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Home | Blog | Warn v Flight Centre Ltd [2016] NSWWCC 253

Facts

On January 2006, a sales consultant (herein the plaintiff) employed by Flight Centre, suffered serious injuries at a work conference held in Sydney. At the conference, the plaintiff was assaulted with a cricket bat by an unknown youth, and as a result suffered significant head trauma. The plaintiff was conveyed to St Vincent’s Hospital by ambulance and underwent surgical treatment. She has since undergone several further procedures.

On 19 September 2012, a finding of 50% whole person impairment was made.

In mid-to-late 2014, the plaintiff consulted a specialist by the name of Dr Vickers, who suggested that she would be a good candidate for stem-cell therapy to relieve her chronic pain. The doctor suggested umbilical cord blood, and the plaintiff subsequently had her fourth child in April 2016. The cord and its tissue were frozen to be used in the stem cell therapy, unfortunately however, it was not at the required level to be used in the procedure.

Accordingly, the plaintiff made a request to the insurer, on the advice of Dr Vickers, to undergo stem cell therapy, which was denied. The matter proceeded to Arbitration at the Workers Compensation Commission.

Issues

The issue before the Arbitrator Elizabeth Beilby, was whether the “proposed stem cell therapy treatment is “reasonably necessary treatment within the meaning of Section 60 of the Workers Compensation Act 1980 (NSW).”

The Arbitrator also considered the established legal principles from the case of Bartolo v Western Sydney Health Services [1997] 14 NSWCCR 233, which were confirmed in the case of Diab v NRMA Limited [2014] NSWWCCPD 72. These cases held, that the treatment must be reasonably necessary, considerations which include, but are not necessarily limited to, the appropriateness, availability, potential effectiveness and cost of the treatment.

Flight Centre argued that the proposed treatment was experimental, and the plaintiff had not undergone all other modalities of treatment. The Arbitrator found however, based on the opinion of Professor Reeves, that she had undergone an extensive array of treatments.

Arbitrator Bielby found in this case, that although the treatment can be described as ‘novel’, there was a real chance the plaintiff may obtain some relief. This followed the precedent that the treatment does not need to be a complete cure. Weighing the treatment’s probability of success, against the plaintiff’s pain and symptoms, the Arbitrator deemed the stem cell therapy was reasonably necessary, and Flight Centre was required to meet the costs of such treatment.

Impact on our practice

The effect of this decision, highlights the ability of injured workers to obtain treatment, which they may not necessarily believe that they are entitled to. At Turner Freeman Lawyers, we specialise in personal injury law, and have a proven track record of obtaining the best outcome for our client’s. If you have been injured or had an accident at work, don’t hesitate to contact us today on 13 43 63, for a free case assessment. In addition to this, we offer our clients a ‘No Win-No Fee‘ policy for all personal injury matters, conditions do apply.

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