What is a transitional claim under the MAI Act in NSW?
A threshold injury under the Motor Accident Injuries Act 2017 (NSW) includes a soft tissue injury and a psychological or psychiatric injury that is not a recognised psychiatric illness (adjustment disorder and acute stress disorder are the usual examples; s 1.6 and Motor Accident Guidelines Part 5).
A transitional claim arises when a motor accident occurred before 1 December 2017, but the claim for compensation is made under the Motor Accident Injuries Act 2017 (MAIA), which came into effect on that date. This means the claim is governed by the new legal framework, but the accident itself happened under the old Motor Accidents Compensation Act 1999 (MACA). In Greater Sydney, as elsewhere in NSW, these claims are assessed under MAIA, but with specific rules that apply because the accident occurred under a different legal regime.
Insurers must assess these claims according to the MAIA, not the old law. This includes applying the threshold injury provisions, the 52-week rule for statutory benefits, and the whole person impairment (WPI) assessment process. The insurer’s decision-making process is guided by the same principles as for any MAIA claim, but the claimant’s injury history and treatment timeline may be more complex due to the change in legislation.
How do insurers assess transitional claims in Greater Sydney?
Insurers assess transitional claims by applying the MAIA framework to the facts of the accident and the claimant’s injury. The insurer will review whether the claimant suffered a threshold injury, whether the injury is permanent, and whether the claimant qualifies for damages.
The insurer will examine the medical evidence to determine if the claimant has a permanent impairment. This includes a formal assessment by an independent medical practitioner under the Motor Accident Guidelines. If the claimant has a WPI of 10% or more, and the injury is caused by the accident, the claim may proceed to damages. The insurer will also assess whether the claimant has suffered an injury that meets the threshold for damages, which includes injuries that result in a permanent impairment of 10% or more, or a permanent loss of function.
In Greater Sydney, insurers may consider local medical treatment patterns and access to specialists when evaluating the reasonableness of treatment and care benefits. However, the insurer’s assessment must still comply with the MAIA and the Motor Accident Guidelines. The insurer cannot apply the old MACA rules to a claim made under MAIA.
What evidence matters in a transitional claim?
The following evidence is critical in supporting a transitional claim under MAIA:
- Medical records from the time of the accident and subsequent treatment, including diagnosis, imaging results, and treatment notes
- A formal whole person impairment (WPI) assessment conducted under the Motor Accident Guidelines
- Evidence of ongoing symptoms or functional limitations, such as a physiotherapist’s report or a workplace capacity assessment
- Details of any treatment or care received, including dates, providers, and outcomes
- A copy of the accident report, if available (e.g., from police, workplace, or private property)
- Witness statements, if available, particularly regarding the impact of the accident on daily life
Insurers in Greater Sydney may also review whether the claimant sought treatment within a reasonable time after the accident. Delays in treatment may affect the insurer’s assessment of the injury’s causation, particularly if the claimant had pre-existing conditions.
What time limits apply to transitional claims?
A claim for compensation under MAIA must generally be made within three years of the accident date. This three-year limitation period applies to transitional claims, even if the accident occurred before 1 December 2017. The claim must be made within this timeframe to avoid being barred by limitation.
If the claimant is under 18 at the time of the accident, the three-year limitation period starts when they turn 18. This means a minor has until their 21st birthday to make a claim.
There is no automatic extension for transitional claims. The insurer cannot extend the time limit simply because the claim was made under MAIA. However, a claim may still be accepted if it was made within the three-year period, regardless of the change in legislation.
How can a claimant respond to an insurer’s decision?
If an insurer denies a transitional claim or offers less than the claimant believes is fair, the claimant may request a review of the decision. The insurer must provide a written explanation of the decision, including the reasons and any supporting evidence.
The claimant may then request a formal review from the insurer. If the review is not satisfactory, the claimant may apply to the NSW Civil and Administrative Tribunal (NCAT) for a determination. NCAT has jurisdiction to hear disputes about entitlements, benefits, and damages under MAIA.
In Greater Sydney, claimants may also seek assistance from an independent legal adviser or a community legal centre to understand the insurer’s decision and to prepare a submission for review or tribunal application.
What should a claimant do next?
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.