For injuries sustained in motor vehicle accidents which occurred on or after 1 December 2017, the type and amount of compensation you can claim depends in a large part on whether your injury is classified as a “minor injury” or not.
Making a compensation claim
Once you have made a claim for personal injury benefits, the insurer will pay weekly payments of compensation if you are able to work and medical expenses for a period of up to 26 weeks.
Everyone who is injured in a motor vehicle accident, no matter whose fault, is entitled to payment of weekly compensation and medical expenses for a period of up to six months.
If you wish to receive weekly payments and medical expenses after 26 weeks, the insurer is required to decide in relation to your claim as to the following: -
- Whether or not the motor vehicle accident was your fault or the fault of the other driver.
- Whether you have a “minor injury”.
The insurer usually makes this decision about 3 months after you have made the claim.
Payments after 26 weeks
To continue to receive statutory benefits of weekly compensation and medical expenses after 26 weeks and have an entitlement to make a common law claim for pain and suffering and loss of future income, it must be determined that:-
- The accident was not your fault but the fault of the other driver; and
- That you do not have a “minor injury”.
What is a minor injury?
The Motor Accidents Injuries Act 2017 defines a minor injury as follows:-
- Soft tissue injury.
- A minor psychological or psychiatric injury.
A soft tissue injury is defined as:-
“an injury to the tissues that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, facia, fibrosis 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”.
The regulations add the following: -
“an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury.”
A minor psychological or psychiatric injury is defined as:-
“a psychological or psychiatric injury that is not a recognised psychiatric illness.”
This means that if you have sustained PTSD or an adjustment disorder as a result of a motor vehicle accident, this is a recognised psychiatric injury and therefore is not a minor injury.
If you disagree with the decision, made by the insurer, about whether or not you have a minor injury you can refer the matter to Dispute Resolution Service (DRS) to resolve this dispute. The DRS will appoint an independent assessor to make a binding decision.
Examples of Minor Injury Decisions
There have now been a number of decisions made by the DRS in relation to what constitutes a minor injury and here are some examples: -
- The claimant was a front seat passenger in a vehicle. …… The traffic lights which was rear-ended by another car. The claimant reported a brief loss of consciousness, was taken to hospital by ambulance. The claimant subsequently consulted a general practitioner and had pain in the right side of the neck, low back, right leg and right knee. The claimant underwent 18 sessions of physiotherapy and continued to consult his general practitioner.
On examination, the claimant was found to have a reduced range of motion in the neck but no muscle spasm or guarding, a reduced range of motion in the lumbar spine but with no muscle spasm or guarding and no neurological symptoms.
The claimant was diagnosed as suffering soft tissue injury to the cervical spine, right shoulder, low back, left chest and right knee. There was no radiculopathy present. The claimant was found to have a minor injury as it satisfied the definition of minor injury in that all injuries sustained were soft tissue and there were no neurological signs such as radiculopathy present.
The claimant was therefore only entitled to weekly payments and medical expenses for a period of 6 months.
- The claimant was again involved in a rear end motor vehicle accident reporting immediate neck pain with radiation of pain across both shoulders and into the upper back. The DRS assessor found that the claimant had sustained a whiplash injury to the cervical and upper thoracic spine with referred symptoms into the left and right shoulder region. There was no evidence of radiculopathy or any neurological condition. There was no injury involving any torn ligaments, tendons or nerves.
This was considered a minor injury as it was soft tissue only.
From a physical perspective to have more than a minor injury there needs to an injury involving torn ligaments, tendons or nerve damage such as radiculopathy. Scarring and other bodily disfigurements, any eye injury, hearing loss, organ damage or fracture/broken bone will be enough to qualify as more than a minor injury.
However, any spine injury that does not produce radiculopathy, that is, nerve damage, does not and will be considered a minor injury. Such spinal injuries are considered “soft tissue”.
The definition is harsh and people with serious injuries will often not qualify for benefits after 26 weeks or Common Law claims as they will be classified as having a minor injury.
In relation to psychological injuries the following example is helpful;
- A claim involved a claimant who was driving with his family. As the claimant slowed down and indicated to turn left, a vehicle collided with a rear of their car. The claimant lost control of the car and spun around to face another vehicle which collided with the claimant’s car. The claimant was concerned with the welfare of his family members and was subsequently transported to hospital with soft tissue injury.
The claimant subsequently consulted his general practitioner with complaints of stiff neck, pain, headaches and insomnia. The claimant was referred to a physiotherapist and treated with analgesic medication. The physical injuries were considered minor injuries as they were soft tissue in nature.
The claimant however also had a psychological condition as he was suffering from intrusive and recurrent memories of the accident, flashbacks, disturbed sleep, irritability, persistent thoughts of self-blame and guilt, fluctuating appetitive, poor energy and lack of motivation and unable to drive due to increased anxiety.
The initial diagnoses was one of an adjustment disorder with mixed anxiety and depressed mood. Subsequently, a diagnosis was made of post-traumatic stress disorder.
An acute stress disorder or an adjustment disorder is considered to be a minor psychological or psychiatric injury.
Post-traumatic stress disorder is not considered to be a minor injury. Whilst the claimant’s condition had originally begun as an acute stress reaction, it had developed into post-traumatic stress disorder and therefore was not considered to be a minor injury.
The insurer’s decision as to whether the injury is a minor injury can be challenged through the Dispute Resolution Service.
You will need the assistance of an Accredited Specialist in Personal Injury Law to assist in making this application to DRS as it may require obtaining medical evidence from your treating doctors to assist in determining whether the injury is a minor or non-minor injury.
Legal costs for challenging an insurer’s decision through the DRS are paid for directly by the insurer.
GARLING AND CO LAWYERS
Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.
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