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.
Diana Joseph Solicitor P: 02 9724 2549
