09 Jul MINOR INJURY: It could take more than 26 weeks to recover
The new CTP scheme took force from 1 December 2017 and came about with the passing of the Motor Accident Injury Act 2017 (‘The Act’). Under this new scheme, those who have been injured must pass a ‘minor injury test’ to obtain benefits for more than 26 weeks, and to potentially have a feasible claim for common law damages.
This article will deal with the 26-week limitation of benefits awarded for minor injuries, and the steps towards resolving disputes to ultimately allow benefits past 26 weeks, for those who have sustained minor injuries. Under the new CTP Scheme, if you have been injured in a motor vehicle accident you will be entitled to receive the following benefits for the first six months:
Statutory benefits include:
- Weekly Payments (Wages),
- Medical and treatment expenses; and
- Domestic and personal care services.
While a 26-week recovery period may seem reasonable for one individual, it could completely undermine the extent of another individual’s minor injury and could slow down or completely eradicate the prospects of a full recovery. Before getting into the nuts and bolts of the 26 weeks recovery period, we must first understand minor physical or psychological injuries.
Minor Physical Injuries
Minor physical injuries are those injuries to the soft tissue of the body, such as injuries to the muscles. It is said that the most common soft tissue injury after a crash is a whiplash injury, resulting in neck pain.
Section 1.6(2) of the Act defines a minor physical injury as follows:
“A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds, other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Minor Psychological Injuries
Minor psychological or psychiatric injuries on the other hand, are changes in one’s mood associated with feelings of sadness, anxiety, fear, anger or guilt. Adjustment disorder and acute stress disorder are two psychiatric illnesses which are classified as minor. It is expected that individuals who suffer from such injuries will make a good recovery within a short period of time. Section 1.6(3) of the Act defines minor psychological injury as follows:
A minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.
Part 1 clause 4 (2) of the Motor Vehicle Injuries Regulation 2017:
2) Each of the following injuries is included as a minor psychological or psychiatric injury
- acute stress disorder
- 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).
There is a dispute about whether the injury is a minor injury under Schedule 2 section 2(e) of the Motor Accident Injuries Act 2017 (the Act).
Prior to the MVA
The claimant was noted to be:
- Living with their parents
- Completing occasional casual work when offered by friends
- Enjoying surfing, camping and socialising with friends
- Driving independently
The claimant had a history of taking Zyprexa (anti-psychotic medication), was in receipt of a disability pension and was guarded about identifying why they were receiving this.
- Increased anxiety and fear about being in cars as a passenger/driver, the claimant was advised to sit in a stationary vehicle by their psychologist however was unable to complete this task
- Nightmares about the MVA and recurring dreams about dying in the crash
- Flashbacks about the crash and increased arousal with irritability
- Poor sleep due to nightmares and an exaggerated startle response especially when in a vehicle
- Loss of contact with some friends, concentration problems and memory deficiency
Review of Documentation
A psychologist’s report completed months prior to the accident, identified a diagnosis of paranoid psychosis. Based on the presentation at the interview for assessment it is likely the claimant had a pre-existing paranoid psychotic disorder. This is confirmed with symptoms such as guarded history and concerns about “disagreements with people”. The psychologist identified no overtly psychotic symptoms such as delusions or hallucinations, however the report notes that the claimant is on anti-psychotic medication.
The Medical Assessor determined that the current presentation is more consistent with Posttraumatic Stress Disorder than a Paranoid Psychosis.
- Posttraumatic Stress Disorder
Posttraumatic Stress Disorder is a recognised psychiatric illness. The claimant did not have symptoms of the disorder prior to the MVA and the noted pre-existing paranoid symptoms have not been exacerbated by the MVA.
The following injury is not a minor injury
- Posttraumatic Stress Disorder
So, what happens when the 26-week mark is approaching? The insurer will provide notice that benefits past 26-weeks are denied as the injured party has not passed the ‘minor injury test’ for physical or psychological injuries. The insurer must rely on medical evidence when making its decision. If the insurer does not agree to fund reasonable and necessary treatment and care expenses past 26-weeks to assist the injured party to reach full recovery where it is warranted, then a dispute may be lodged with, and will be managed by, SIRA’s DRS Merit Review Service after a compulsory internal review is conducted by the insurer.
We know that minor injuries attract benefits which are limited to 26-weeks. However, the following circumstances allow for extensions under section 3.28 (3) of The Act:
- Medical Evidence that treatment will improve recovery
- The insurer delayed approval of treatment within the 26-week period, further delaying recovery
Section 3.28(3) of The Act reads:
“… statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person…”
With the new CTP scheme creating a world of complexities for injured persons and practitioners alike, it is now more than ever, that we must ensure the rights of injured persons, particularly those with a minor injury, are protected and preserved by challenging insurer’s decisions where it is appropriate to do so and where it is permitted by The Act.