THRESHOLD VS NOT A THRESHOLD INJURIES: UNDERSTANDING INJURY CLASSIFICATIONS UNDER THE NSW CTP SCHEME

WHAT IS A THRESHOLD INJURY & WHY DOES IT MATTER?

The definition of a ‘Threshold Injury’ can be found within the NSW Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017. The definition contains a physical injury category and a mental health injury category. These are summarised as follows:

• Soft tissue injuries: These involve damage to muscles, ligaments, tendons, and skin without damage to the bones or nerves. Examples include sprains, strains, and bruising.
• Minor psychological or psychiatric injuries: These are limited to conditions such as adjustment disorder or acute stress disorder, which are short-term and generally resolve with minimal treatment.

People who sustain ‘Threshold Injuries’ (previously known as ‘Minor Injuries’) are limited to 52 weeks of medical treatment, commercial care and income support and are not permitted to pursue a lump sum compensation claim. In NSW, claims for lump sum compensation (known as an Application for Damages Under Common Law) can be significant, often amounting to hundreds of thousands of dollars.

WHAT IS A NON -THRESHOLD INJURY

Injuries that are considered to be ‘Not a Threshold Injury’ or ‘Non -Threshold Injuries’ are those which fall outside of the legislative definition of a ‘Threshold Injury’. In many cases, these injuries will be more serious and have significant lifelong consequences, such as:

• Serious brain or spinal cord injuries.
• Fractured bones.
• Damage to internal organs.
• Significant nerve damage.
• Mental health injuries such as post-traumatic stress disorder (PTSD) or major depression.

People who have sustained injuries that are ‘Not a Threshold Injury’ and who are also ‘not at-fault’ for the motor accident are entitled to:

• Lifelong treatment and commercial care.
• Income support payments beyond 52 weeks (subject to legislative conditions).
• Lump sum compensation for pain and suffering (subject to a separate injury threshold being established) and past and future economic losses.

HOW ARE THRESHOLD AND NON-THRESHOLD INJURIES ASSESSED?

The assessment process for determining whether a person has sustained a ‘Threshold Injury’ is not always straight forward and disputes are common. There are however a number of steps that injured people can take to ensure that all injuries are documented and considered as part of the insurer’s ‘threshold injury’ considerations:

• Ensure that all injuries are listed in the Application for Personal Injury Benefits and the accompanying Certificate of Capacity.
• Ensure that all medical evidence (including the Certificate of Capacity) accurately states each and every injury that occurred in the accident. This includes injuries that may not be as severe as others, or alternatively that pre-existed the accident and have been aggravated. A mistake that commonly occurs is that injuries are summarised or omitted from medical documents, meaning the insurer is entirely unaware that the injury occurred in the accident. Medical documents include those from general practitioners, specialists, allied health providers, rehabilitation providers who report directly to the insurer and also medico-legal doctors.
• If injuries are omitted from medical evidence, ensure that it is brought to the insurer’s attention and that the medical provider rectifies the omission in their next report to ensure that the injuries remain within consideration by the insurer.
• In some circumstances the injured person will be requested to attend an independent medico-legal assessment by their legal representative and/or the insurance company. This typically occurs if there are pre-existing injuries, degenerative conditions or subsequent injuries which complicate the ‘threshold injury’ considerations.
• The insurer will typically then review all of this information to determine whether a ‘Threshold Injury’ exists and will issue a determination confirming their position.
• In circumstances where the insurer alleges that a ‘Threshold Injury’ exists, an injured person has the right to undertake an internal review of that decision with the insurer and to also proceed to the Personal Injury Commission for an independent medical assessment.

THE KEY POINTS TO REMEMBER

• Injured people who have sustained ‘Threshold Injuries’ are limited to 52 weeks of statutory benefits of treatment, care and income loss.
• Injured people who have not sustained ‘threshold injuries’ and who are not at-fault for their accident are entitled to extended statutory benefits and may also be entitled to lump sum compensation for pain and suffering, as well as past and future economic loss.
• Accurate classification of injuries is essential to ensure you receive appropriate benefits under the NSW CTP scheme.

THE BENEFITS OF CONSULTING A LAWYER

Navigating the NSW CTP scheme, especially when it comes to understanding whether your injury is classified as a threshold or non-threshold, can be complex and confusing. A lawyer experienced in CTP personal injury claims can make all the difference in ensuring that your injuries are accurately assessed and that you receive the compensation you are entitled to. Legal experts such as the team at Advantage Legal understand how claims are evaluated and can help gather the necessary medical evidence to accurately support your case. Advantage Legal also has the experience and expertise to challenge incorrect injury classifications, which could be the key to accessing long-term benefits, income support and even lump-sum compensation.