Ganeson v Allianz Australia Insurance Limited
[2025] NSWPIC 55
•13 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ganeson v Allianz Australia Insurance Limited [2025] NSWPIC 55 |
| CLAIMANT: | Rishirev Ganeson |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 13 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute as to whether certain nutritional supplements recommended by the claimant’s treatment providers (in the lead up to surgery and in the recovery phase) came within the definition of “treatment and care” under section 1.4 of the MAI Act; determination of this point preliminary to medical assessment; general approach to statutory construction considered; Alcan (NT) Alumina v Commissioner of Territory Revenue (NT), and Project Blue Sky Inc v Australian Broadcasting Authority followed; section 33 of the Interpretation Act 1987 and objects of the MAI Act considered; case of Allianz Australia Insurance Limited v The Estate of the late Summer Abawi referred to; legislative history of motor accident schemes and definitions of treatment considered from other schemes; the Health Practitioner Regulation National Law considered in terms of the distinction between health practitioners and medical practitioners or medical professionals; context and purpose of the definition of treatment is to provide boundaries or limits to statutory benefit in order to assist affordability of the scheme but allow the claimant to obtain early and appropriate treatment care and rehabilitation; parties agreed that nutritional supplements could come within the definition of treatment and care if they were “medical treatment (including pharmaceuticals)”; case of NRMA v Scott considered; phrase “medical treatment (including pharmaceuticals)” is not restricted to treatment provided by health practitioners who are medical professionals (doctors) but is a reference to health care provided by health care providers or health care practitioners to an injured person to manage or treat their injuries along with medicines and substances available form a pharmacy or elsewhere; labelling of the supplementary nutritional products considered and the timing of the doctor’s recommendation and its relationship to surgery to an injury caused by the accident; Held – based on the facts and circumstances of this case the supplements were a form of treatment; costs assessed in favour of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 and Schedule 2(3)(n) of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The provision of supplements (such as Up & Go and Sustagen) to Mr Ganeson in the lead up to, and in the recovery period after his July 2024 surgery, is a form of “treatment and care” as defined in s 1.4 of the Act. 2. The claimant’s costs of this miscellaneous claims assessment matter are assessed at $2,191.20. 3. The proceedings are returned to the Commission for medical assessment in accordance with Division 7.5 and Schedule 2(2)(b) of the Act. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Rishirev Ganeson was involved in a motor accident on 13 December 2023. He says he was riding an e-bike with a green traffic light when a taxi turned right in front of him. A collision occurred between the two vehicles.
Mr Ganeson sustained injuries to his foot and hand. He made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with Allianz, the third-party insurer of the taxi he collided with.
A dispute about the provision of Sustagen and Up & Go tetra packs in conjunction with surgery to his finger (the supplements) has arisen between Mr Ganeson and Allianz. Mr Ganeson referred the dispute to the Personal Injury Commission (the Commission).
Mr Ganeson identified the matter as a medical assessment matter submitting that the supplements requested are “treatment” which is related to the accident, and is reasonable and necessary in the circumstances. The insurer submits the supplements are not “treatment.”
The proceedings have been allocated to me under Schedule 3(2)(n) to determine whether the supplements are a form of treatment in order to determine whether there is any medical dispute that could then be referred for medical assessment.
LEGISLATIVE FRAMEWORK
The scheme of statutory benefits
The long title of the MAI Act reads as follows:
“An Act to establish a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents; and for other purposes.”
While the previous scheme had limited statutory benefits,[1] it was primarily a scheme of lump sum damages assessed at common law (albeit with restrictions). The “new scheme” in the MAI Act provides for the payment to persons injured in motor accidents in New South Wales of no-fault statutory benefits under Part 3 as well as the awarding of lump sum damages under Part 4. Statutory benefits in Part 3 include weekly income replacement type benefits pursuant to Division 3.3 and treatment and care benefits pursuant to Division 3.4.
[1] Under the Motor Accidents Compensation Act 1999 (MAC Act) s 47 provided for treatment expenses and lost earnings upon certain events occurring (such as reporting the accident to the police and lodging an accident notification form with the insurer up to 28 days after the accident) up to the sum of $5,000 according to s 51.
In terms of treatment and care benefits, s 3.24(1) of the MAI Act provides that an injured person is entitled to:
“… statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care …,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer … in order to accompany the injured person while treatment and care … is being provided.”
The phrase “treatment and care” is defined in s 1.4 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.”
Dispute resolution
In a statutory benefits claim, disputes can be resolved in accordance with Part 7 of the MAI Act by Merit Reviewers, Medical Assessors and Members of the Commission.
Schedule 2 to the MAI Act catalogues 47 declared dispute types to be either merit review matters, medical assessment matters or claims assessment matters. In the context of this dispute:
(a) Schedule 2(1)(i) permits a merit reviewer to determine disputes about the cost of treatment and care provided or to be provided to the claimant,
(b) Schedule 2(2)(b) allows a medical assessor to determine whether any treatment and care claimed, “is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident.”
(c) Schedule 2(3)(n) provides a Member of the Commission with power to determine “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.
The dispute between Mr Ganeson and Allianz is not about the cost of the supplements. Despite a request for information, no evidence has been provided about the cost of the supplements and whether in fact they have been purchased or not. What is in dispute is whether the supplements come within the definition of “treatment and care” and therefore whether they are payable as a statutory benefit. Neither Medical Assessors, Merit Reviewers nor Members have been given explicit power in schedule 2 to determine a dispute about whether something or some service is or is not treatment within the statutory definition. However, Members have been given power to determine any issue of liability for part of a claim for statutory benefits. This in my view permits me to determine whether something or some service is treatment and therefore whether the insurer may have a liability for it (subject to any medical assessment as to its reasonableness, necessity and relationship to the injuries or merit review as to its cost).
If I find the supplements are treatment within the definition, then the matter will be referred for medical assessment. If I find the supplements are not treatment, then the application will be dismissed.
BACKGROUND TO THE DISPUTE
Mr Ganeson’s Application for statutory benefits is dated 2 January 2024. The claimant was, at the time, 23 years of age. He will turn 25 later this year.
The claimant describes the accident and indicates he fractured his left middle finger, he fractured his left toe and sustained bruising on his hand and leg and surrounding parts of his body. He says he was taken to hospital and discharged the same day. He denies any previous accidents, illnesses or relevant conditions and notes his occupation as an Uber Delivery driver.
Dr Pankar, general practitioner (GP) wrote a medical certificate on 24 June 2024 which reads as follows[2]:
“Mr Rishirev Ganeson IS RECEIVING MEDICAL & SURGICAL TREATMENT for Fractured [left] middle finger & Fracture [left] Great toe & will be needing Surgery for the same. His CTP [Allianz] is undercompensating him weekly which he hardly manages to pay rent, thus [compromising] on food leaving him very under-weight & UNFIT for Surgery. His BMI = 14.7, & URGENTLY needs supplementary Nutrition as suggested 4 times / day.
Sustagen + Up & Go tetra packs as he wishes to alternate.”
[2] Some of the words in the certificate were capitalised. The words in square brackets replace abbreviations or correct typographical errors.
On 12 July 2024, Ms Grant, hand therapist treating the claimant’s fractured finger noted that on five occasions the claimant had attended treatment sessions without having eaten and has vasovagal (fainting) episodes as a result. She noted his weight at 40.8 kilograms and his height at 168cm and said he was “very underweight”. She asked the insurer:
“…for optimal tissue healing he must be adequately nourished otherwise his recovery will become protracted. Please consider supporting nutritional supplementation for the length of his recovery period.”
Other medical evidence about the claimant’s injuries has been provided however it is not necessary in my view to give details about it as it is not relevant to the statutory interpretation issue in these proceedings.
SUBMISSIONS
Insurer decision making
On 26 June 2024 an injury management specialist at Allianz wrote to the rehabilitation consultant working with the claimant concerning the request for supplements asking for additional information and saying, “This is ordinarily not something we would consider to fund, however if he is unfit for surgery then I may consider it for a finite period.”
The rehabilitation consultant responded advising he was unaware of any weight change but remarked that the claimant “had remained quite underweight throughout the claim.” The rehabilitation consultant said he had not been advised that the claimant was too underweight for the surgery.
On 1 July 2024 Allianz wrote to the claimant and declined the request for supplementary nutrition on the basis it “is not considered to be reasonable and necessary treatment and care in accordance” with the MAI Act.
On 16 July 2024, at the claimant’s request the insurer conducted an internal review affirming the previous decision. After summarising the evidence and citing the definition of treatment in the MAI Act the insurer says:
(a) the supplements are not treatment and care and more specifically are not “medical treatment (including pharmaceuticals)”;
(b) the legislation does not have a definition of medical treatment but the ordinary meaning is to be considered “in the context of injury and illness”;
(c) “medical” relates to medicine or treatment of an injury or illness and “treatment” relates to the use of therapies to cure a person;
(d) the supplements claimed are a food item and not medicine;
(e) Sustagen is not recognised or listed as medicine under the Australian Register of Therapeutic goods and is self-declared as “food for special medical purposes”;
(f) Up & Go is an everyday grocery food item, and
(g) the supplements are not medical treatment and not a type of treatment covered by s 3.24.
While the insurer had considered the supplements were not a form of treatment, the insurer went on to determine whether they were reasonable and necessary and related to the injury caused by the accident.
Allianz determined there was no evidence to suggest that the claimant’s weight had changed significantly since the accident and that he has not sustained an injury which would have caused his weight to change significantly. The insurer says the claimant has not been declared unfit for surgery due to his weight. The insurer says, “I am of the view that the request for food items is not related to treating any injury sustained as a result of the motor accident. Accordingly, the request is also not reasonable and necessary.”
While acknowledging “this may be a difficult time for you”, the insurer says that his financial situation is a separate matter and one which was the subject of a separate process. The insurer says it determined the claimant’s pre-accident weekly benefits and that decision has not been challenged.
Claimant’s submissions
The claimant’s original submissions lodged with the application argue:
(a) the claimant has been focused on his rehabilitation and recovery;
(b) his doctor has recommended the treatment;
(c) the insurer has denied the treatment and has made no efforts to clarify why it was required;
(d) the objects of the act include “to encourage early and appropriate treatment care to achieve optimum recovery of persons from injuries … and maximise their return to work” and “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.”
The remainder of the submissions deal with whether the supplements are reasonable and necessary and related to the accident and criticises the insurer’s decision making.
The claimant did not address the issue of the definition of “treatment and care” in these submissions.
Insurer’s submissions
The insurer says at [1.3] that the real dispute in the proceedings is whether the supplements are treatment and care and that this should be heard first before the matter is referred to a medical assessor.
The insurer says at [2.1] that s 3.24 provides for statutory benefits for the reasonable cost of treatment and care and at [2.2] cites the definition of treatment and care. The insurer says at [2.3] that the supplements are common food items which can be purchased from a supermarket.
The insurer notes at [3.1] that there are no pre-accident medical records or reports and at [3.2] that the claimant disclosed a three-week period in October and November 2023 where he was not working and recovering from a previous accident.
The insurer details the medical evidence. The insurer notes at [3.25] that on 17 July 2024, the claimant had the surgery that was the subject of the medical certificate from Dr Pankar. The insurer says there have been no complications from that procedure.
The insurer addresses Dr Pankar’s assertion in the medical certificate that the claimant has been “undercompensated” saying that Allianz has met its obligations, calculated the claimant’s pre-injury average weekly earnings (PAWE), and has not been asked for any hardship payment.
Preliminary teleconference
On 2 December 2024 I held a teleconference with the legal representatives of the parties. A report of the teleconference was issued on the same day and a timetable set for the determination of the dispute.
The report noted:
(a) there is no legislative basis for “hardship payments” and unlike the previous scheme[3], the MAI Act does not impose a duty on insurers to alleviate financial hardship;
(b) in respect of the phrase “medical treatment”, the preliminary view was that if a medical practitioner advised a claimant to have treatment such as physiotherapy or osteopathy that allied health treatment would be treatment even though it is not performed by the medical practitioner who refers the claimant or recommends the treatment;
(c) “pharmaceuticals” is not defined in the MAI Act and queried whether that is a reference prescription medication only noting that some painkillers do not require a script and can be purchased in a supermarket;
(d) other items which may come within the scope of the word “pharmaceuticals” which might not be considered as such would be Bio Oil which may be rubbed into scars, Metamucil to alleviate constipation as a result of taking pain killing medication following an accident and Band-Aids or bandages;
(e) s 1.4 contains a finite list of 11 things that are treatment. There is no “including” to suggest other things can be brought into the definition, other than by regulation.
[3] Section 84A of the MAC Act.
Additional information was requested about what Sustagen and Up & Go are, and what they are used for.
I directed the claimant to provide additional submissions and the insurer to provide any final submissions and set a date for the delivery of reasons.
Claimant’s additional submissions
The claimant identifies at [3]-[6] the issue of whether the supplements fall within s 3.24 of the MAI Act and the definition of treatment contained in s 1.4 and says that supplementary nutrition does fall within the definition of “treatment and care” explaining:
(a) the claimant lives along in a boarding house;
(b) the need to supplementary nutrition arose after the accident “in the context of [his] need to obtain healthy nutrition for his recovery”;
(c) an activities of daily living report dated 10 January 2024 states that the claimant depends on friends and family to provide food and he “has been unable to maintain a healthy nutrition level which is preventing the recovery of his accident-related injuries”, and
(d) the need for the supplements is causally related to the accident.
The claimant repeats at [6] that the supplements fall under the definition of treatment and care.
Insurer’s further submissions
The insurer says at [2.2], [2.3] and 2.4] that while the claimant submits the supplements come within the definition of treatment and care, the claimant’s submissions do not engage with the issue and explain why or how they come within the definition.
The insurer also observes at [2.5] that the claimant has not confirmed whether the Sustagen & Up and Go have been purchased.
The insurer submits in respect to the issues raised in the preliminary conference report:
(a) that Band-Aids and bandages would fall within the definition of “aids and appliances” as would slings, crutches, wheelchairs [2.8];
(b) the relevant criteria for determining whether a product is “medical treatment” or a “pharmaceutical” would include accessibility to the product, contents of the product, as well as labels and warnings on the product [2.9];
(c) Metamucil is a pharmaceutical being a form of laxative medication and notes the labelling includes clear directions for use, dosages, frequency of consumption, health warnings and declarations. The insurer includes a photograph of the label for that product [2,11];
(d) Bio Oil is not medical treatment or a pharmaceutical but a cosmetic product (quoting an explicit statement on its website) and there are no warnings, restrictions or details of side effects on its labels. The insurer included photographs and screen shots of the website and the label [2.12]-[2.13] and says at [2.14] while Bio Oil may be recommended by medical practitioners, it would fall outside the definition [2.14];
(e) applying the same approach the insurer provides photographs of the labelling for Up and Go at [2.16] and Sustagen [2.17] and says at [2.18] that neither product offers any health warnings, suggests restrictions or consumption of the product on the labels and at [2.19] that they are:
“merely food products that are marketed to support general health and energy levels, and which can be taken by anyone with no possible risk of adverse consequences.”, and
(f) just because a doctor recommends a product does not automatically bring it within the definition of treatment [2.20]. The insurer gives the example [2.21] of a person who is iron deficient and it may be recommended by the doctor that they consume more iron rich foods such as red meat; but says at [2.22] if a claimant submitted their grocery bill to the insurer the red meat purchased would not be considered “medical treatment,” The insurer then recognised at [2.23] that iron supplement tablets would be a pharmaceutical product for which statutory benefits would be payable for a person with low iron as a result of their accident. Because iron supplements would include on their label active ingredients, warnings, clear directions for us and so on. No photograph of an iron supplement label was provided.
The claimant was offered the opportunity to respond to anything raised in the submissions, but the claimant declined.
HOW IS THE STATUTE TO BE CONSTRUED?
General approach to statutory construction
There is a dispute in this matter about the interpretation of the phrase “treatment and care” and in particular “medical treatment (including pharmaceuticals)” and whether it extends to cover the supplements recommended by the claimant’s treatment providers. The definition is not, in my view, straightforward and it is not clear to me whether the supplements are a form or treatment or not.
The majority in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT)[4] said that the task of statutory interpretation begins and ends with a consideration of the text itself. Chief Justice French described the starting point as “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose.”
[4] (2009) 239 CLR 27 at 46, the majority being Justices Hayne, Heydon, Crennan and Keifel.
The context and purpose of a legislative instrument requires consideration of the whole of the statute[5] which is also a requirement of s 33 of the Interpretation Act 1987 which requires the adoption of a construction “that would promote the purpose or object underlying the Act …” over a construction that would not. Section 1.3(3) of the MAI Act also requires the interpretation of provisions or regulations to adopt a construction which promotes the objects of the MAI Act.
[5] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].
The Macquarie Dictionary[6] defines treatment as “the act or manner of treatment” or “the application of medicines, surgery, psychotherapy etc to a patient to cure a disease or condition” and the example is given of asthma treatment.
[6] Fifth Edition first published in 2009.
The Macquarie Dictionary records two definitions of the adjective “medical” as follows:
(a) “of or relating to the science or practice of medicine,” or
(b) “curative; medicinal; therapeutic.”
The definition of “medical” suggests a narrow interpretation of the term “medical treatment” that is treatment provided by those who practice medicine. However, the second interpretation is wider and suggests the term is open to any health care practitioner providing curative, medicinal or therapeutic treatment. Either of these interpretations could be the ordinary sense of the phrase and to ascertain which a consideration of the purpose and context of the definition is necessary.
The objects of the MAI Act
The objects of the MAI Act are set out in s 1.3 and commence at sub-s (1) by stating that:
“…this Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents.”
Section 1.3(2) includes the following objects:[7]
(a) to encourage the provision of early and appropriate treatment and care, to optimise an injured person’s recovery and maximise their return to work;
(b) to provide financial support early and on an ongoing basis;
(c) to continue a scheme of compulsory insurance;
(d) to keep premiums affordable by regulating profits and “by limiting benefits payable for soft tissue injuries and psychological or psychiatric injuries that are not recognised illnesses”;
(e) to promote competition and innovation between insurers;
(f) to deter fraud;
(g) to encourage the early resolution of claims and the “quick, cost effective and just resolution of disputes”, and
(h) to ensure the collection and use of data.
[7] Summarised and not verbatim.
Section 1.3(3) provides that “it must be acknowledged in the application and administration of this Act” that:
(a) participants have “shared and integrated roles” to benefit all compulsory insurance holders by “keeping the overall costs of the scheme within reasonable bounds” to keep premiums affordable and to promote the recovery and return to work of injured persons;
(b) that the law relating to the assessment of damages should be interpreted and applied to give effect to the stated intention of restricting access to non-economic loss;
(c) that the premium pool is finite, premiums setting requires stability and predictability which requires “consistent and stable application of the law”, and
(d) that insurer’s should account for their profits.
Justice Griffiths in Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi[8] observed at [16]:
“The plaintiff insurer places particular emphasis on the third of [the] objects. That particular object is unquestionably relevant, but given that all the stated objects reflect a range of conflicting or competing purposes, it is important to avoid permitting a purposive approach to dominate and drive the task of statutory construction, at the expense of considerations of text and context.”
[8] [2024] NSWSC 1245.
While the first object (s 1.3(2)(a)) is clearly relevant to the interpretation of what is or is not treatment and care within the statutory definition, the fourth object is also relevant. Section 1.3(2)(d) concerning the affordability of the scheme is also relevant as the legislation is concerned about regulating insurer profits and the limiting the benefits available to persons with threshold injuries. It should be noted that Mr Ganeson has sustained two fractures and therefore has more than threshold injuries. These competing or balancing objects are referenced in s 1.3(3)(a) which acknowledges the need to keep premiums affordable and the need to treat and rehabilitate injured persons.
Legislative history
The current scheme of insurance and compensation is the fifth iteration of such a scheme. The first, contained within the Motor Vehicles (Third Party Insurance) Act 1942 (MV (TPI) Act established the Government Insurance Office[9] as the statutory, government owned and operated third-party insurer.
[9] While abbreviated to GIO, I will refer to it in full to distinguish it from the current entity which is a corporate entity and part of the Suncorp family of insurers.
That Act has, in s 24, an “interpretation” section which includes the phrase “medical treatment.” This does not define what medical treatment is or might be, but provides that it “does not include treatment” provided to a patient in a public hospital or by a resident medical officer of such a hospital. There is a definition of “nursing” which includes “treatment by a registered nurse” and “massage treatment” which means “massage rendered by a person who carries on the profession of a masseur.” There is no definition of dental treatment or treatment generally in this section.
The context of that provision was in respect of the direct payment by the Government Insurance Office under s 25 of expenses incurred for treatment as an in-patient or outpatient at a public or provide hospital, ambulance transportation and:
“Reasonably necessary medical treatment by a legally qualified medical practitioner, … massage treatment by a masseur, … dental treatment … by a registered dentist …. nursing by a registered nurse …”
Section 25 refers throughout to the treatment provided to the person who sustained a bodily injury in the accident or treatment of the person[10].
[10] There was a definition of bodily injury in s 5(1) which included damage to “crutches, artificial members, eyes or teeth, other artificial aides or spectacle glasses.”
The Motor Accidents Act 1988 (the MA Act) introduced a definition of “personal or bodily injury” which included pre-natal injury and psychological or psychiatric injury. The MA Act provided for private insurance, repealed the no-fault TransCover scheme and restored common law rights.[11]
[11] Part 2.
The MA Act included Part 4 which is entitled “Rehabilitation” which included (s 34A) objects recognising the important of early and appropriate rehabilitation (defined in s 35), a requirement (s 36) for insurers to provide rehabilitation services promptly and so on. Section 39A of the MA Act repeated the definitions of “massage treatment” and “medical treatment” from the MV (TPI) Act and also provided for the payment by insurers of payments direct to the treatment providers (s 39C).
The MAC Act continued the scheme of private (compulsory) insurance, provisions relating to claims, the award of damages (with restrictions) and limited no-fault benefits. The MAC Act maintained in s 3 the definition of injury from the MA Act. The objects of this Act (s 5(1)) also recognised the importance of early and appropriate treatment rehabilitation.
Within Chapter 3 relating to “motor accident injuries”, s 42 defined “treatment” for the purposes of that chapter as meaning:
(a) medical treatment, or
(b) dental treatment, or
(c) the provision of rehabilitation services, or
(d) the provision of attendant care services, or
(e) the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses, whether or not at a hospital.
The definitions section, s 3, defined attendant care services and rehabilitation for the whole of the Act not just Chapter 3.
Part 3.1 of the MAC Act empowered the Authority[12] to issue Guidelines concerning the provision of treatment and care and Part 3.2 provided for the early payment for treatment and lost earnings up to $5,000 on a no-fault basis. In that part there was also a definition of treatment expenses which was:
“Expenses incurred in connection with the treatment of an injured person, including hospital, medical, pharmaceutical and rehabilitation expenses, but not including attendant care expenses.”
[12] Originally the Motor Accidents Authority but now the State Insurance Regulatory Authority.
Part 3.3 provided for bulk billing arrangements between the Authority and hospitals, ambulance or other entities as well as the setting of rates for payment of “medical or dental treatment or rehabilitation services” provided to injured persons.
Part 3.4 of the MAC Act established the medical assessment service and the assessment of medical assessment matters including matters about “whether the treatment provided or to be provided to the injured person” was reasonable and necessary in the circumstances or related to an injury caused by the accident.
Importantly the MA Act imposed a duty on insurers to do all things reasonable and necessary to rehabilitate the injured person[13] and to make payments for “hospital, medical and pharmaceutical expenses” rehabilitation, respite care and attendant care expenses. The words hospital, rehabilitation and attendant care were included in the definitions s 3, “medical expenses”, “pharmaceutical expenses” and “respite care” were not defined.
[13] Section 84 of the MAC Act.
Other legislation and statutory schemes
Section 60 of the Workers Compensation Act 1987 provides for the payment of treatment in relation to injuries at work and defines “medical or related treatment” to include the following:
“(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(c) (Repealed)
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,
(f1) domestic assistance services,
(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h) treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.”
In the Commonwealth Comcare system, “Medical treatment” is defined in s 4(1) of the Safety Rehabilitation and Compensation Act 1988 to mean:
“(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner;
(c) dental treatment by, or under the supervision of, a legally qualified dentist;
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance;
(g) treatment and maintenance as a patient at a hospital;
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise, or
(i) any other form of treatment that is prescribed for the purposes of this definition.”
The provisions defining treatment in the MAC Act and the other schemes mentioned above appear to be providing boundaries or limits to the sorts of things that insurers are to have a liability to pay for.
In the workers compensation scheme the list of treatment types is not finite (due to the word “includes”) and is considerably clearer (in my view) providing for “medical or related treatment” and therapeutic treatment directed by a medical practitioner. The phrase “medicines, medical and surgical supplies” seems to be clearer and possibly wider than the word “pharmaceuticals”.
The Comcare scheme’s definition is similar to that of the workers compensation scheme allowing for medical treatment or “therapeutic” treatment obtained where the medical practitioner directs it.
Medical practitioner versus health practitioner
The provisions of the Health Practitioner Regulation National Law[14] (The National Law), recognise “health practitioners” as individuals who practice in one of 16 health professions. Separately recognised and regulated are the professions of, medical, dental, Aboriginal and Torres Strait Islander health practitioners, Chinese medicine practitioners, chiropractors, medical radiation practitioners, midwives, nurses, occupational therapists, optometrists, osteopaths, paramedical practitioners, physiotherapists, pharmacists, podiatrists and psychologists.
[14] Applied and modified as a law of NSW by the Health Practitioner Regulation (Adoption of National Law) Act 2009.
A medical practitioner under this Act is a member of the medical profession which is limited to medical doctors including general practitioners and specialists. Of note, chiropractors are not medical doctors but are permitted to use the title “doctor” through their national registration and regulatory body.
Within the MAI Act there are two provisions that refer to “health practitioners” as follows:
(a) s 7.52 restricts health practitioners who may give evidence in Court or Commission proceedings under the Act and adopts the meaning of health practitioner from the National Law to the section. Under sub-s 1(a) a “treating health practitioner of the injured person” is authorised to give evidence[15], and
(b) s 8.4 provides a regulation making power with respect to the maximum fees chargeable by “health practitioners” for reports or appearing as a witness. This section does not mention the National Law. Regulation 19 of the Motor Accident Injuries Regulation 2017 (the Regulation) does apply the National Law to the costs provisions.
[15] See also regulation 18 of the Motor Accident Injuries Regulation 2017 and the restriction of authorised health practitioners to medical assessment matters.
It should also be noted that s 8.9 of the MAI Act provides a regulation making power to enable the setting of maximum fees payable by insurers for treatment and care not provided at hospitals (including private hospitals) and provides the Motor Accident Guidelines can also set an appropriate allowance for fees.[16] The relevant regulation (regulation 34) adopts the Australian Medical Association’s, List of Medical Services and Fees as the maximum amount payable for treatment and care “provided to an injured person by a health practitioner.” It is likely that publication could only apply to treatment provided by members of the medical profession (the AMA being a professional body for doctors) and the Guidelines do not appear to regulate the fees of any other health practitioners.
CONSIDERATION OF THE ISSUES
[16] The Australian Medical Association (AMA) List is free of charge to members of the medical profession, is published on the AMA’s website but is not otherwise available to members of the public or decision makers in the motor accident compensation schemes. Whether it applies to practitioners in any of the National Law’s other recognised health professions is not known.
What is the purpose and context of the definition of treatment and care?
When all the above is considered, in my view, the purpose and context of the MAI Act is to provide a scheme of compulsory insurance that is amongst other things affordable and a scheme of benefits and compensation that amongst other things provides early and appropriate treatment and care to injured person.
The definition of treatment provides a list of 11 things that are treatment, with a regulation making power to:
(a) include “such other kinds of treatment, care, support or services as may be prescribed by the regulations for the purposes of this definition”, and
(b) not include “any treatment, care, support or services of a kind declared by the regulations to be excluded from this definition”.
I have not been taken to, and I am not aware of any regulation which includes or excludes any particular form of treatment from the definition.
There is no scope for a decision maker to depart from the list by adding things to it. Individual things or services must come within the definition, or they cannot be compensated in the statutory benefits scheme.
The purpose and context of the definition then is, in simple terms to provide boundaries. By specifying what is treatment, it will assist in keeping the scheme affordable because the list is finite, it is stable and predictable. But it is also a definition that must be interpreted in a way that allows 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.
There are other provisions that provide checks and for the balancing of affordability, namely the medical assessment process which operates to limit an insurer’s liability to pay for what is related treatment that is reasonable and necessary and the merit review process which restricts payment of expenses to a reasonable cost.
In my view the definition of treatment and care when looked at in this way suggests the wider interpretation of “medical treatment” in terms of any treatment of a medical, therapeutic or curative nature rather than treatment provided only by medical practitioners.
What possible type or category of treatment are nutritional supplements?
The claimant mentions in his submissions only two of the 11 types of treatment listed in the definition namely medical treatment and aids and appliances. The insurer submits that the only possibility for the supplements to be considered a statutory benefit would be as a form of “medical treatment (including pharmaceuticals).”
I am of the view that nutritional supplements are not a form of aids and appliances. Those are things of an external nature and not consumables and would include things the insurer has identified such as crutches or bandages or wheelchairs.
I am of the view that the only possible type or category of treatment listed in the definition that could apply to the supplements is “medical treatment (including pharmaceuticals).”
What does “medical treatment (including pharmaceuticals)” mean?
The words “including pharmaceuticals” suggests the involvement of one of the other health professions recognised by the National Law, that is pharmacists. The Macquarie Dictionary definition of “pharmaceutical” is “relating to pharmacy” or “an item, especially a medicine, sold at a pharmacy.” The dictionary definition of medicine is wide indeed, “any substance or substances used in treating disease; a medicament; a remedy.”
The insurer appears to concede that the term “pharmaceuticals” is not limited to medication which can only be purchased with a script or products that can only be purchased in pharmacies. In my view the words “including pharmaceuticals” would include medication and other remedial or therapeutic substances sold at pharmacies but does not exclude medication or substances that can be purchased elsewhere.
As has been indicated earlier, there are two possible interpretations of “medical treatment”. The first is a narrow interpretation of treatment provided by medical practitioners. In the context of the National Law that would restrict medical treatment to doctors (for physical injuries) and psychiatrists (for psychological injuries). The second and wider interpretation would be for all forms of treatment designed to address and provide therapy for an injury or condition caused by the motor accident.
When the MA Act came into force in 1988, the legislation recognised for the first time psychological or psychiatric injuries as distinct from bodily injuries. However, the definition of treatment was never amended, for example, to recognise psychologists as treatment providers distinctly and separately from medical professionals (which would include psychiatrists), dentists and masseurs. When the National Law was passed in 2009, the MAC Act retained its inclusion of medical and dental treatment but did not identify any of the other professions whose members regularly provide treatment to persons injured in car accidents (such as physiotherapists). While the MAI Act acknowledges the National Law and its relevance to health practitioner costs, fees and ability to give evidence, it does not reflect the terminology of the National Law in all areas including the definition of treatment or treatment providers.
It is not clear why “medical” and “dental” have been singled out for mention in the definition other than because they were specifically recognised in the 1942 legislation and they would have been at that time regarded as two quite separate and distinct professions. The inclusion in the 1942 legislation of massage treatment and masseurs likely reflects the historical fact that the Australian Massage Association begin in 1906 but physiotherapy, osteopathy and chiropractics for example were not recognised or regulated until much later.[17]
[17] The University of Queensland offered the first degree in physiotherapy in 1938, osteopathy was first recognised as a health profession in 1991and the Chiropractors Registration Act was passed in 1978.
The phrase “dental treatment”, if given its ordinary meaning would appear to cover both treatment from a dentist and treatment to dentition (teeth) from persons other than dentists. The latter would clearly cover orthodontic, prosthodontic or periodontic treatment because they are a form of specialist dentistry. It might also mean that treatment provided to an injured person’s teeth by a dental nurse would also be covered.
In Insurance Australia Limited t/as NRMA v Scott[18] the Court of Appeal was considering a dispute about gratuitous domestic assistance claimed under the MAC Act. The dispute had been determined as a medical assessment matter and the claimant sought to set aside the medical assessment certificates on the basis that gratuitous or voluntary assistance was not “treatment” for the purposes of s 58 of the Act. 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.”
[18] [2016] NSWCA 138
While that case involved a dispute relevant only to the assessment of damages, the comment about professional services to me supports an interpretation of “medical treatment” that suggests the wider form not narrowed and restricted to treatment provided by medical professional practitioners.
In my view then, the phrase “medical treatment (including pharmaceuticals)” is not restricted to only treatment provided by health practitioners who are medical professionals (doctors). The meaning of “medical treatment (including pharmaceuticals)” is a reference to health care provided by health care providers or health care practitioners to an injured person to manage or treat their injuries along with medicines and substances available from a pharmacy or elsewhere. In other words, medical treatment is treatment of a medical nature (in terms of therapy, healing or recovery) not limited to the profession or practice of medicine.
Are supplements “medical treatment (including pharmaceuticals)”?
The insurer’s submissions have been most helpful, in particular the insurer’s submissions concerning Bio Oil, Metamucil and iron supplements.
The insurer suggests Bio Oil is not treatment because it is a cosmetic not medical product. The insurer’s photograph of the label for Bio Oil includes that it is, “Specialist scar and stretch mark product” and that it “Helps improve the appearance of both new and old scars.”
I note the warnings and associated information on the Metamucil packaging and the insurer’s concession that it is a form of laxative medication that could be taken by an injured person suffering from constipation due to pain killing medication and would be a statutory benefit.
The insurer’s example of iron supplements for someone with low iron as a result of their accident-related injuries was also helpful. The insurer says that if the doctor recommends simply eating more red meat, then that would not be a claimable statutory benefit. The insurer says however the doctor recommending an injured person take over the counter iron supplements would bring the iron supplements within the scope of the legislation.
While I agree with the insurer that what the product is, what its contents contain, where it can be obtained and the labelling and warning on the product is relevant. But this product-centric approach is not in my view the answer to the question, and I consider it is important to consider the claimant’s injury, the terms of the medical recommendation and the context of what is being recommended.
If those injured person focussed matters are considered, then:
(a) Bio Oil is a form of treatment for someone with accident-related scars who is concerned about the look of the scars and in circumstances where their doctor recommends it;
(b) Metamucil is a form of treatment for someone with constipation caused by the accident who is advised to consume it, and
(c) iron supplements are also a form of treatment for someone with low iron related to the accident caused injuries.
The label on an Up & Go packet provided by the insurer refers to it as a “Chocolate flavoured beverage”. The ingredients are listed as water, skim milk powder and other things including plant fibre and soy protein. It is noted as a “formulated supplementary food … intended to supplement a diet which may be low in energy or vitamins and minerals.” It is clearly a manufactured substance (according to the label it is made in Australia).
The label on Sustagen includes details of its ingredients (62% mild solids, corn syrup solids, sugar, whole milk powder, cocoa powder (4%) and various added minerals and flavours. It is described as “formulated meal replacement. Can assist where dietary intakes of nutrients and energy may not be adequate.”
The label goes on to say:
“Whether you are recovering from illness or managing a busy life, good nutrition is always important. A balance of essential nutrients … helps maintain your wellbeing. Sustagen Hospital Formula has been specially designed by experts for a range of life-stages when your nutritional needs may be higher or when you may not be getting the nutrition you need from food.”
Sustagen is also a manufactured food but which, according to the label, is made in Germany.
In Mr Ganeson’s case while the supplements are a food readily available in supermarkets, they are not naturally occurring foods (like red meat for an iron deficiency would be). Sustagen and Up & Go are manufactured products. The labels indicate they are a special food formulated to supplement diet and nutrition. In Mr Ganeson’s case they have been recommended for someone who is seriously underweight and who has been advised to improve their nutrition prior to surgery.
The time factor is, in my view relevant. The request was made at the end of June, the surgery was scheduled for three weeks later, the certificate from Dr Pankar made it clear that the supplements were necessary in this three-week period in the lead up to surgery, in other words his medical opinion was that there was some specificity and urgency to it. Ms Grant was not saying the supplements were needed for ever. She also made it clear that the claimant’s recovery time would improve if his nutrition was supported.
The evidence from these two health practitioners is that because of the impending surgery and in order to ensure his early recovery from that surgery was that he improve his nutrition by taking a supplementary food product. It is the recommendation from his treatment providers that in my view brings what would ordinarily be a product that is not necessarily treatment with the scope of the definition of medical treatment.
I am therefore of the view that based on the facts and circumstances of this case, and in particular the association with the surgery, the supplements (Up & Go and Sustagen) are a form of treatment.
Whether they are related to the injuries caused by the accident (and the surgery on 17 July 2024) or whether they are reasonable and necessary in the circumstances (assuming they were purchased and paid for and consumed in the lead up to that surgery and while the claimant recovered) is not a matter for me to determine but for a Medical Assessor who is tasked with the resolution of that dispute.
CONCLUSION
Next steps
As I am of the view that the supplements in dispute are a form of treatment, it remains whether that treatment is reasonable and necessary in the circumstances and related to the injury caused by the accident. That is a medical assessment matter.
I request the Commission arrange for the dispute to be referred to a Medical Assessor for assessment. The claimant may wish to confirm whether the claimant purchased the supplements (and the cost) and for how long he took the supplements in order that the parties can consider resolving the dispute before any medical assessment takes place.
Costs
The claimant had requested costs of the proceedings. The insurer was asked whether it conceded the claimant was entitled to costs. The insurer did concede that the claimant’s solicitor should be entitled to the maximum professional costs and that it had no details of any disbursements claimed. The claimant has not provided any invoices or receipts for any disbursements paid and it does not appear from my review of the file that there are likely to be any. Noting the insurer’s concession, I assess the claimant’s costs at $1,992 plus Goods and Services Tax.
0
5
0