he was divorced in 2015, has six children from four fathers.
He around that time, in 2015, sought full time custody of his son. It took nearly five years in the Family Court to have that request granted.
His third relationship probably developed in 2019 or 2020. He stated that a mutual friend introduced them. She lived in Sydney and he was in Port Macquarie.
The relationship lasted about three years and ended in February 2022, or possibly 1-2 months later.
The relationship ended because they had ‘different ideas’ about living their lives. There was no violence or significant other adverse events.
The entry in the Engadine Medical Practice notes dated 29 June 2022 states that he was scheduled to consult a psychologist, Helen, on 1 July. His relationship had ended in April and he had moved out.
Mr Frost agreed that he had started consulting a psychologist at that stage and that it was related to issues regarding the ending of the relationship.
Mr Frost has not been in any subsequent relationships. He has continued to live with his now 13-year-old son.
Substance Use
Mr Frost is a non-smoker.
He currently consumes about one glass of wine every three nights with dinner.
He stated that he drank about three beers and nearly a bottle of wine about five nights each week for some time after the motor accident. He agreed that this was excessive alcohol consumption which he had subsequently reduced to the current level.
He has never used illegal substances.
He has a modest intake of caffeine in the form of one cup of coffee and a couple of glasses of cola drink each week.
3.   History of the motor accident
The motor accident occurred when Mr Frost was driving towards the city. He was in the right hand lane closest to the median strip. A vehicle came from the left and struck his vehicle around the area of the front passenger side door.
He was able to get out of his vehicle and talk to the other driver. He suggested that they should meet at the nearby service station, which they did. They exchanged details and he telephoned the police.
He subsequently drove to work but his boss or manager told him to go home.
He drove home. His vehicle was later towed and repaired. It was returned about four months later.
4.   History of symptoms and treatment following the motor accident
Mr Frost was off work for two months.
He had pain in the lower part of neck in the centre and on the right side. It sometimes radiated into his right scapula. The pain was attributed to a whiplash injury in the area of C5/6.
He had pain in the right side of his head which struck the driver’s side window. This injury has resolved.
He became anxious about driving, particularly about vehicles travelling on either side of his vehicle.
He tried to either sped up or slow down so that there were not vehicles on either side. He tried to drive in the right hand lane so at most there would be one vehicle on his left hand side.
He initially had nightmares almost every night about the motor accident or other fictitious motor accidents which sometimes included ‘gremlins’ or ‘monsters’ deliberately driving at him.
The nightmares initially occurred up to five times each night and could wake him from sleep. He sometimes could not get back to sleep.
He was sometimes woken by neck pain.
He sometimes woke from a nightmare with his heart pounding and feeling anxious. He took 1-2 diazepam tablets on those occasions.
He was prescribed amitriptyline, initially taking it in a dose of 50 mg at night but subsequently reduced to 25 mg at night because he felt lethargic the next day.
He has been prescribed melatonin for sleep and had taken two 5 mg tablets for the last12 months.
He was also prescribed Endone, Panadeine and Meloxicam.
He consulted a physiotherapist initially weekly which gradually reduced to once every two weeks.
He was referred to an exercise physiologist but felt that the physiotherapist was more effective. He had a lot of headaches after the motor accident and felt that the physiotherapist was better at loosening up the joints and reducing the headaches.
He was prescribed Zoloft, it appears initially on 30 November 2022 according to the Engadine Medical Practice notes. He ceased this medication, he believes in December 2022 or possibly January 2023.
The entry in the clinical notes of the Engadine Family Practice dated 30 June 2023 states that he ceased Sertraline a month ago.
He stated that he resumed taking Sertraline in 2024 initially 50mg daily. The dose was later increased to 100 mg daily. He continues to take the same dose.
He was referred to Helen Austen, psychologist, regarding the motor accident.
The Allied Health Recovery Request by Helen Austen dated 10 October 2022 states that his diagnosis is Adjustment Disorder with Anxiety. He has symptoms of poor sleep, waking every hour or two with nightmares and flashbacks, anxious mood, feeling uncertain, lacking confidence, as well as making errors at work with appointments.
He has irritability, nervousness, worrying and anxiety when driving and avoidance of activities, and chronic pain and anxiety.
The second Allied Health Recovery Request by Helen Austen dated 1 May 2024 lists the same diagnosis and symptoms.
Mr Frost agreed that there had been a gap between the two sets of appointments with Helen Austen.
Each Allied Health Recovery Request requested eight sessions of treatment.
He did not seek treatment from any other psychologist or from a psychiatrist, regarding the motor accident.
5.   Details of any relevant injuries or conditions sustained since the motor accident
Mr Frost stated that he had not been involved in any new motor accidents, not suffered any baseball injuries and not been exposed to any new traumatic events.
Various entries from the Engadine Medical Practice were put to him.
The entry dated 30 January 2023 states he was hit on the left side of his ribs whilst playing baseball and has pleuritic pain.
The entry dated 4 February 2023 states he injured his right knee sliding at baseball.
The entry dated 26 June 2023 states he had to cease baseball because of shin splint injuries.
Mr Frost could not specifically remember these events but did not disagree with them.
The entry dated 19 December 2023 states he had a bad week after witnessing a motor accident with two cars involved and one was airborne and they landed in someone’s backyard.
He pulled out the passengers, being the first on the scene, and subsequently had disrupted sleep, flashbacks and was using more oxycodone.
Mr Frost agreed that this occurred and had the described effect on him.
The two drivers were street racing. He stated that this brought back ‘issues’.
The entry subsequently stated that he was flying north to see his family.
He agreed, that two later, he flew to see his family, in Port Macquarie.
6.   Current symptoms
Mr Frost stated that his current physical symptoms are low energy and a sore stiff neck.
He has various psychiatric/psychological symptoms.
He continues to feel anxious whilst driving. On some days he can go out for a walk and, other days wants to stay in the house, feeling safer at home. Some days he does not want to drive.
He was asked why he did not want to drive some days. He replied that he had recently seen someone drive through a red light. He had subsequently caught up with this driver and told him he had driven through a red light. This incident bothered him for a week.
He has had other vehicles suddenly ‘pull out’ in front of him which upsets him.
He agreed that he continued to feel anxious when driving, watched on either side of him and tried to avoid having vehicles travelling beside him. He continued to try to either slow down or speed up so that there were no vehicles travelling on either side. He continued to prefer to drive in the right hand lane.
He has driven past the site of the motor accident on one occasion when he could not avoid doing so. He stated that he “hated it. He explained, when asked, that he felt very anxious. He has subsequently avoided the site of the motor accident. He feels that he will be involved in another motor accident at the same site.
He mostly drives with the radio turned off and without music playing, although sometimes will do so because it distracts him.
He feels more comfortable if he sits in the rear seat of his parents’ four-wheel drive vehicles in Port Macquarie. He does not drive those vehicles.
He travels by ride share vehicle if he has an appointment in the City. He sits in the back seat and has the driver take an alternative and longer route, to avoid the site of the motor accident.

7.   Current and proposed treatment
Mr Frost’s current medications for his physical injuries are Endone 2-3 tablets each week for severe neck pain, Panadeine Forte if his neck pain is not so bad, and Meloxicam for the headaches or if his neck has been sore for3-4 days. It can be two weeks between doses of Meloxicam.
He has what he refers to as ‘anxiety attacks’ wherein his heart is thumping, that it is difficult to breathe and he feels ‘worked up’. This can occur when he is driving or when he is in a large group of people such as occurred when he accompanied friends to the races at Port Macquarie. He described not feeling safe and that he did not have any personal space. It appeared that this was more a feeling of being “trapped’ because he was not able to move.
He takes two diazepam tablets during the night if he wakes up and cannot get back to sleep.
He takes 10mg of melatonin most nights unless he is very tired.
He takes amitriptyline 25mg every night.
CLINICAL EXAMINATION
8.   Mental state examination
Mr Frost was on time, alert and orientated and cooperative with the assessment. He was interviewed the Microsoft Teams application with a good internet connection. He was identified from his photograph on his NSW driver license. The interview commenced at 9 AM and concluded at 10:45 AM. He was neatly dressed and well presented. There was no evidence of depressed mood. His range of affective expression was full and appropriate. There were some difficulties with memory noted, but no difficulties with concentration throughout the interview. His speech was normal in rate form rhythm and prosody.
He described ongoing pain in his neck which could radiate into his right shoulder and down to his right scapula which developed following the motor accident. He has headaches from time to time and low back pain which was present prior to the motor accident.
He stated that his main physical symptoms are low energy and a sore stiff neck.
He is distressed if he sees someone driving in a hazardous or risky manner, including on one occasion a vehicle driving through a red light. Such events can cause him to stop driving for at least the following day.
He feels anxious when driving and tries to avoid having vehicles driving beside his vehicle by speeding up or slowing down. He tries to drive in the right-hand lane.
He has nightmares about the motor accident or fictious motor accidents on a couple of nights each week and can have repeated nightmares when they do occur. The nightmares wake him from and he sometimes cannot get back to sleep.
These nightmares might also be of fictitious accidents or of accidents involving gremlins or monsters who were driving deliberately at him.
9.   Current functioning
Mr Frost mostly he can get out of bed without difficulty but some days he does not want to get out of bed. This is usually when he is tired because he has woken up multiple times during the night. He will do very little on those days.
He makes his son’s lunch the night before. His son gets himself out of bed, makes his bed and gets himself off to school.
He mostly eats breakfast which can usually be a cup of coffee and a banana or a ‘shake’ and a banana. His appetite is variable.
His current weight is about 100kg. He believes that it was 90kg at the time of the motor accident.
He usually makes a sandwich for lunch or has a few crackers.
He mostly cooks meat and vegetables at night but occasionally will order takeaway food for home delivery.
He does the washing up which can be difficult because of the pain and he feels physically tired afterwards.
He cleans the house but does it over several days. For example, he will clean the bathroom one day which will take him two hours and maybe vacuum the floor a couple of days later.
He does the laundry, putting it in the washing machine and then drying it in the dryer.
He drives to purchase groceries in the local supermarket once or twice each week.
Mr Frost prior to the motor accident played baseball which when he moved to Sydney was all year round and he played every weekend.
He did not undertake any social activities apart from that activity.
He subsequently ceased playing baseball it appears in 2023 because of the ongoing pain.
He now helps coach his son at baseball. He now walks down to the local baseball field which is about 200 metres away when there is a home game to watch the game and to talk to people at the game.
He has friends who live in a neighbouring suburb whom he sees when he can. He now has friends in Sydney which he did not have when he first moved to Sydney.
Mr Frost can drive in the local area without difficulty.
He was driving to and from Garden Island when he worked for MSS Security but since ceasing that job he has restricted himself to driving in the local area. He takes a ride share vehicle if he needs to travel further afield.
He avoids, if possible travelling by train, feeling that he does not know who might get into the carriage.
Mr Frost was not in a relationship at the time of the motor accident and is still not in a relationship.
He has a good relationship with his parents whom he visits with his son in school holidays. His brother and his brother’s partner live in Hervey Bay and work in Western Australia. He talks to his brother every week.
He has friends whom he sees at baseball and at other times as described.
He has a good relationship with his 19-year-old daughter and an amicable relationship with her mother who both live in Port Macquarie.
He did not report loss of friendships or arguments with people following the motor accident.
He describes his thinking and concentration as ‘not as good’. He sometimes forgets what he is doing such as when he goes into a different room. He once brushed his teeth twice in five minutes because he had forgotten he had brushed them the first time.
He can forget what he wants to buy when he goes to the supermarket.
Mr Frost ceased work 1 November 2023.
He ceased work because he was falling asleep at work from his medication. He had pain at work and needed to take Endone from time to time. He stated that he had a few ‘flashbacks’ or memories of the motor accident whilst at work.
Pain was the main reason he ceased working.
10.Comments of consistency
Mr Frost was consistent throughout the examination. He sometimes could not recall events and could not comment on them, even when reminded.
11.Summary of relevant documentation
The insurer’s submissions dated 9 October 2023 states the assessor failed to take a comprehensive accurate history including pre-accident history and pre-existing conditions.
The assessor erred in diagnosing Persistent Depressive Disorder with Anxious Distress.
The assessor erred in finding the subject accident caused Persistent Depressive Disorder with Anxious Distress.
The diagnosis of Persistent Depressive Disorder with Anxious Distress requires for the depressed mood to be present for most of the day or more days than not for at least two years.
Assessor Roberts made an assessment 14 months after the motor accident which occurred on 10 May 2022.
The Personal Injury Certificate by Assessor Samson Roberts dated 27 August 2023 states that the diagnosis of Persistent Depressive Disorder with Anxious Distress is not a threshold injury for the purposes of the Act.
The motor accident occurred on 10 May 2022.
The psychosocial history and pre-accident history states that Mr Frost was in a relationship with the mother of his daughter for couple of years. She is currently in Year 12 and works in two jobs and lives in Port Macquarie.
He has remained involved with his daughter since the relationship ended.
He was in a relationship with his son’s mother for 8-9 years.
She has mental health issues and has six children to four men but does not have custody of any of the children.
His son’s mother kidnapped him when their relationship ended and subsequently through court he was assigned sole custody and parental responsibility.
The most recent relationship was of two years’ duration.
He made the decision to relocate to Sydney to live with her but that relationship failed.
He remained in Sydney for the employment opportunities but has found it socially challenging although previously he had no difficulty making or maintaining friendships.
The relationship ended because his most recent partner’s children did not like sharing their mother or having Mr Frost and his son in their home.
The motor accident occurred when he was driving in the right hand lane. A vehicle entered from the left, entered his lane and collided with the passenger door.
He stopped, exchanged details with the other driver and drove on to work but as he was in pain he was sent home and drove himself home.
He had severe flashbacks every time he was in the vehicle and was fearful of a further motor accident.
He would have images of the vehicle coming towards him and dreams of the motor accident which persisted until October or November.
He consulted a psychologist twice weekly for a prolonged period of time and was prescribed Sertraline 50mg.
He was off work for six weeks because of his physical symptoms and returned to light duties.
He currently has headaches but the pain has improved.
On bad days he experiences low mood and anxiety and has a lack of energy and motivation.
He cannot do some activities because of his physical condition. He has always been very physical.
He has poor sleep because of pain and bad dreams.
He is prone to frustration which affects his ability to engage socially. He has variable level of confidence and some days does not want to interact with others.
He is anxious when driving and fearful if traffic is travelling next to him. He sits his son in the back and is extremely vigilant when driving. He worries about his son and his mother. He feels more fragile. He is prone to blaming himself if things go wrong. Some days he is so exhausted he cannot help his son with his homework.
The Personal Injury Commission Certificate of Assessor Alan Home dated
1 May 2023 states the following injuries caused by the motor accident:
Cervical spine – soft tissue injury, aggravation of pre-existing condition.
Thoracic spine – referred musculoligamentous pain.
Left shoulder – restricted motion secondary to muscular guarding arising from the cervical spine injury
Is a threshold injury for the purposes of the Act.
The Certificate of Capacity/Certificate of Fitness regarding the motor accident on 10 May 2022 dated 7 November 2022, lists the injuries as whiplash injury from motor vehicle accident on the way to work.
The email from the psychologist Helen Austen dated 23 November 2022 lists the symptoms as meeting the criteria for PTSD.
These include upsetting memories, flashbacks and dreams of the car accident, withdrawal from all social activities and driving.
He feels physically and psychologically distressed when driving, has panic attacks whilst driving and pulls over to the side of the road.
He has negative beliefs about himself and the world and is persistently negative and angry.
He has less interest in socialisation and feels cut off from others.
He had trouble feeling positive emotions, has difficulty sleeping because of bad dreams and difficulty falling asleep.
He is easily angered or irritated and has trouble concentrating.
The clinical notes of the psychologist Helen Austen include the following entries.
The entry dated 11 October 2022 lists the symptoms as feeling sad, hopeless and not enjoying things and frequent crying.
He is worrying or anxious, nervous and jittery and stressed.
He has trouble sleeping, a poor appetite and difficulty concentrating.
He feels overwhelmed and has difficulty functioning in daily activities.
The provisional diagnosis is Adjustment Disorder with Anxiety and Depression.
The clinical notes from the Engadine Medical Practice from 15 February 2021 to 26 March 2022 contain the following entries.
The entry dated 15 February 2021 states he has recently moved from Port Macquarie and is engaged to his partner.
He previously consulted a psychologist in Queensland due to anxiety/adjustment disorder years ago.
He had gone to Port Macquarie and separated from his wife in 2015 when his son was aged two years.
He cared for his son full time as well as his ex-partner’s two other children to different fathers. His ex-partner moved to Western Australia leaving the children with him.
He left work to care for all the children.
His ex-wife returned and kidnapped his son and he did not see or hear from him for 11 weeks.
He subsequently has sole custody of his son but worries about his son’s wellbeing when he has court ordered visits with his mother who is now in Queensland.
He has worked in security for 15 years and is currently looking for employment.
His mood is up and down, he has difficulty sleeping and he wakes multiple times overnight. He feels anxious about his son.
He drinks four or more times each week, typically one or two drinks, and six drinks on one occasion less than monthly.
His level of distress on the Kessler Psychological Distress Scale is 21, indicating probable distress.
The entry dated 1 April 2021 states he requested a prescription for Panadeine Forte. He used this for headache and longstanding back pain but there is no specific history of injury and he has previously had physiotherapy consultations.
He was prescribed 50 Valium about 2½ years ago.
He has not had Panadeine Forte for three months.
The entry dated 26 May 2021 states he has done shiftwork as a security guard and has reduced his alcohol to two beers three to four times each week. He has more frequent headaches.
He has been stressed re Cooper’s custody recently. He drove all the way to Queensland for Cooper to see his mother and she did not arrive.
He has been taking Panadeine Forte for back pain and migraine. He wants to see a psychologist.
He was prescribed Panadeine Forte.
The entry dated 2 August 2021 states he has migraines, neck and back pain, apparently jarring his neck or back. He was prescribed Panadeine Forte.
The entry dated 31 August 2021 states he has a lot of pain, is taking lots of Panadeine. His headaches are less severe.
He wants to talk to a psychologist about COVID, Cooper and mum, Carly and the kids. Carly is stressed out with the kids.
He was prescribed Panadeine Forte and diazepam 5mg. He was in addition taking Panadeine.
The entry dated 18 October 2021 states he wants more Panadeine Forte and Panadeine Extra and was advised he needs to see his usual general practitioner.
The entry dated 19 October 2021 states he is taking two to four tablets daily, apparently of Panadeine Forte. He currently manages a security company.
He was prescribed Panadeine Forte and Panadeine Extra.
The entry dated 15 November 2021 states he played baseball and collided with another person and is now sore all over, including his neck and back.
He has headaches. He spends all day at a computer.
He was prescribed Panadeine Forte, Panadeine Extra and Mobic.
The entry dated 14 December 2021 states he needs more pain relief. He has pain in his neck and back. He has headaches and is struggling to walk.
He was prescribed Panadeine Forte and Panadeine Extra.
The entry dated 14 January 2022 states he wants a prescription because of stress, headaches and sore neck.
He was trying to drink less.
He was prescribed Panadeine Forte and Panadeine Extra.
The entry dated 24 January 2022 states he dislocated his right fifth digit at the knuckle. A nurse onsite at baseball, reduced it. He now has full range of movement.
The entry dated 8 February 2022 states that he has consulted a hand physiotherapist who thought he had a tendon injury and he is now wearing a splint.
He was prescribed Panadeine Forte and Panadeine Extra.
The entry dated 23 February 2022 shows he was prescribed Panadeine Forte and Panadeine Extra.
The entry dated 14 March 2022 states he has back pain. He was prescribed Panadeine Forte, Panadeine Extra and diazepam 5mg tablets.
The entry dated 30 March 2022 states he is making a claim for the baseball injury.
He has back pain. He was referred to an exercise physiologist.
He was prescribed Panadeine Forte and Panadeine Extra and Mobic.
The entry dated 6 April 2022 states he has ongoing neck pain and has tried Panadeine Forte. He was prescribed Endone 5mg up to two twice daily.
The entry dated 20 April 2022 states that the CT scan showed no major findings. It states driving, standing and walking can trigger it and it is likely he has MSK. He takes an average of three Panadeine Extra and two Panadeine Forte and one to two Endone.
The diagnosis was neck pain with radiculopathy.
He was prescribed Panadeine Forte, Endone and Panadeine Extra.
The entry dated 11 May 2022 states he had a motor accident on his way to work, hit from the left side. He has left sided neck pain and pain in the left shoulder. The vehicle needed to be towed.
He was prescribed Endone 5mg up to one twice daily.
The entry dated 23 May 2022 states he still has severe neck pain and mild back pain and took Panadeine Forte last night. He is having physiotherapy two to three times each week.
There is a history of chronic low back pain and right sided neck pain.
He has had a job interview. His diagnosis is whiplash pain. He was prescribed Zaldiar 37.5/325 one to two three times daily as required. (Zaldiar is a combination of tramadol and paracetamol.)
The entry dated 31 May 2022 states he has persistent neck pain radiating down the right side of his back. It states the Panadeine Forte is better than tramadol.
He was prescribed tramadol 50mg twice daily, Panadeine Forte and amitriptyline 25mg.
The entry dated 20 June 2022 states he takes occasional Endone 2.5mg. He takes Panadeine Forte in the morning and tramadol twice daily. The pain is worse in the morning and evening.
The entry dated 29 June 2022 states first appointment with his attending psychologist Helen was 1 July.
The relationship with Carly ended and he moved out in April. He is keen to reconcile.
He drinks a beer and a bottle of red wine most nights to assist with sleep, pain and mood.
He does not have motivation to do anything.
He had a motor accident resulting in whiplash, had time off work and has had a loss of income which has added to his stress.
The entry dated 5 September 2022 states his neck pain is worse. He is waiting for his new job. He uses Panadeine Forte one daily with work.
Baseball starts soon and he will be playing and coaching.
He is having more nightmares re the accident.
He was prescribed amitriptyline, tramadol and Panadeine Forte.
The entry dated 24 October 2022 states his mental health is not good. He is seeing Helen, psychologist,.
He is unable to have a nanny service to look after his son due to staffing issues. He was prescribed Sertraline 50mg one daily.
He did not see the psychologist in 2021 because he was unable to get an appointment.
He consulted a psychologist in 2015 in the context of a relationship breakup.
The entry dated 26 October 2022 states there was a telephone consultation with a psychologist who was concerned re the risk of causing a problem at work with heightened anxiety and recommends a further week off work.
The entry dated 7 November 2022 includes prescription for Panadeine Forte.
The entry dated 30 November 2022 includes prescriptions for Sertraline 50mg, Panadeine Forte.
The entry dated 30 January 2023 states he has been in his new job for two months. He was hit with a ball on the left side of the ribs while playing baseball and has pleuritic pain. His neck pain flared up with a flight to Hervey Bay.
He is using Panadeine Forte for headaches.
He was prescribed Panadeine Forte.
The entry dated 7 March 2023 states the rib pain is better but his neck has been more painful in the last two weeks. He takes Panadeine Forte daily for two weeks. It states he is trying to get WorkCover extended so he can do more physiotherapy. He is taking prednisone for acute attacks of gout, thirty tablets since 10 February.
The entry dated 8 March 2023 includes a prescription for Panadeine Forte.
The entry dated 4 April 2023 states he injured his right knee in baseball sliding with his knee flexed.

There was a previous injury twenty years ago waterskiing which was diagnosed as a medial cruciate ligament injury.
The entry dated 9 May 2023 states his neck pain is worse during cold weather. He manages it with hot showers, paracetamol, ibuprofen and Panadeine Forte and oxycodone PRN.
He was prescribed Endone 5mg 1/2 -1 three times daily, Panadeine Forte and amitriptyline.
The entry dated 26 June 2023 states he takes Panadeine Forte every two to three days for headache and back pain and Endone every three weeks for back pain and neck pain.
He plays baseball every weekend but recent shin splint injuries caused him to have two weeks off work.
He was prescribed Endone and Panadeine Forte.
The entry dated 31 October 2023 states he is working with MSS Security for one year. There have been stressful incidents of dealing with rude people which can affect him for a few days afterwards.
It is a struggle to get up to go to work each morning and he would rather be on holidays. He is not currently playing sport.
He consulted the psychologist last Thursday and will be reviewed in one month.
He was prescribed Endone 5mg ½-1 up to three times daily and Panadeine Forte.
The entry dated 19 December 2023 states he had a bad week after witnessing a bad motor accident with two cars involved. One was airborne. They each landed in someone’s backyard. This occurred on 13 December 2023. He pulled the passengers out and subsequently had disrupted sleep, flashbacks and is using more oxycodone.
He will be flying north to see his family in two weeks. He plans to look for a new job in the New Year with better hours so he can look after his son.
He was prescribed Panadeine Forte and Endone 5mg.
The entry dated 22 January 2024 includes a prescription for Endone, Panadeine Forte and amitriptyline.
The entry dated 27 February 2024 states he is still off work. He has used one dose of oxycodone and two doses of Panadeine Forte since the last visit. A new WorkCover Certificate was issued.
The entry dated 12 March 2024 states he had bad headache and facial pain last week for week with poor sleep and using more analgesics.
His current job is as a security officer at the Navy Defence Base.
He was prescribed Endone and Panadeine Forte.
The entry dated 26 March 2024 states he may consider moving back to Port Macquarie for parental support. He is not back at work.
The report by Kyle Pearce, physiotherapist, dated 21 May 2022
, states he presented with left sided neck and shoulder pain following a motor accident on

10 May 2022. There was increased left neck pain with rotation and difficulty lifting his left shoulder. His main complaint is stiffness in his lower cervical region.
The report by Kyle Pearce, physiotherapist, dated 3 June 2022 states he has attended twice weekly and his neck pain is improving and cervical and shoulder range of movement is much improved.
The report by Kyle Pearce, physiotherapist, dated 26 October 2022 states his neck pain has started to flare up in response to stress with his employment. His neck is at its best when warm or following the completion of his home exercises and gym program.
The report by Lauren Heneghan, physiotherapist and exercise physiologist, dated 25 January 2024, states he presented for exercise physiology service on 10 January.
He was involved in a motor accident on 10 May 2022 causing whiplash injury.
He has been attending regular physiotherapy and has now transferred to exercise physiology.
He has chronic neck pain and his current certificate states he has no capacity to work.
The report by Helen Austen, psychologist, dated 8 August 2024, states Mr Frost has been diagnosed with Adjustment Disorder with Anxiety but on review appears to reach criterion for Post Traumatic Stress Disorder due to chronicity.
His symptoms are poor sleep, waking every hour or two with nightmares and flashbacks, intrusive thoughts, avoidance of situations, heightened reactivity stimuli particularly while driving, and anxious mood.
He has depressed mood, social isolation, agitation, irritability, fear and mistrust.
He has loss of interest in activities, is uncertain, lacking in confidence, makes errors and forgets appointments.
He has heightened irritability, nervousness, worrying, avoidance of activities and chronic pain and anxiety.
The clinical notes from Port Macquarie GPs from 11 May 2015 to
27 September 2021 include the following.
The listed medication includes Panadeine Forte one tablet up to four times daily as required.
The listed prescriptions include the following:
11 May 2015 – Diazepam 2mg one to three in the evening.
2 September 2016 – Panadeine Forte one tablet up to four times daily.
21 May 2019 – Panadeine Forte one tablet up to four times daily.
4 September 2019 – Panadeine Extra one tablet up to four times daily.
11 November 2019 – Panadeine Forte one tablet up to four times daily.
28 January 2020 – Panadeine Forte one tablet up to four times daily.
3 August 2020 – Panadeine Forte one tablet up to four times daily.
The entry dated 11 May 2015 states he developed low back pain after a 900km drive after putting his son in the car yesterday.
He took diazepam 5mg and Panadeine Forte. He had previous back pain a year ago.
The entry dated 2 July 2015 states he wants a referral to a counsellor. He has lots of social problems associated with relationship breakdown and Family Court.
The entry dated 16 July 2015 states he has depression and anxiety. He was seeing a psychologist which was going well then failed.
His wife left to go to Western Australia. He has ongoing stress from his wife and court case re custody.
He quit his job more than one year. He has self-harm thoughts when his wife first left but not now.
He is currently working.
He presented regarding the relationship issue involving Family Court proceedings and guardianship of his three-year-old son Cooper. His mother has taken Cooper and kept him.
Melissa left him with his son and two stepchildren went off to Western Australia and was having an affair.
He describes her as physically violent, having fluctuating emotions and repeatedly threatening self-harm.
She fabricates stories for the police and court about being abused by Mr Frost.
She creates conflict and alienation from others and there have been AVOs against her.
She controlled him and did not allow social contact and telephoned or visited his employment to destabilise his employment.
He has a previous relationship and has a ten-year-old daughter but that ended mutually.
His first partner is concerned that he may have abused their daughter during contact visits.
His ex-partner Melissa is currently living in Queensland with a man and with Cooper. Two other children live with their father.
Melissa is still accusing Ryan of domestic violence which again appears to be fabricated. She has a Queensland Court AVO against Ryan which he now has to defend although it appears false.
The Queensland Police refused to issue an AVO saying Melissa looked to be making clearly false claims.
He has nightmares about Melissa and being abused by her. He feels he cannot enter a relationship because he does not trust himself not to make the same mistake.
He is unsure of himself.
The entry dated 20 August 2015 states he now has custody of his son. He joined a gym but realised after two days that he was seeing people who knew his ex-partner Melissa.
The entry dated 25 August 2015 states he still experiences a lot of issues around custody and reported false accusations of domestic violence by his ex-partner in Queensland.
There are hearings regarding the AVO in early October and a full hearing in 2016.
He feels stressed and manipulated.
The entry dated 12 May 2016 states the court case in Queensland re custody has been ongoing since April 2015. His son lives with him part time. He is working but feels very stressed and often has to travel to Queensland.
The entry dated 2 September 2016 states he has non-specific back pain which has been a problem for years in the thoracolumbar area. It is worse with standing and the job at Coles. He uses Panadeine semi-regularly.
The entry dated 19 December 2016 states he has custody of his son. It states he has been ordered to consult a psychologist to assist with anger management strategies and to assist with communicating with the mother.
He has no previous mental health conditions. It states he has a Health Care Card.
The entry dated 11 April 2017 states he is tired, working two jobs, looking after his son and drives to Queensland to take his son to see his mother. He has had headaches for three days.
The entry dated 8 May 2017 states an MRI showed chondromalacia of the patellar cartilage. He hurt his knee playing baseball and played again on Sunday and his knee hurt to run.
The entry dated 6 September 2017 states his father has been flown to St Vincents Hospital for an operation due to tracheotomy complications.
He can’t go to work because he needs to care for his son.
He was hit on the shin by a baseball on Sunday.
His mood is up and down and at times he feels down, stressed and has disturbed sleep.
He has not consulted a psychologist locally and has never taken antidepressant medication.
The entry dated 16 February 2018 states he had twenty minutes of crushing chest pain at 10.00am whilst sitting on the couch not related to activity. It states this has been ongoing on and off since October last year. He sometimes wakes with palpitations.
He had intense training for footy last Sunday without symptoms.
He wakes up three nights in a month with his morning symptoms, apparently referring to his asthma getting worse.
He has a stressful family situation which is likely to last three to four months.
The entry dated 21 May 2019 states he has lower back pain which is worse when standing still and has no pain when playing baseball.
The entry dated 11 June 2019 states he has abnormal liver function tests which is likely due to bingeing on alcohol five days each week. He should cut down to two standard drinks.
The entry dated 4 September 2019 states he has a very sore neck. He has consulted a physiotherapist and is taking Voltaren and Panadol which is not helpful.
He is asking for stronger pain relief. He has been taking Panadol Extra and Panadol.
He has had headaches on and off for the past month, some not bad, others are bad migraines. He had migraines for 11-15 years regularly with vomiting.
The clinical notes from Coomera City Medical Centre from 21 August 2014 to
6 May 2015 include the following entries.
The entry dated 21 August 2014 states he needs to see a psychologist. He has had a marriage breakdown and is caring for three children, only one of which is his own as he has adopted two of her children.
He is on a pension. His partner had an affair and now lives in Western Australia. His partner wants to file for divorce.
The entry dated 6 March 2015 states his wife had an affair and took off last year. He has three children, two of hers from another partner and one of hers from him.
The children from another partner went to their father. Last Sunday she took her son back. He is trying to get his son returned.
The insurer’s submissions regarding the review of the Personal Injury Commission Certificate by Assessor Abhishek Nagesh dated 10 October 2024 states the assessor erred in diagnosing Persistent Depressive Disorder and Specific Phobia.
The assessor erred in accepting the claimant’s self-report that his previously diagnosed anxiety was in remission at the time of the subject accident and in doing so failed to review all the available evidence.
The assessor erred in his assessment of self care and personal hygiene, social and recreational activities, travel, and concentration persistence and pace.
The Personal Injury Commission Certificate by Assessor Abhishek Nagesh dated 10 October 2024 states the injuries in the motor accident give rise to a permanent impairment of
15 % which is greater than 10 p% for Persistent Depressive Disorder and Specific Phobia.
He, prior to the motor accident, was single and life was fine. He was active and social and played baseball. He had no difficulty caring for himself and no anxiety about social events.
He had no impairment of his ability to drive and travelled to unfamiliar places.
He denied any history of mental illness. He was reminded about the custody matter with his ex-wife, but stated at the time of the accident he had not experienced any anxiety or depressive symptoms.
He relied heavily on alcohol to manage his anxiety and depressive symptoms, drinking up to a bottle of wine and a few beers each day.
He, in the last couple of months, had reduced his alcohol intake and now rarely drank.
His medications were Endone 5mg, amitriptyline 25mg and Panadeine Forte two to four per day, Sertraline 100mg, melatonin 10m and Meloxicam 15mg.
The motor accident occurred he was driving along Princes Highway in the right hand lane. A person in the left hand lane changed lanes and collided with his vehicle.
His vehicle got into the median strip and bounced off. The airbags did not deploy.
His vehicle was repaired after five months.
He was able to self-extricate and exchange information. He returned home the same day.
The next day he was in severe pain and presented to his GP who performed x-rays and scans. He was diagnosed with a whiplash injury and a bulging disc C5/6, right shoulder soft tissue injury.
He is anxious and fearful of driving after the motor accident and worried about having another motor accident, and ceased driving for almost a month.
He was in severe pain and was not active and his mood became depressed and he was not able to sleep.
He had fluctuating appetite, lacked energy and motivation and his ability to concentrate was diminished and he felt worthless.
His general practitioner prescribed Sertraline and medication for insomnia.
His current symptoms have not improved and include depressed mood, insomnia, fluctuating appetite, lack of energy and motivation, diminished ability to concentrate and feelings of worthlessness.
He is anxious and fearful of travelling and driving a motor vehicle.
He worries about being involved in a subsequent motor accident.
He tries to avoid driving as much as possible.
He is currently consulting a psychologist and taking Sertraline.
Assessor Nagesh assigns a whole person impairment of 15 %, assigning Class 2 to Self Care and Personal Hygiene, Travel, Social Functioning, and Class 3 to the remaining categories.
The Allied Health Recovery Request by Lauren Austen dated 1 May 2024
states the provisional diagnosis is Adjustment Disorder with Anxiety. It states he is diagnosed with whiplash following the motor accident.

The symptoms are very poor sleep, waking every hour or two with nightmares and flashbacks, anxious mood, uncertain, lacking confidence, and making at errors at work with appointments.
He has heightened irritability, nervousness, worrying, anxiety while driving, avoidance of activities and chronic pain and anxiety related to this.
The Certificate of Capacity/Certificate of Fitness dated 27 September 2023 states the injuries in the motor accident on 10 May 2022 were whiplash injury from a motor vehicle accident on the way to work.
This is the same diagnosis in the Certificate of Capacity/Certificate of Fitness dated 13 February 2024.
The Allied Health Recovery Request by Helen Austen is the first request dated 10 October 2022 and lists the same symptoms and diagnosis as the second Allied Health Recovery Request dated 1 May 2024.
The Allied Health Recovery Request dated 10 October 2022 requests approval for eight sessions at fortnightly intervals.
The Allied Health Recovery Request dated 1 May 2024 requests approval for eight sessions.
The report by Dr James G Bodel, orthopaedic surgeon, dated 12 October 2023 regarding the motor accident on 10 May 2022 states he has musculoligamentous injury to the neck and right shoulder and interscapular region of the thoracic spine as a result of the motor accident.
The report by Dr James G Bodel dated 12 October 2023 assigns a whole person impairment of 11 % for the injuries to the cervicothoracic spine and right shoulder.
There was no deduction for pre-existing impairment which was in the lower back. This was unrelated to the motor accident although it may have been temporarily aggravated by the motor accident.
The report by Dr Nicholas Argyle, psychiatrist, dated 14 November 2023, states the motor accident on 10 May 2022 occurred when a car veered into his lane from the left, causing him injuries to the neck, lower back and left shoulder.
He was able to drive home but saw his GP the next day and was given analgesics for neck pain.
The GP also noted increased use of alcohol and referred him to a psychologist.
His current symptoms are sleeping 3-5 hours each night with nightmares every night and sleep reduced mainly because of anxiety rather than pain.
He is very anxious when out of the house, easily triggered and feels very anxious when driving whereas he was previously confident with driving.
He avoids driving longer distances and avoids driving on weekends so he is unable to do much with his son. He will often have to stop while making a journey home from work.
He has vivid flashbacks during the day.
His mood is variable and he finds it difficult to enjoy life and is fatigued and nods off during the day.
He is preoccupied with the situation and has a loss of functioning and intrusive memories of the motor accident.
He has at least mild headaches most days, about once each week, but has more severe migraine-like headaches for which he has to lie down for two hours.
He has a diagnosis of PTSD and neck pain which both arise from the motor accident. There is no pre-existing injuries.
The report by Dr Nicholas Argyle, psychiatrist, dated 14 November 2023 states he has a diagnosis of Posttraumatic Stress Disorder and Major Depressive Disorder.
Dr Argyle assigns a whole person impairment of 16 % including 1 % for the effect of treatment of sleep.
He assigns Class 1 to Self Care and Personal Hygiene, Class 2 to Travel and Social Functioning, Class 3 to Social and Recreational Activities, Concentration Persistence and Pace and Class 4 to Employment.
The Certificate by Dr Bao-Tran Tram Lam states that Mr Frost is unfit to work until 1 March 2024. It states he has an episode of flareup of pain in his neck and headache as a result of a past whiplash injury in May 2022.
He is fit for a gradual return to duties from now with expected full time duties from

1 March 2024. He needs pain medications as required and exercises from the physiotherapist and exercise physiologist.
It states he will be able to do all the required work duties including driving a vehicle up to one kilometre, screening and walk through standing and squatting, working as a site supervisor in aviation and working up to forty hours per week.
The subsequent Certificate which is only partially visible appears to state that the employee will never be able to return to full duties without restrictions on duties or hours. He is not able to work up to fifty hours or twelve hour shifts.
The report by Zan Dean, Business Manager from MSS Security dated
22 May 2024, states the treating doctor’s certificate dated 19 March 2024 regarding your extended absence from duties states you will never be able to return to duties without restrictions and never able to work twelve hour shifts.
You stated in your pre-placement health checklist that your whiplash injury had fully recovered by 18 August 2022. (Mr Frost was asked why he stated that he had fully recovered. He replied that he wanted the job.)
Your absence has exceeded your leave entitlements as well as the three months grace period without pay granted to changes to an employee’s medical condition.
Your current leave without pay period ends on 31 May 2024. You have not worked since 1 November 2023 approaching seven months absence.
There are no vacancies that will meet your current medical requirements as all require 12 hour shifts and shift commencements significantly earlier than 8.00am.

It requests a written response by 5.00pm 29 May as to why your employment with MSS Security should not be terminated.
The report by Zan Dean, MSS Security, dated 3 June 2024, states MSS Security has made the decision to terminate your employment as we cannot determine a return to work pathway within a reasonable timeframe. As such you are unable to fulfil the requirements of your position.
DETERMINATIONS
12.Diagnosis and reasons
The Panel considered all the available information including the supplied documents and Mr Frost’s account.
The Panel determined that Mr Frost had some symptoms of Posttraumatic Stress Disorder such as nightmares and avoidance of the site of the motor accident, but felt that the accident itself was not of an intensity to meet Criterion A which requires a life threatening or potentially life-threatening accident.
The Panel also considered the diagnoses of the claimant’s treating psychologist, Ms Helen Austen, who changed her initial diagnosis of Adjustment Disorder in October 2022 and again on May 2024 to Posttraumatic Stress Disorder in her report dated

8 August 2024. The Panel noted that the reason behind the change in diagnosis was expressed as being ‘…due to chronicity and symptoms reported’. The listed symptoms and chronicity of same, however, in the Panel’s view, do not meet the requirements of Criterion A.
The Panel was of the same view after consideration of Dr Argyle’s report of 14 November 2023. While Dr Argyle made a diagnosis of posttraumatic stress disorder, there was nothing in the report that referred to the satisfaction of Criterion A in the DSM-5.
The Panel determined Mr Frost did not reach criterion for the condition of a Panic Disorder, because he did not describe sufficient symptoms to reach criterion for this condition.
The Panel determined that he did not reach criterion for a Specific Phobia of Driving, because although he was anxious when driving, he drove locally and avoided driving, usually for no more than one day, after seeing someone drive in a risk or hazardous manner.
The Panel determined that he did not reach criterion for the diagnoses of Persistent Depressive Disorder or Major Depressive Disorder
The Panel noted the diagnosis of Persistent Depressive Order made by Assessors Roberts and Nagesh and the diagnosis of Major Depressive Disorder made by

Dr Nicholas Argyle.
The claimant described various symptoms including feeling anxious when driving, avoiding the site of the motor accident and not driving on some days.
He was distressed if he saw other drivers driving in a reckless or dangerous manner.
He avoided driving with vehicles on either side of him.
He mostly drove in the local area and travelled by ride share vehicle if travelling further afield, especially into the city.
He did not as such describe being depressed or having symptoms associated with depression.
The Panel determined that he reached criterion for a diagnosis of an Adjustment Disorder with Anxiety. He is anxious when driving, but can drive in the local area and previously drove to and from the Defence Force Base at Garden Island. He avoided the site of the motor accident. He sat in the back seat when being driven. He had recuring memories of the motor accident, nightmares of the motor accident and other fictitious motor accidents.
He took medication each night to help with sleep and sometimes to get back to sleep after a nightmare.
These symptoms did not reach criterion for another mental disorder or an exacerbation of pre-existing mental disorder and were not normal bereavement.
Mr Frost did not describe any depressive symptoms.
13.Causation and reasons
Mr Frost prior to the motor accident did have some symptoms of anxiety and depression recorded at various times but prior to the motor accident from 2021 onwards was working full time in Sydney. He was living with his then partner although that ended perhaps about April 2022, but ended amicably. He cared for his son. Her was working in security.
He was playing baseball each weekend.
There was no impairment of his day to day or occupational functioning.
He has not been involved in any subsequent motor accidents. He has had exposure to incidents on the road which have caused transient distress which usually lasted one day and one occasion for a week.
There is no other subsequent event that would explain the symptoms and the diagnosis of an Adjustment Disorder with Anxiety.
Summary of injuries referred by the parties
14.The following injuries WERE caused by the motor accident:
· Adjustment Disorder with Anxiety.

15.Threshold injury
Section 1.6(1) of the Act states that:
‘For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.’
Section 1.6(3) of the Act sates:
‘A Threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.’
Part 1 clause 4 (2) of the Regulation states:
‘2) Each of the following injuries is included as a threshold psychological or psychiatric injury for the purposes of the Act
a) acute stress disorder
b) adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5)’
The condition of Adjustment Disorder with Anxiety is an Adjustment Disorder and therefore is a threshold injury.
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
16.The following injuries are threshold injury:
· Adjustment Disorder with Anxiety.
Current Whole Person Impairment
The Review Panel has also been asked to assess whole person impairment.

Diagnosis

· Adjustment Disorder with Anxiety.

Treatment

· Treatment with Sertraline.

· Treatment with Melatonin.

· Treatment with amitriptyline.

· Treatment by a psychologist

AREA OF FUNCTION	CLASS	REASON FOR DECISION
Self Care and Personal Hygiene	1	No impairment. Mr Frost lives with his son. He can do the grocery shopping and does the cleaning. Sometimes he does not want to get up because he is tired and on those days when he does get up he will do very little. He is otherwise able to shower, shave and get dressed. He occasionally relies on takeaway food.
Social and Recreational Activities	1	No impairment. Mr Frost has stopped playing baseball because of pain but as noted he has friends that he visits, will walk up to see a baseball match at the local baseball field when they are playing at home, helps with coaching his son’s baseball team and talks to people when he goes to a baseball match. He has more friends now than he had when he first moved to Sydney.
Travel	2	Mild impairment. Mr Frost can drive in the local area but further afield he needs to take a ride share vehicle. He feels anxious when driving and avoids the site of the motor accident.
Social Functioning	1	No impairment. Mr Frost has good relationships with his parents, his brother, the mother of his daughter, his daughter, as well as other friends in the local area and people he sees at baseball matches.
Concentration, Persistence and Pace	2	Mild impairment. Mr Frost reports being somewhat forgetful, sometimes forgetting what he wants to do and what he wants to buy at the local shops including the supermarket.
Adaptation	2	Mild impairment. Mr Frost struggled at work because of pain and tiredness. He in part attributed the tiredness to the effect of the melatonin and amitriptyline to treat his psychiatric symptoms. He ceased work by 1 November 2023 principally because of pain and the need to take medication for pain at work, and also because he could feel anxious at work as stated previously.
List classes in ascending order: 1, 1, 1, 2, 2, 2
Median Class Value: 1.5 = 2
Aggregate score: 9
Whole Person Impairment: 4 %

Apportionment
Mr Frost had no prior impairment of his daily functioning despite perhaps having some difficulty with his ex-wife.
He has subsequently witnessed some traumatic events on the road which has found upsetting but these had a transient effect.
There has been no subsequent event that has had an ongoing effect on his psychiatric/psychological symptoms and daily functioning.
There is no need to do a pre or post accident apportionment.
Effect of Treatment
Mr Frost has been treated with medication and by a psychologist.
There is no evidence that this treatment has improved his day to day functioning.
No allowance is made for the effect of treatment.
Sertraline was ceased in either late 2022 or early 2023. It was resumed sometime in 2024. There was no obvious detrimental effect whilst Mr Frost was abstinent of sertraline.
No allowance is made for the effect of treatment.
Current whole person impairment   4 %
Apportionment   0 %
Effect of treatment  0 %
Final whole person impairment   4 %”

CONCLUSION

The Panel concludes that the claimant’s injury caused by the motor accident is not a threshold injury. The certificate issued by Medical Assessor Samson Roberts dated

27 August 2023 is therefore revoked.
The claimant’s whole person impairment as a result of the motor accident is 4% and is not greater than 10%. The Panel therefore revokes the certificate of Medical Assessor Abhishek Nagesh dated 10 October 2024.
New certificates are issued at the front of the Panel’s determination.

[2025] NSWPICMP 91

17 February 2025