If you sustained an injury in a motor vehicle accident on or after 1 December 2017, the compensation you can claim is dependent on whether the injury is classified as a 'minor injury' 1.
Under NSW legislation 2 a minor injury is a:
- 'Soft tissue injury; or
- Minor psychological or psychiatric injury 3.'
Examples of 'minor injury'?
When it comes to motor vehicle accidents, whiplash is the most common soft tissue injury. Other examples of soft tissue injuries are a sore back or muscle strain 4. Other examples under the Act relating to soft tissue/minor injuries include injuries to blood vessels, cartilage, fat, fascia, fibrous tissues, ligaments, menisci, tendons and synovial membrane 5.
Generally, if the injury is not a recognised psychiatric illness, it is a minor injury. It is important to note however that acute stress disorder and adjustment disorders are two recognised psychiatric illnesses that are also minor injuries 6.
What benefits are available for people with minor
injuries?
To support their recovery, those with a minor injury can obtain benefits for up to 26 weeks following their accident 7. These benefits may be inclusive of medical and treatment expenses, weekly income support payments and domestic and personal care services. If you have a minor injury you will not be able to pursue a common law damages claim 8.
While there is no statutory entitlement to benefits after 26 weeks, there are some circumstances, however unusual, where treatment care benefits may be available beyond this period. This can occur on a discretionary basis where the insurer may approve some further treatment if it will help improve your recovery 9. The same should be discussed with your insurer case manager where needed.
What if I have multiple injuries?
In these circumstances, the insurer will independently classify each motor accident-related injury. Your claim will not be classified as a minor injury claim if at least one of your injuries is not a minor injury 10.
The Insurer's Decision
If you don't agree with an insurer's decision, you may request reconsideration from the insurer through an 'insurer internal review' within 28 days of receiving a liability notice letter 11. The insurer should be provided with any new information regarding the injury, if that is available. An application to the NSW Personal Injury Commission can also be made in the event you are not satisfied with the outcome of the insurer internal review 12.
Explaining Non-Minor Injuries
Psychological or psychiatric injuries which are non-minor are inclusive of diagnosed psychological or psychiatric illnesses as post-traumatic stress disorder (PTSD) or depression, in addition to various other psychological or psychiatric illnesses 13.
Non-minor physical injuries can include brain and nerve injuries, fractures, spinal nerve root damage meeting criteria for radiculopathy, partial or whole cartilage, ligament, meniscus or tendon rupture and/or scarring 14.
Non-Minor Injuries Developing Over Time
Non-minor injuries can develop over time 15, in particular in the case of psychiatric or psychological injuries which often take more than six months to stabilise. If you have been assessed as having minor injuries, and hence entitled to benefits for six months, it is possible that your injury will not have stabilised, and may have worsened, during this period. In these circumstances it may be possible to develop a non-minor injury over time 16.
If your injury is classified as non-minor and your assessed degree of whole person impairment is greater than 10%, you may be eligible to claim damages for economic and non-economic loss, commercial attendant care, up to 206 weeks of weekly payments and payments for medical treatment 17.
Footnotes
1 Motor Accident Injuries Act (NSW) s 1.6(1).
2 Motor Accident Injuries Act (NSW) s 1.6(1).
3 Motor Accident Injuries Act (NSW) s 1.6(1).
4 Motor Accident Injuries Act (NSW) s 1.6(2).
5 Motor Accident Injuries Act (NSW) s 1.6(2).
6 Motor Accident Injuries Act (NSW) s 1.6(3).
7 Motor Accident Injuries Act (NSW) s 3.11.
8 - 17 https://www.sira.nsw.gov.au/claiming-compensation/motor-accidents-injury-claims/from-1-december-2017/understanding-minor-injury.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.