TPD claims and the rules around medical treatment: what you need to know

What is a medical treatment clause?

Every policy is different, but a medical treatment clause defines what kind of treatment you are required to get under your insurance policy. This could be that you:

• Have undergone all reasonable treatment recommended
• Are under the care of a regular general practitioner
• Are under the care of a specialist physician
• Meet all of the above

Are medical treatment clauses common in insurance policies?

Medical treatment clauses started out in income protection policies, but in recent years have become industry standard in both Income Protection and Total and Permanent Disability Insurance definitions.  

Why do medical treatment clauses exist?

Insurers want to make sure anyone with an injury or illness takes all reasonable steps to get better and return to work, which in turn means the fewer payouts for the insurer. That’s why these clauses are now drafted so that the person claiming must prove that they satisfy the medical treatment requirements, rather than the insurer having to prove they don’t.  

Who is affected by medical treatment clauses?

The best way to prevent these clauses from impacting a successful claim is to seek and obtain medical care early, and on a regular ongoing basis.

However, that’s not always realistic or possible, especially in insidious mental health claims, where people may not seek medical help at all for months, or even years due to a lack of understanding, or embarrassment about their condition. 

It can also impact people who:

• Cease work due to a variety of symptoms that takes a long time to diagnose.  For example, Chronic Fatigue Syndrome (CFS) or other autoimmune conditions
• Cannot afford the treatment recommended, such as a specialist consultation or the treatment itself, such as a surgery or rehab outside of the public health system
• Don’t wish to pursue the treatment recommended, for a range of reasons including religious belief or legitimate fear that a risky treatment will cause harm
• Have their employment terminated for workplace misconduct or poor performance, only to have it recognised down the track that these problems were due to a then undiagnosed injury or illness.  

Are there ways to get around medical treatment clauses?

In some cases, we can prove with medical evidence that even if treatment had been sought earlier or a recommended treatment had been complied with, that it would not have caused enough of an improvement that the person was able to return to work.

An example is the case of Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107.  Here the court was considered whether a man could have his disability pension cancelled on the grounds that he unreasonably refused a surgery which may have improved his work capacity.

The court found that if “the man could only be cured by a treatment that was objectively reasonable but not actually available to him because of fear or other genuine reason, that a Tribunal would find that the man was permanently incapacitated for work under the Act.”

As for what constitutes reasonable medical treatment, although every matter depends on its own facts, the New South Wales Supreme Court has held that two to three visits to a doctor per year were sufficient for the claimant to be under the ‘regular care’ of his medical practitioner (Source: White v The National Mutual Life Association of Australasia Limited [2003] NSWSC 1209 at [128])

We’re here to help

If you have lodged a claim for TPD or Income Protection and are concerned that your medical treatment could be an issue, our experienced team are ready to help. We have run many claims for insurance and know how the system works. Contact us to find out what your legal options are.