Pre-existing Injury Aggravation, What Changed After 2017 Reforms in NSW
Where a person's only injuries resulting from the accident are threshold injuries, weekly benefits and treatment and care generally cease after 52 weeks (ss 3.11 and 3.28).
If you suffered a road accident that worsened a pre-existing medical condition, the rules for claiming compensation in New South Wales have changed significantly since 2017. The reforms to the Motor Accident Injuries Act 2017 now require claimants to prove the accident directly aggravated their injury, and insurers must demonstrate the injury was not worsened by the crash. This shift has altered how claims are assessed, especially for injuries like chronic back pain, arthritis or pre-existing neurological conditions.
Key Changes to NSW CTP Claims After 2017
Before 2017, insurers could often deny claims where an injury appeared to predate the accident. The 2017 reforms clarified that a claim is only valid if the road accident directly aggravated the existing condition. This means:
- Aggravation must be proven: Medical evidence must show the accident worsened the injury beyond its original state.
- Burden on insurers: Insurers must now prove the injury was not aggravated by the accident, not the claimant.
- Threshold injury rules: If the aggravation is minor and falls within the 'threshold injury' definition (e.g., soft tissue injuries), benefits may stop after 52 weeks under the Act.
The reforms also clarified that pre-existing injuries are not automatically excluded from claims. However, the onus is on the claimant to demonstrate a clear link between the accident and the worsened condition.
Evidence Required for Pre-existing Injury Claims
To support a claim for pre-existing injury aggravation, you’ll need:
- Medical records: Documentation showing the pre-existing condition, including dates of diagnosis and treatment.
- Accident details: Police reports, witness statements, and evidence showing the accident’s impact (e.g., medical imaging showing worsened injuries).
- Medical opinion: A doctor must confirm the accident aggravated the condition, not just coincided with it.
- Income and treatment records: Evidence of lost wages or additional treatment costs caused by the aggravation.
For example, if you had a pre-existing knee condition and the accident caused a tear that required surgery, your claim must show the accident directly caused the tear, not just exacerbated existing wear and tear.
Time Limits and Dispute Options
Claims must be made within a reasonable time of the accident, though there is no strict statutory deadline. However, delays can weaken your case, especially if medical evidence is needed to prove aggravation.
If your claim is disputed, you may:
- Request a review from the insurer’s internal team.
- Seek mediation through the NSW Civil and Administrative Tribunal (NCAT) if the insurer refuses to settle.
- Lodge a complaint with the NSW Ombudsman if the insurer’s refusal is unreasonable.
When to Seek Legal Advice
The 2017 reforms have made it more complex to prove pre-existing injury aggravation. If your claim is denied, or if you’re unsure whether the accident worsened your condition, it’s important to seek legal advice. A solicitor can help:
- Assess whether your injury meets the 'aggravation' test.
- Gather and present medical evidence effectively.
- Navigate disputes with insurers.
Next Steps
Understanding how the 2017 reforms affect your claim is critical. If you’re in Albury or elsewhere in NSW and need help with a pre-existing injury aggravation claim, contact a legal professional who specialises in CTP matters. Every claim depends on its own facts.
Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.