Pre-existing Injury Aggravation in NSW CTP Claims
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).
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).
If a motor accident worsens a pre-existing injury, the claimant’s compensation and caregiver responsibilities may change. Under the Motor Accident Injuries Act 2017 (MAIA), aggravation of a pre-existing condition can affect eligibility for benefits and the calculation of damages. Families in Greater Sydney need to understand how this impacts care arrangements and legal options.
How SIRA Assesses Pre-existing Injury Aggravation
The State Insurance Regulatory Authority (SIRA) oversees CTP claims in NSW. When a pre-existing injury is aggravated by an accident, SIRA evaluates whether the aggravation meets the threshold for compensation. This involves:
- Medical evidence: Doctors must confirm the pre-existing condition and how the accident worsened it. For example, a back injury that required surgery before the accident but became more severe after the crash.
- Spinal nerve-root qualification: Under the Motor Accident Guidelines, a spinal nerve-root injury producing neurological signs (other than radiculopathy) may still qualify as a soft-tissue injury. Radiculopathy requires specific clinical signs, such as radicular pain and neurological deficits.
- Threshold injury rules: If the aggravation results in a threshold injury (e.g., a soft-tissue injury with neurological signs), the 52-week statutory benefit period applies. However, if the aggravation leads to a more severe injury (e.g., a whole-person impairment of 10% or more), the benefit period may extend beyond 52 weeks.
Practical Steps for Families in Greater Sydney
Caregivers and families should take these steps to support a claim:
- Document the pre-existing injury: Gather medical records, diagnosis dates, and treatment history to establish the condition before the accident.
- Track the aggravation: Note how the accident worsened the injury, including new symptoms, increased pain, or functional limitations. For example, a person with a pre-existing knee injury may experience instability or swelling after the accident.
- Record caregiver responsibilities: Keep a log of time spent on caregiving tasks, such as helping with mobility, medication management, or household chores. This helps quantify the impact on daily life.
- Preserve accident evidence: Collect witness statements, police reports, and photos of the scene to support the claim.
- Seek medical opinions: Ensure doctors assess both the pre-existing injury and its aggravation. This may involve a second opinion if there is disagreement about the extent of the worsening.
Time Limits and Dispute Options
CTP claims in NSW have strict time limits. The injured person must notify the at-fault driver’s insurer within 52 weeks of the accident. If the aggravation of a pre-existing injury is not claimed within this period, the claim may be denied. However, exceptions exist if the claimant can prove the aggravation was not discovered until after the 52-week mark.
Disputes may arise over whether the aggravation qualifies for compensation. For example, an insurer might argue the pre-existing injury was the primary cause of the claimant’s symptoms. In such cases, families should:
- Request a review: SIRA allows for a review of claims if new evidence emerges.
- Seek legal advice: A solicitor can help challenge an insurer’s decision or negotiate a fair settlement.
When to Seek Legal Advice
Families should consult a lawyer if:
- The claimant’s condition worsens after the 52-week period.
- The insurer denies the claim, citing the pre-existing injury as the main cause.
- Caregiver responsibilities are affecting the claimant’s ability to work or perform daily tasks.
Legal professionals can help navigate SIRA’s guidelines, ensure all evidence is properly submitted, and challenge decisions that unfairly limit compensation.
Conclusion
Aggravation of a pre-existing injury in a motor accident can significantly impact a claimant’s compensation and caregiver responsibilities. Families in Greater Sydney must document the injury’s history, track its worsening, and act within the 52-week time limit. While SIRA provides a framework for assessing these claims, legal advice is essential to challenge unfair decisions or secure maximum benefits. Every claim depends on its own facts. To request contact about your circumstances, complete the quick, no obligation enquiry form.