Statistics show that the most common injury sustained in a motor vehicle accident, whether the accident is minor or catastrophic, is a whiplash/spinal injury.
Whiplash under the Motor Accident Guidelines is defined as a threshold injury. Injured persons suffering from threshold injuries are only entitled to Statutory benefits for 52 weeks from the date of the accident. It is important to note that the Motor Accident Injuries Act 2017 (NSW) has protections in place to protect injured persons who develop symptoms of spinal radiculopathy even after the 52-week period has elapsed.
Compensation entitlements and their cap
Under the MAIA injured persons have the following statutory entitlements:
- Payment of weekly wages;
- Payment of reasonable and necessary medical and travel expenses; and
- Payment of reasonable and necessary domestic assistance.
If an injured person is not wholly at fault for the motor vehicle accident, and they are not suffering from what the MAIA defines as a threshold injury, then entitlements under common law exist. Those entitlements include:
- Damages for pain and suffering (non-economic loss); and
- Damages for past and future wage loss (economic loss).
Essentially, at the 52 week mark, the injured person will be kicked from the CTP Scheme if they are suffering from a threshold injury or they were wholly at fault.
The development of radiculopathy after the expiration of the Statutory period
The law accepts that if an injured person develops radiculopathy after the expiration of the Statutory period, then their entitlement to Statutory Benefits and a Common Law Damages claim remain. This means that even after the injured person has been barred from the CTP scheme for any period, if radiculopathy arises, their entitlements are reinstated.
The Guidelines define radiculopathy as the: “dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
- loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
- positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
- muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
- muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
- reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
If you have been involved in a motor vehicle accident where you suffered injuries to your spine and now believe that your condition is worsening, please do not hesitate to contact Turner Freeman for assistance.
Get in touch with us
At Turner Freeman, we have specialist personal injury lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our lawyers are located across NSW including offices in Sydney, Parramatta, Penrith, Campbeltown, Windsor, Toronto, Newcastle, Wollongong, Gloucester. Contact us today on 13 43 63 or 02 8833 2500.
