Motor Vehicle Accidents Archives

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:

Weekly Income Payments (Wages) if you are an earner and off work;
Medical and treatment expenses; and
Domestic and personal care services.

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 for the accident.

Why is this good news for you? The new changes:

Expedite and extend the delivery of financial assistance to injured victims without needing to establish fault,
Ensure injured victims receive timely support,
Extend support to injured victims during their recovery period,
Protect victims who may experience delayed onset injuries, for example, digestive system injuries due to excessive intake of pain killer medication or psychological injuries,
Work to make the motor vehicle accident compensation system more accessible and efficient for injured victims.

So, to summarise the new changes:

IF YOUR ACCIDENT HAPPENED BEFORE 1 APRIL 2023

Statutory benefits for a period of up to 26 weeks regardless of whether or not you are considered at fault for the accident.
The insurer must issue their ‘Liability Notice – benefits after 26 weeks’ within 3 months after you make a claim for statutory benefits.

IF YOUR ACCIDENT HAPPENED AFTER 1 APRIL 2023

Statutory benefits for a period of up to 52 weeks regardless of whether or not you are considered at fault for the accident.
The insurer must issue their ‘Liability Notice – benefits after 52 weeks’ within 9 months after you make a claim for statutory benefits.

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:

Fractures,
Nerve injuries,
Complete or partial rupture of a tendon, cartilage, meniscus or ligament,
Damage to the spinal nerve root that meets the criteria for radiculopathy.
- For example, you may have pinched a nerve as a result of the accident in the lower back which leads to severe pain, numbness and weakness radiating down one or both legs from the lower back, or to your neck, which leads to severe pain, numbness or weakness that radiates into the chest or arm.

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.

THE PROCESS

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:

Gathering all the medical evidence,
Reviewing all the medical evidence,
Obtaining further medical evidence, for example from your general practitioner or treating specialist,
Preparing submissions in support of your claim,
Lodging a threshold injury dispute in the Personal Injury Commission.

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?

Motor Vehicle Accident Claims

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:

Surveillance occurs only when there is sufficient evidence that indicates exaggeration during a claim or that there is misleading information in a claim, or
The insurance company must reasonably believe that the claim is inconsistent or contrary to any information or evidence in their possession
Surveillance must only be done in public places. The insurance company or the investigator cannot engage in acts of “inducement, entrapment or trespass”.

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.

Workers Compensation and PUBLIC LIABILITY CLAIMS

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 [2010] 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 [2022] 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.

The promise of no win, no fee applies to all claims where compensation is being claimed for damage or harm caused by a third party.

The services for which we don’t charge unless we win are:

Engaging Trump Lawyers on a No Win, No Fee Basis

If you decide to engage us in a compensation claim, 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.

Client Obligations

If you enter into a No Win, No Fee arrangement with us, your obligations are:

To sign our No Win, No Fee Costs Disclosure and Costs Agreement,
Be honest and transparent when providing instructions to your solicitor,
Advise us immediately if your circumstances change which might impact your claim,
Consider, accept and follow reasonable legal advice,
Remain in constant contact with Trump Lawyers.

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).

The Assessment

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).

Clinical Examination

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.

Post MVA

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.

Diagnosis

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.

If you have been in a motor vehicle accident and are seeking compensation, reach out to our team today.