Motor accident injuries that result in chronic pain are assessed by insurers under the Motor Accident Injuries Act 2017 (MAIA), which governs all Compulsory Third Party (CTP) claims in New South Wales. Insurers assess liability not on fault alone, but on whether the injury arose from the motor accident and whether it meets the legal thresholds for compensation. In Greater Sydney, as across NSW, this process is guided by the Motor Accident Injuries Regulation 2017 and the Motor Accident Guidelines issued by the State Insurance Regulatory Authority (SIRA). The assessment focuses on medical evidence, the nature and duration of pain, and whether the injury is considered a threshold injury under the law. Insurers do not determine liability based on who caused the accident, but on whether the injury is attributable to the accident and whether it qualifies for benefits under the statutory framework.
Under the MAIA, a person may be entitled to treatment and care benefits, weekly income payments, and, in some cases, damages for pain and suffering. However, entitlement to damages is restricted if the only injuries sustained are threshold injuries. A threshold injury includes certain soft tissue injuries, such as whiplash, but only if they result in a permanent impairment of at least 10% of the whole person. Chronic pain that persists beyond 52 weeks and is linked to a threshold injury may still qualify for ongoing treatment and care benefits, but damages are not available unless the injury exceeds the threshold or there is a qualifying non-threshold injury.
Insurers assess liability by reviewing medical evidence, including reports from treating medical practitioners, independent medical assessments, and diagnostic imaging. They also consider the timing of symptoms, the consistency of reported pain with clinical findings, and whether the injury pattern matches the accident. In Greater Sydney, as elsewhere in NSW, insurers rely on SIRA’s Motor Accident Guidelines to determine whether a claim for chronic pain is supported by medical evidence. For example, if a claimant reports ongoing neck and back pain following a rear-end collision, the insurer will examine whether the pain is objectively supported by imaging, physical examination, and functional assessment. They will also assess whether the pain is likely to have arisen from the accident, not from pre-existing conditions or unrelated causes.
Key evidence that supports a chronic pain claim includes contemporaneous medical records, pain diaries, functional capacity assessments, and witness statements about changes in the claimant’s behaviour or capacity. Photographs of the accident scene, vehicle damage, and any visible injury at the time of the accident may also be considered. The claim must be supported by objective medical findings and a clear causal link to the motor accident.
A common issue in Greater Sydney and elsewhere in NSW is the assessment of radiculopathy, a neurological condition involving nerve root dysfunction. The Motor Accident Guidelines define radiculopathy as a condition that must be demonstrated by specific clinical signs, including sensory disturbance, motor weakness, or reflex changes. If a claimant’s chronic pain is attributed to a spinal nerve-root injury, but no such signs are present, the injury may still be considered a soft-tissue injury under the law, and thus subject to the 52-week benefit cap if it is the only injury. However, if neurological signs are confirmed, the injury may be treated as a non-threshold injury, potentially opening the door to damages.
There is no automatic entitlement to compensation for chronic pain. Insurers assess each claim on its merits, using the legal framework established by the MAIA and SIRA’s guidelines. If a claim is denied or benefits are limited, the claimant may request a review or apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. Disputes over liability, injury classification, or benefit entitlements are common in chronic pain claims, particularly where pain persists beyond initial recovery. In such cases, independent medical assessments are often required to resolve conflicting evidence.
The timeframe for making a claim is critical. Under the MAIA, a claim must generally be made within three years of the accident date. However, the 52-week limit on treatment and care benefits applies regardless of when the claim is made, provided the only injuries are threshold injuries. This means that even if a claim is made years later, benefits for treatment and care may not be extended beyond 52 weeks from the date of injury, unless the injury is not a threshold injury or a non-threshold injury is present.
A realistic example: A pedestrian in Sydney’s Inner West was struck by a car while crossing a road at a marked crossing. The person reported neck and shoulder pain immediately after the accident. Over the next 18 months, they received physiotherapy and pain management treatment, but pain persisted. An independent medical assessment confirmed a soft-tissue injury to the cervical spine, but no signs of radiculopathy. The insurer accepted the injury was a threshold injury and paid treatment and care benefits for 52 weeks. No damages were awarded because the only injury was a threshold injury and no non-threshold injury was established.
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