Helen Huang
Special Counsel
CTP Insurance, Insurance
Can Medical Treatment be found in the Breakfast Aisle?
10 March, 2025
In Brief
- Whether a product constitutes “medical treatment“, for the purpose of the definition of “treatment and care” in s 1.4 of the Motor Accident Injuries Act 2017, depends upon the individual circumstances of the Claimant and why the product is required.
- Nutritional supplements, like Up & Go and Sustagen, may constitute “medical treatment” if, for example, an accident causes a need for surgery and the claimant is advised to gain some weight before the procedure.
Relevant Provisions
The phrase “treatment and care” is defined in section 1.4 of MAIA, as follows:
‘‘treatment and care means the following—
- (a) medical treatment (including pharmaceuticals),
- (b) dental treatment,
- (c) rehabilitation,
- (d) ambulance transportation,
- (e) respite care,
- (f) attendant care services,
- (g) aids and appliances,
- (h) prostheses,
- (i) education and vocational training,
- (j) home and transport modification,
- (k) workplace and educational facility modifications,
- (l) such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition,
- but does not include any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition.”
Facts
The Personal Injury Commission (PIC) published its decision in Ganeson v Allianz Australia Insurance Limited [2025] NSWPIC 55 on 7 March 2025.
The Claimant was involved in a motor accident on 13 December 2023 and sustained injuries to his foot and hand.
The Claimant requested approval from the Insurer for the provision of the nutritional supplements such as Up & Go and Sustagen in the lead up to, and in the recovery period after his surgery, as a form of “treatment and care” under section 1.4 of the Act.
The Insurer declined the request on the grounds that supplements, which are readily available from a supermarket without a prescription, do not constitute “treatment and care“.
The issue was referred to the PIC as a miscellaneous assessment matter.
The Member’s Determination
The Member determined that the supplements were “treatment” within the definition under section 1.4 of the Act.
The Member made the following general observations in support of giving s 1.4 a wide interpretation:
- A wider interpretation of “medical treatment” is required because the purpose and context of the definition in section 1.4 is to allow for a degree of flexibility, taking into account the circumstances of the individual Claimant and their injuries and to enable an individual Claimant to obtain early treatment, care and rehabilitation specific to their needs.
- The only relevant category in the definition of “treatment and care” is sub-clause (a): “medical treatment (including pharmaceuticals)“.
- Supplements do not fall within sub-clause (g) – “aides and appliances” – because aids and appliances are in external in nature and are not consumables.
- In applying a wider interpretation, the phrase “medical treatment (including pharmaceuticals)” is not restricted to only treatment provided by health practitioners who are medical practitioners (doctors) and extends to treatment and management provided by health care providers generally.
- The definition, therefore, extends to medicines and substances available from a pharmacy or elsewhere.
- A wider interpretation is also supported by the decision of Insurance Australia Limited t/as NRMA v Scott [2016] NSWCA 138, Justice Ward said at [86]:
“… I consider that the primary judge erred in construing the word ‘treatment’ in s 58 of the Act as confined to treatment that was to be professionally provided (and paid for). The definition of ‘attendant care services’ in s 3 of the Act is not so confined and I do not read the itemisation of the particular types of treatment included in the definition of ‘treatment’ in s 42 as drawing any distinction between paid/gratuitous or professional/voluntary services.”
The Member concluded that supplements, such as Up & Go and Sustagen, fell within the concept of “medical treatment (including pharmaceuticals)“, in this this particular dispute, for the following reasons:
- The Claimant was significantly underweight and needed to improve their nutrition, and gain some weight, prior to their surgery.
- The Claimant’s treating doctor made it clear that the supplements were necessary in the closed three-week period leading up to surgery, not for an infinite amount of time.
- Whilst a product such as Up & Go or Sustagen might not be considered “medical treatment” for a different claimant, those products do constitute medical treatment in this particular dispute because their use was supported by two health practitioners in the context of the claimant’s weight and his impending surgery.
Having found that the use of nutritional supplements constituted “medical treatment” in the context of this particular claim, the Member referred the dispute to a Medical Assessor to determine whether the use of the supplements was reasonable and necessary and related to the motor accident.
Why This Case is Important
The decision in Ganeson provides an example of how the definition of “treatment and care” must be considered in the context of the individual claimant’s circumstances and needs.
Supplements, like Up & Go and Sustagen, are generally available in the Breakfast Foods aisle at Woolies. For most claimants, their use would not be considered “medical treatment“.
In this case, however, there was a causal nexus between the accident and the Claimant’s need for surgery and between the need for surgery and the recommendation to gain weight in advance of the procedure. It followed that, in the individual circumstances of this dispute, the use of nutritional supplements fell within the wider interpretation of what constitutes “medical treatment“.
If you have a query relating to any of the information in this case note please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
