What Changed for Shoulder Injury Claims After the 2017 CTP Reforms 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).
Shoulder injuries sustained in a motor vehicle accident in New South Wales are now governed by the Motor Accident Injuries Act 2017, which introduced significant changes to how compensation is assessed and paid. The reforms shifted focus from fault-based claims to a more structured, threshold-based system. For shoulder injuries, this means that compensation is now primarily determined by whether the injury meets the legal definition of a 'threshold injury' or a 'serious injury'. The most common shoulder injuries, including rotator cuff tears, shoulder dislocations, and nerve injuries, are assessed under the Motor Accident Injuries Regulation 2017 and the Motor Accident Guidelines issued by the State Insurance Regulatory Authority (SIRA). These changes mean that not all shoulder injuries now qualify for damages, and entitlements to weekly payments and treatment benefits are subject to new time limits and medical criteria.
How the 2017 Reforms Affect Shoulder Injury Claims
Under the 2017 reforms, a claim for a shoulder injury in NSW must first be assessed against the threshold for damages. A shoulder injury will only qualify for damages if it results in a 'serious injury' as defined in the Act. This includes injuries that cause a permanent impairment of at least 10% to the whole person, or that result in a permanent loss of function, or that cause a permanent restriction in movement or sensation. For shoulder injuries, this often involves a documented impairment of the shoulder joint, nerve damage, or long-term functional loss.
If the injury does not meet the threshold, the claimant may still receive statutory benefits, including treatment and care benefits and weekly income payments, but these are limited to 52 weeks from the date of the accident if the injury is classified as a 'threshold injury'. A threshold injury includes soft-tissue injuries, such as muscle strains, ligament sprains, or minor joint injuries, that do not result in a permanent impairment of 10% or more. However, a spinal nerve-root injury that causes neurological signs, such as numbness, weakness, or altered reflexes, may still be considered a threshold injury even if it does not meet the formal definition of radiculopathy, as per the Motor Accident Guidelines.
What Evidence Supports a Shoulder Injury CTP Claim in NSW
To support a claim for a shoulder injury under the 2017 reforms, a claimant must provide medical evidence that clearly links the injury to the motor accident. This includes a diagnosis from a medical practitioner, imaging reports (such as MRI or X-ray), and a formal assessment of whole person impairment (WPI) conducted by an approved medical assessor. The assessment must be performed under the Motor Accident Guidelines, which set out the criteria for evaluating shoulder injuries, including the impact on function, range of motion, and pain levels.
Other evidence that may be relevant includes a police report, a motor accident report (if completed), photographs of the vehicle damage or the scene, witness statements, and records of time off work. If the injury involves nerve damage, such as brachial plexus injury, a neurologist’s report may be required to confirm the presence of neurological signs. Claimants should also keep records of all treatment, including physiotherapy, medication, and specialist appointments.
Time Limits and Procedural Requirements
A claim for a shoulder injury must be made within a specific timeframe. While the 2017 reforms did not change the general 3-year limitation period for claims, the right to claim damages is subject to a 12-month time limit to apply for a damages claim if the injury is a threshold injury. This means that if a claimant believes their shoulder injury is a threshold injury, they must apply to the insurer for a damages claim within 12 months of the accident, or risk losing the right to claim damages.
Additionally, if a claimant has already received treatment and care benefits for 52 weeks and their shoulder injury has not resolved, they may still apply for a review of the benefits. The insurer must assess whether the injury has stabilised or whether further treatment is required. If the injury is found to be permanent or significantly impaired, a claim for damages may still be possible, but only if the injury meets the threshold for a serious injury.
When to Seek Independent Advice
The 2017 reforms have made the assessment of shoulder injuries more complex, particularly where there is a dispute over whether the injury is a threshold injury or a serious injury. Insurers may dispute the WPI assessment, or argue that the injury was pre-existing. In such cases, it is advisable to seek independent legal advice to understand the rights and options available. A claimant may also request a second opinion from an independent medical assessor, or apply to the NSW Civil and Administrative Tribunal (NCAT) if a dispute arises over benefits or impairment.
A realistic example: A 42-year-old driver sustained a rotator cuff tear in a rear-end collision. The injury caused ongoing pain and limited shoulder movement. After 18 months of treatment, a medical assessor determined a WPI of 12%. The insurer initially refused to pay damages, arguing the injury was a threshold injury. The claimant obtained a second opinion, which confirmed the WPI and the permanent functional loss. The claim was then successfully reviewed, and damages were awarded under the serious injury threshold.
Next Steps for a Shoulder Injury Claim
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