The new CTP scheme took force from 1 December 2017 and came about with the passing of the Motor Accident Injuries Act 2017 (‘the Act’). Under the new scheme, injured people could access statutory benefits without needing to establish fault. These changes aimed to provide fair and tailored outcomes, as well as timely support for injured people during their recovery.
This article will explore the meaning and importance of statutory benefits and delve into the new changes that have been introduced that victims of motor vehicle accidents should be aware of, especially if you were injured in a motor vehicle accident on or after 1 April 2023.
So, what are statutory benefits and why are they important for me?
Statutory benefits are a type of insurance coverage that provides compensation to individuals who suffer injuries in motor vehicle accident claims. These benefits ensure that victims of accidents receive necessary financial assistance for medical expenses, loss of income, care support and rehabilitation regardless of who was at fault for the accident.
Generally, statutory benefits include:
Initially, those who were injured in motor vehicle accidents could only be entitled to statutory benefits for a period of up to 26 weeks. To continue receiving benefits for more than 26 weeks, injured people had to pass a ‘minor injury’ test (now called ‘threshold’ injury) and to potentially have a feasible claim for common law damages.
In November 2022, important changes regarding statutory benefits were introduced under the Motor Accident Injuries Amendment Bill 2022, providing extended benefits for those injured in motor vehicle accidents from 1 April 2023 onwards.
Under these new changes, the 26-week period was extended to 52 weeks. This means that if you are injured in a motor vehicle accident on or after 1 April 2023, you are entitled to statutory benefits for up to a period of 52 weeks, regardless of whether you were at fault of the accident.
Why is this good news for you? The new changes:
So, to summarise the new changes:
IF YOUR ACCIDENT HAPPENED BEFORE 1 APRIL 2023
IF YOUR ACCIDENT HAPPENED AFTER 1 APRIL 2023
It still remains the case that after the 26-week or 52-week period, the insurance company can stop paying statutory benefits if you are considered to be wholly or mostly at fault for causing the motor vehicle accident or if your injuries are deemed ‘threshold’ injuries. The meaning of the term threshold will be carefully examined in another article, which can be found here.
If the insurance company has stopped paying your statutory benefits and you wish to dispute this decision, or if you wish to talk to an experienced personal injury solicitor regarding a claim or potential claim, please do not hesitate to reach out to our experienced team at Trump Lawyers who will hear you out, assess your claim and discuss the next steps forward.
When a statutory benefits claim is lodged under the NSW CTP scheme, the insurance company will always end up making a decision on whether or not your injury is determined to be a threshold (minor) injury. The threshold injury test is important because it is the gateway to continual statutory benefits and common law damages.
If you are injured in a motor vehicle accident in NSW, you should be familiar with the nature and meaning of threshold injuries. This article will help you understand the process.
RECENT CHANGES TO THE LAW
Under the Motor Accident Injuries Act 2017 (‘the Act’), those who have been injured must pass a “threshold injury” test to obtain benefits for more than 52 weeks, and to potentially have a feasible claim for common law damages.
If you are familiar with the CTP scheme, you may have never heard of the word “threshold” before and may be asking what it means. We previously discussed in our article here the statutory benefits and recent changes to the law which extend the period of statutory benefits that motor accident victims are entitled to, from 26 weeks to 52 weeks (if your accident occurs on or after 1 April 2023). The law also introduced changes to the word “minor injury”. “Minor” was changed to the word “threshold” after a review that the term “minor” down played injuries and its impact on an injured person, and that using this term may cause unnecessary distress. So, for the rest of this article, we will be using the correct term – threshold injury.
DEFINING THRESHOLD INJURIES: PHYSICAL THRESHOLD INJURIES
Under the Motor Accident Injuries Act 2017 (‘the Act’), threshold physical injuries are injures to the soft tissue of the body. Section 1.6(2) of the Act defines a threshold physical injury:
“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.”
This may include strains, sprains, contusions, or lacerations. It is said that the most common soft tissue injury after a crash is a whiplash injury, resulting in neck pain, and muscle strains.
Threshold injury is further defined in clause 4(1) of the Motor Accident Injuries Regulation 2017 (‘the Regulations’), to include:
“An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
In short, experiencing symptoms such as numbness, weakness or tingling in your spine (for example, your neck or back) does not necessarily mean that your injury is more than a threshold injury. If your symptoms do not meet the criteria for radiculopathy, then the injury will be found to be as a threshold injury. However, this assessment is best left to a qualified medical practitioner and not the insurance company.
Examples of injuries that are not threshold injuries include:
PSYCHOLOGICAL THRESHOLD INJURIES
Threshold 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 threshold injuries. It is expected that individuals who suffer from such injuries will make a good recovery within a short period of time. Section 1.6(1)(b) of the Act defines threshold psychological injury as follows:
“A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Clause 4(2) of the Regulations states the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a) acute stress disorder,
(b) adjustment disorder.”
The newly extension of payment of statutory benefits from 26 to 52 weeks can be beneficial for injured victims who experience delayed onset of injuries, especially psychological injuries. For example, you may be diagnosed with initial Acute Stress Reaction (‘ASR’) following a motor vehicle accident, which has developed into an adjustment disorder (‘AD’) with anxiety. For the purposes of the Act and Regulations, this is considered a threshold injury. However, overtime, your symptoms may persist and become more severe. It may be the case then that, overtime, depending on the medical evidence and opinion of your treating doctors, you fulfil the diagnostic criteria for Post Traumatic Stress Disorder (‘PTSD’), which is not a threshold injury.
If you were injured in a motor vehicle accident on or after 1 April 2023, the insurance company will provide you with notice within 9 months of your claim. This liability notice will determine whether you are considered wholly or mostly at fault of the accident and whether the injuries you sustained are threshold injuries. The insurance company must rely on medical evidence when making its decision about threshold injuries.
If the insurer declines your statutory benefits claim on the basis that you have sustained a threshold injury, then depending on the circumstances of your case, a dispute may be lodged with the Personal Injury Commission and will be managed by the Commission after a compulsory internal review is conducted by the insurer.
As mentioned earlier in this article, the threshold injury gateway test is absolutely crucial for injured people. If the insurer considers that you have sustained threshold injuries, then your statutory benefits will end after 52 weeks and you will not be entitled to lodge a claim for common law damages.
If you are issued with this notice, you must take immediate action and seek legal advice if you have not already done so. Our expert team at Trump Lawyers will review your case and assist you with the following:
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 threshold injuries, are protected and preserved by challenging insurer’s decisions where it is appropriate to do so and where it is permitted by the Act.
Video and communications technology in today’s day and age are widely accessible and easy to use. In personal injury claims, video surveillance is now used to assist insurance companies in their assessment and investigations of claims, to confirm or dispute allegations of injuries and restricted functions. They do this by recording you undertaking usual activities of daily living. This may take you by surprise. While some raise concerns of privacy, video surveillance is lawful. But why do insurance companies do it and how is it regulated?
Video surveillance in motor vehicle accident claims is addressed under Sections 4.139 to 4.146 of the Motor Accident Guidelines (‘MAG’), which regulates the way insurance companies can record you. Although an insurance company is at liberty to undertake surveillance footage during the process of a motor vehicle accident claim, certain measures are in place that ensure this is done appropriately and reasonably. For example, the MAG sets a particular standard:
Recently, on 8 April 2022, the MAG was updated to provide protections for Claimants with mental health conditions. Section 4.146 states that an insurance company can only conduct surveillance of a Claimant only if they have clearly identified any mental health condition in the request for surveillance and have developed a risk management plan to minimise harm to the Claimant’s mental health condition.
Video surveillance in workers compensation and public liability claims are not governed by any legislation or regulations. However, at common law, depending on the circumstances of each claim, a court’s interpretation of surveillance footage is approached in an “extremely cautious” manner. This was discussed in Asim v Penrose & Anor  NSWCA 366, where Tobias JA noted:
“It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence.”
Member Mr John Wynyard of the Personal Injury Commission observed in David v Global Logistics – Toll People  NSWPIC 38, at para 86:
“The interpretation of the movements of people being filmed whilst under surveillance is necessarily subjective.”
While this may sound promising, it is also very important to consider that video surveillance can potentially damage a claim and greatly reduce or in some cases entirely prevent an award for compensation if a Claimant is being seen on raw footage, showing greater capacity and functions than they have previously stated in evidence. This is why it is important to be honest and truthful from the very start of your claim regarding your personal circumstances, your injuries and level of disability.
Diana Joseph Solicitor P: 02 9724 2549
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If we take on your claim, it means we believe in your claim and we will be fully dedicated to it to the extent that we are willing to invest in it. This alone should give you a lot of comfort when dealing with us and you can be assured that your claim will have our full commitment. After all, if you lose, we lose and if you win, we win, and nobody likes to lose.
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If you decide to engage us in a claim for compensation, we will set out the terms of our engagement in a legal document named Costs Agreement which will explicitly state that our costs and disbursements are only payable on the successful completion of your claim.
If you enter into a No Win, No Fee arrangement with us, your obligations are:
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:
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 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 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
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:
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.
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
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:
“… 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.
Life Insurance products include: Life (Death Cover) – if the insured dies, a lump sum is paid to beneficiaries or the insured’s closest living relatives; Total Permanent Disablement (TPD Cover) – if the insured is unable to return to work in an occupation within their qualifications and experience, a lump sum is paid to the insured; Critical Illness / Trauma Insurance Cover – if the insured is diagnosed with serious covered illnesses or suffer serious physical covered injuries (for example the loss of the use of two hands), a lump sum is paid to the insured; Income Protection (IP Cover) – if the insured is totally or partially unable to perform important duties of their occupation due to injury or illness, a monthly benefit is paid to the insured for a set period of time which could range from months to 5 years or to age 60.
Life, TPD and IP insurance usually form part of superannuation accounts.
These insurances can also be purchased directly from an insurance provider. Critical Illness / Trauma Insurance is usually purchased directly from a provider.
If you stopped working due to injury or illness recently or many years ago, you might have insurance cover in your super that you were unaware of. Further, if you were a member of multiple superannuation funds, you may be able to make multiple claims.
If loved ones have died, they might have had Death Cover in their super or directly with an insurer.
If you believe an insured met or meets the requirements to claim life insurance benefits and need assistance with claiming, contact us to discuss your rights.
We will investigate your insurance cover at the time the requirements were met (death of a relative, ceased all work due to injury or illness, became totally or partially disabled to perform important duties of occupation, diagnosed with a serious illness or suffered serious physical loss) for free and if insurance cover is found and your circumstances allow you to claim, we offer to represent you on a ‘No Win, No Fee, Fixed Fee’ basis to save you from paying Upfront Fees and allowing you to know from the beginning, what our costs will be – only if – the claim(s) is/are successful.
Dealing with these types of claims and with insurers can be overwhelming and sometimes intimidating; knowing where you legally stand can make the difference in getting your claim approved and paid.
If your claim has been declined by an insurer or superfund, we can review the reasons for their denial and advise you how to overturn their decision on a ‘No Win, No Fee, Fixed Fee’ basis.
We are a specliased law firm based in Sydney NSW and can assist you with your superannuation claim. contact us today on 1300 594 872 or make an inquiry below.
Construction of s 39 WCA – Workers are entitled to payments for the period between the discontinuation and resumption of payments after an assessment by an AMS
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Furthern Education Commission t/as TAFE NSW  NSWCA 113 – White & Brereton JJA & Simpson AJA – 17/06/2020
In Hochbaum v RSM Building Services the Court set aside the orders made by President Phillips on 18/04/2019 be set aside, dismissed the appeal against the decision of the Senior Arbitrator and reinstated the Senior Arbitrator’s COD dated 7/01/2019. By consent, no costs order was made.
In Whitton v Technical and Further Education Commission t/as TAFE NSW the Court set aside the orders made by President Phillips on 17/06/2019, dismissed the appeal against the decision of the Senior Arbitrator and resintated the Senior Arbitrator’s COD dated 7/01/2019. It also ordered the respondent pay the appellant’s costs.
The Headnote reads as follows:
The appellants were two workers who were injured in the course of their respective employment. Each made a claim for compensation, and was in receipt of weekly compensation payments, prior to the introduction of the new workers compensation regime introduced in 2012. The 2012 amendments replaced s 39(1) of the (NSW) Workers Compensation Act 1987 (“the 1987 Act”), which now provides that a worker has no entitlement to weekly payments of compensation after an aggregate period of 260 weeks, whether or not consecutive, in respect of which a weekly payment has been paid or is payable. However, s 39(2) provides that the section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Pursuant to the commencement of the legislative regime, the respondents’ insurers ceased paying weekly payments to the appellants with effect from 26 December 2017, being 260 weeks after 1 January 2013. Subsequently, the appellants were assessed as having a degree of permanent impairment resulting from their relevant work injury in excess of 20%. Weekly payments were resumed with effect from the date of the assessment; however, liability to make payments in respect of the period between 26 December 2017 and the date of the assessment was disputed.
In each case, an arbitrator held that the worker was entitled to weekly payments for the disputed period, but both decisions were overturned on appeal by the President of the Workers Compensation Commission, who held that the effect of s 39(2) was to displace s 39(1) only from the date when the worker was assessed to have a degree of permanent impairment resulting from the injury of more than 20%. The applicants, being aggrieved by the decisions of the President of the Commission in point of law, appealed from that holding, as of right, to this Court. The Court found there were two main limbs underlying the President’s decision (which formed the two primary issues considered on appeal); first, that assessment is a precondition to liability given the words of s 39(3); and secondly, that s 39(2) has a temporal aspect as it operates on the state of affairs that obtains at the relevant date.
Held, allowing the appeal:
On the proper construction of s 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed: at , .
By incorporating Pt 7 of Ch 7 of the (NSW) Workplace Injury Management and Workers Compensation Act 1998, through s 65 of the 1987 Act, the words “to be assessed” in s 39(3) provide the methodology and process by which impairment is to be measured and any dispute about its existence or extent resolved; the words do not mandate that there must have been an assessment before s 39(2) is engaged: at , , , , , .
The date on which an impairment threshold is crossed is not a relevant consideration in any question arising under s 39 of the 1987 Act, and the only relevant question is, what degree of permanent impairment has resulted from the worker’s injury. For the purposes of s 39, while impairment may improve or deteriorate over time, or not be established until long after the injury, it is the final degree of permanent impairment that results from an injury that is determinative of whether the worker is in the exempt class. There can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency: at -.
The degree of permanent impairment ultimately ascertained does not necessarily arise from the date of the worker’s injury. In some cases the worker’s degree of permanent impairment will date from the injury; but in others the ultimately assessed degree of permanent impairment would have been occasioned by later events, such as adverse results of surgery or psychological sequelae, that did not exist earlier: at , , , .
It is necessary to go no further than the text of s 39 to resolve the present dispute. Nothing in any of the three subsections of s 39 states, explicitly or implicitly, that removal of the subs (1) bar is dependent upon the date of the assessment of the degree of permanent impairment as distinct from the existence of the degree of permanent impairment. The language of subs (2) points in the opposite direction: the foundation for the removal of the subs (1) bar lies in the existence of a degree of permanent impairment exceeding 20%. Subsection (3) does no more than specify the mechanism by which the degree of permanent impairment is to be assessed; nothing in subs (3) suggests that an assessment may only be prospective. If it were necessary to go beyond the text of s 39, resort to principles of statutory construction would support the same approach: at -.
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