Navigating motor vehicle accident claims can feel like a daunting task. We’re here to help make the process easier to understand. If you’ve been injured as a result of a motor vehicle accident on or after 1 December 2017, and you were not at fault, your potential entitlements will be largely determined by whether you have a ‘minor injury’ or a ‘non-minor injury’.
What is the difference between “minor” or “non-minor” injury
The type of compensation that you may be eligible for is dependent on the type of injury.
Minor physical injuries include soft tissue injuries that are not complete tears or ruptures of ligaments or muscles, or a spinal injury that does not result in clinically identifiable radiculopathy (referred pain).
Minor psychological injuries are generally psychological injuries other than a recognised psychiatric illness. If you have been diagnosed with either an “acute stress disorder” or an “adjustment disorder” only, you will be determined as having a minor injury.
Non-minor injuries include (but are not limited to):
* Fractures;
* Spinal injuries resulting in indefinable radiculopathy;
* Damage to organs;
* Scarring;
* Lacerations;
* Injury to nerves;
* Complete or partial rupture of tendons, ligaments, menisci or cartilage; and
* Recognised psychiatric injuries such as PTSD but not an “acute stress disorder” or an “adjustment disorder”.
Why does it matter?
The type of injury sustained in the accident will determine what can be claimed. Because of this, the decision made by the insurer as to whether you have a ‘minor injury’ can have a huge impact on your potential entitlement to compensation.
If the only injuries sustained in the accident are determined to be “minor injuries” then you cannot:
receive statutory benefits beyond 26 weeks from the accident (other than in some very limited circumstances); and
claim lump sum compensation (a damages claim) in respect of the accident – which may include compensation for non-economic loss (pain and suffering) and economic loss.
If one or more non-minor injury has been sustained in the accident you have a potential entitlement to statutory benefits and a claim for damages. This entitlement remains even if the injury has completely healed.
The insurer will make an assessment to determine whether your injuries were minor or not, within 3 months of your claim lodgement. Therefore, it is very important to get properly examined and diagnosed as soon as possible. The best ways to do this is by obtaining radiology such as x-rays, CT scans and MRI’s as soon as possible. This can help your claim.
You can challenge the insurer’s decision if you don’t agree with their determination, and a lawyer can do this on your behalf. Our Motor Accident lawyers are experienced in such claims and are able to assist in this process.
This article has dealt briefly with the minor injury provisions within the NSW System in a general way. It should not be considered legal advice. To discuss your entitlements and to obtain legal advice, contact us. Our team of friendly and experienced lawyers are ready to help you make a claim and ensure you receive the compensation that you deserve.
For more information on the statutory benefit system please click here.
We have seen people suffer injuries, including catastrophic ones, who have no idea that they even have a TPD insurance policy, let alone a TPD claim.
Our Senior Lawyer Christine Neufeld discusses five things you should know about TPD insurance claims.
You may have TPD insurance and not even know it. Often, people call our firm, who have been injured at work in a vehicle, or as a result of negligence. Some have suffered a life-changing or debilitating illness. Surprisingly, many people contact us to see if they can sue someone, but are completely unaware that they have TPD insurance. A TPD insurance policy can be worth hundreds of thousands of dollars. This amount of money can be life-changing for people who have suffered a permanent disability.
TPD insurance covers both mental and physical illness or injury. The injury or illness does not need to be work-related. Though there are various definitions under differing insurance policies, generally, it is determined by whether you can return to an occupation of work for which you are reasonably qualified. It is generally the case that it does not matter if the injury arose out of a physical or a mental injury, or illness, or a combination of these. By way of example, if someone was working as a mechanic, and they began to suffer from a mental illness, which was not work-related, they may still be eligible for a TPD benefit, if they can establish that they are unlikely to return to any occupation for which they are reasonably qualified.
TPD has got nothing to do with proving fault or negligence. With a TPD claim, you do not need to prove that your injury or illness was anybody’s fault. You simply need to prove that your injury or illness has caused an incapacity for work, to the extent that you are totally and permanently disabled, within the meaning of the policy.
Your occupation and qualifications matter. The question that needs to be determined in a TPD claim is whether you are fit to perform your work, or any work for which you are reasonably qualified. It is advisable to have a TPD lawyer review the TPD insurance policies and trust deeds to determine your eligibility, as the precise preconditions which need to be met vary. For instance, TPD definitions could include own-, or any-occupation clauses. An any-occupation clause means that a claimant needs to prove that they are unfit to perform any occupation for which they are suited by education, training or experience. It is not enough to prove you simply could not perform your own occupation. An own-occupation definition is far easier to satisfy. You would only need to prove that you would likely be unfit to perform your own occupation. What this means is that the last occupation you performed, prior to your illness or injury, is critical, as is your full work history, and other qualifications. For instance, it is generally easier to prove that someone who has been engaged in manual labor all their life will be totally and permanently disabled if they have suffered a significant physical injury than it would be for an office worker.
You may want to consider a retail policy, and should consider advice if you are looking to consolidate your superannuation. Sometimes, people may also have arranged insurances through a financial planner or insurance broker. Such professionals may have already set up a retail TPD policy on your behalf. This would often be done, for example, if you set up life insurance. It is generally the case that retail policies are usually for much larger lump sums, which can exceed millions of dollars. If you need to make a claim on a retail policy, you should certainly consult a TPD lawyer. If you haven’t got a retail policy in place, you may wish to consult a financial advisor or insurance broker. If something goes wrong in your life, and you’re unable to return to work, having an adequate TPD policy with a reasonable lump sum can provide great financial security for you and your family.
