Few decisions in a motor accident claim carry more weight than whether your injury is classified as a threshold injury. It sounds like a technical label, but it can quietly decide how long your benefits last and whether you can ever claim a lump sum for what the accident has cost you. So when an insurer sends a letter saying your injury is a threshold injury, it is natural to feel that a door has been closed.
Here is the reassuring part. A threshold injury decision is an opinion formed on the medical evidence in front of the insurer, and that evidence is often incomplete. These decisions are among the most commonly disputed in the whole CTP scheme, and they are frequently overturned once the right medical evidence is put forward. You have a clear right to challenge the decision, and strict time limits that make acting quickly essential.
This guide explains what a threshold injury is under New South Wales law, why the classification matters so much, the reasons insurers get it wrong, and exactly how to dispute the decision. Please treat this as general information rather than advice about your own claim, because every matter turns on its own medical evidence and circumstances.
What is a threshold injury, and why does it matter so much?
The term comes from the Motor Accident Injuries Act 2017 (NSW), the law that governs motor accident claims in this state for accidents on or after 1 December 2017. The scheme is regulated by the State Insurance Regulatory Authority, known as SIRA. A threshold injury, which the scheme originally called a minor injury, is defined in section 1.6 of the Act as either a soft tissue injury or a psychological or psychiatric injury that is not a recognised psychiatric illness.
The reason the label matters is that it controls two very important things.
First, it limits how long your benefits last. If all of your injuries are threshold injuries, your weekly payments and treatment are generally available only for the first 52 weeks after the accident. For accidents before 1 April 2023 that period was 26 weeks. Beyond that point, benefits for a threshold injury generally stop.
Second, and often more significantly, a threshold injury shuts you out of a common law damages claim. That means no lump sum for pain and suffering, and no damages for past and future loss of earnings, no matter how disrupted your life has been. Those larger entitlements are only open to people whose injuries are more than threshold injuries and who were not mostly at fault.
There is one crucial point of relief in all of this. You do not need every injury to be above the threshold. If even one of your injuries is not a threshold injury, your claim as a whole is treated as more than a threshold injury claim. That single fact is often what a well prepared dispute turns on.
Which injuries are and are not threshold injuries
Understanding where the line falls helps you see whether the insurer may have got it wrong. On the physical side, a soft tissue injury is an injury to the tissue that connects, supports or surrounds other structures in the body, such as muscles, tendons, ligaments and cartilage. Whiplash, sprains and strains are the classic examples, and these are threshold injuries.
What takes an injury above the threshold is important. A soft tissue injury specifically does not include an injury to the nerves, or a complete or partial rupture of a tendon, ligament, meniscus or cartilage. Fractures are not soft tissue injuries either. And where there is damage to a spinal nerve root that meets the medical criteria for radiculopathy, which broadly means nerve root irritation producing objective signs such as reproducible numbness or weakness in a specific nerve pattern, that is not a threshold injury.
On the psychological side, an emotional reaction to a crash such as feeling anxious, low or fearful is treated as a threshold injury. So too, unusually, are adjustment disorder and acute stress disorder, which are singled out as threshold injuries even though they are recognised conditions. A diagnosed psychiatric illness such as post traumatic stress disorder or major depression, however, is not a threshold injury. Whether a recognised psychiatric illness is present is assessed against the standard psychiatric diagnostic manual known as the DSM.
The table below sets out the general picture.
| Threshold injury | More than a threshold injury | |
|---|---|---|
| Physical examples | Soft tissue injuries such as whiplash, sprains and strains | Fractures, nerve injuries, radiculopathy, and complete or partial ruptures of a tendon, ligament, meniscus or cartilage |
| Psychological examples | Emotional reactions that are not a recognised illness, plus adjustment disorder and acute stress disorder | Recognised psychiatric illnesses such as post traumatic stress disorder or major depression |
| Weekly payments and treatment | Generally limited to the first 52 weeks | Can continue beyond 52 weeks if you were not mostly at fault |
| Lump sum damages for pain and suffering | Not available | May be available if the separate damages thresholds are met |
Why insurers get threshold injury decisions wrong
Insurers make the threshold injury decision by looking at the medical evidence on your file, usually within about nine months of your claim. The trouble is that the evidence is often thin at the early stages of a claim, and that is where mistakes creep in.
The most common problem is that injuries are not properly recorded. In the days after a crash, when you are in pain and just trying to cope, a GP certificate might simply say neck pain or stress rather than setting out a specific diagnosis. If an injury is described in vague terms, or left off the paperwork altogether, the insurer may never realise it is there, and it cannot count what it cannot see.
Another frequent issue is that a more serious injury has not yet been investigated. Nerve involvement, a rupture or a fracture may not be obvious on a first visit and only becomes clear once a specialist has assessed you or imaging has been done. Psychological injuries are especially prone to being underestimated, because early distress can mask a developing condition such as post traumatic stress disorder that only a proper assessment will identify.
Consider a realistic example. A man is rear ended at a set of lights and develops neck and arm pain. His early certificates record only neck pain, and the insurer classifies the injury as whiplash, a threshold injury. Months later, a specialist examines him, finds objective signs of nerve root involvement and diagnoses radiculopathy. Because a nerve injury of that kind is not a threshold injury, that new evidence can change the classification entirely and reopen his access to ongoing benefits and a possible damages claim. This example is illustrative only and every claim depends on its own facts.
How to dispute a threshold injury decision
If the insurer says your injury is a threshold injury and you believe it is more serious than that, you do not have to accept it. There is a defined process for challenging the decision, and each stage is a genuine opportunity to have it changed. In broad terms it works like this.
- Read the decision letter carefully and identify exactly which injuries the insurer has treated as threshold injuries.
- Make sure every injury is properly documented, including any injury that was described vaguely or left out, and ask your treating practitioners to correct the record where needed.
- Obtain focused medical evidence that addresses the legal test, for example a specialist opinion confirming a nerve injury, a rupture, a fracture, or a diagnosed psychiatric illness.
- Request an internal review by the insurer, in writing, within 28 days of the decision.
- If you are not satisfied with the internal review, apply to the Personal Injury Commission for an independent medical assessment.
- Get legal advice early, ideally before you lodge the dispute, so the strongest possible case is put from the start.
The two formal stages are worth explaining further.
Requesting an internal review
Your first step is usually to ask the insurer to reconsider its decision through an internal review. You must apply within 28 days of receiving the decision. A different person within the insurer, who was not involved in the original decision, then reconsiders it in light of any new information you provide. This is your chance to put fresh medical evidence on the table, and the insurer must complete the review within a short timeframe, generally 14 days. Many disputes are resolved at this stage simply because the insurer is now looking at a properly documented picture of your injuries.
Applying to the Personal Injury Commission
If the internal review does not resolve things, you can take the dispute to the Personal Injury Commission, the independent tribunal that decides motor accident disputes in New South Wales. A threshold injury dispute is a medical question, so it is referred to a Commission appointed medical assessor, an independent specialist who examines you and decides whether your injury meets the definition of a threshold injury under the Act. The assessor is independent of the insurer, and if you disagree with the outcome there is generally a further right to have the assessment reviewed by a panel. The assessor’s determination on this question is binding.
Evidence that can change a threshold injury decision
Most successful disputes come down to better evidence, because these decisions are made on paper. The material that tends to make the difference includes a clear diagnosis from a treating specialist that names the injury precisely rather than describing it in general terms, imaging or clinical findings that confirm a nerve injury, a rupture or a fracture, and a proper psychiatric assessment where a psychological injury is involved, so that a recognised illness such as post traumatic stress disorder is identified rather than dismissed as ordinary distress.
Two practical points are worth stressing. Make sure all of your injuries, including psychological symptoms, medication side effects, and any earlier condition the accident has made worse, are recorded in your certificates and reports. And remember that you only need one injury that is more than a threshold injury for your whole claim to be treated that way, so a single well evidenced injury can change everything. It is also worth knowing that the insurer cannot force you to have diagnostic imaging purely to decide the threshold question, and its decision must rest on a genuine clinical assessment.
Time limits you need to know
Time limits are unforgiving in this area, and missing one can cost you rights you cannot easily get back.
You generally have 28 days from the insurer’s decision to request an internal review. Strict limits, commonly 28 days from the internal review outcome, then apply to referring the matter to the Personal Injury Commission. Separately, if your injuries turn out to be more than threshold injuries and you wish to pursue a common law damages claim, court proceedings generally must be commenced within three years of the accident. Because the threshold question sits at the very foundation of your entitlements, it pays to deal with it early rather than leaving it until other deadlines are bearing down on you.
What a successful dispute can mean for your claim
It is important to be realistic. No lawyer can promise a particular result, and the outcome of any dispute depends on your individual medical evidence and circumstances. What a successful challenge can do, though, is significant. If your injury is found to be more than a threshold injury, your weekly payments and treatment can continue beyond the initial period rather than stopping at 52 weeks, and, provided you were not mostly at fault and the separate damages thresholds are met, the door to a common law claim for pain and suffering and for loss of earnings can open. In other words, the threshold decision is often the gateway to the rest of your claim, which is exactly why it is worth getting right.
How Stephen Young Lawyers can help
Challenging a threshold injury decision is not something you should have to work out alone while you are still recovering. An experienced personal injury lawyer knows precisely what the definition requires and what evidence moves the needle. We review the insurer’s decision and your medical file, identify the injuries that may take you above the threshold, arrange the specialist evidence needed to prove them, and run the dispute through internal review and the Personal Injury Commission where necessary.
Because motor accident injuries often overlap with other entitlements, we can also tell you whether you have a related claim. If your accident happened while you were working or travelling for work, you may also have a workers compensation claim alongside your motor vehicle accident claim. If your injuries have permanently affected your ability to work, you may also have a Total and Permanent Disability claim through your superannuation. As an Accredited Specialist personal injury firm based in Sydney CBD, with a multilingual team and a No Win No Fee approach for eligible matters, we can review where your claim stands and advise you on the next step.
A threshold injury decision is a starting point for a conversation, not the final word. With the right evidence and guidance, it can be challenged.
Speak with an experienced motor accident lawyer today
If your insurer has classified your injury as a threshold injury anywhere in New South Wales, do not assume the decision is final, and do not let the 28 day review deadline pass. The sooner your position is reviewed, the stronger your case is likely to be.
Contact Stephen Young Lawyers today for a free, no obligation consultation. Call us or get in touch through our website to speak with an experienced personal injury lawyer about your injuries and the options available to you.