Bishop v Qantas Airways Ltd - [2024] NSWPIC 703

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bishop v Qantas Airways Ltd [2024] NSWPIC 703
APPLICANT:	Bradley Bishop
RESPONDENT:	Qantas Airways Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	16 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); claim pursuant to section 60 for the costs of left shoulder pyrocarbon hemi-arthrosplasty; respondent disputed liability as the prosthetic device proposed to be used in the surgery was not listed on the Department of Health Prostheses List, and therefore it was unable to determine that the proposed surgery was reasonably necessary; applicant maintained that clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 is ultra vires the 1987 Act; consideration of McEldowney v Forde, Watson v Marshall, Day v Harness Racing New South Wales, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, Project Blue Sky Inc v ABA, and Pelama v Blake; Held – clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 is not ultra vires the 1987 Act; sections 62(6) and 62(6A) of the 1987 Act apply to allow direction that additional amount payable; award for the applicant for the costs of surgery as claimed.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 for the cost of left shoulder pyrocarbon hemi-arthroplasty, as recommended by Dr Wade Harper, and costs incidental to the surgery.

STATEMENT OF REASONS

BACKGROUND

The applicant, Bradley Bishop (Mr Bishop) was employed by the respondent, Qantas Airways Ltd (Qantas), as a baggage handler.
Mr Bishop sustained injury to his left shoulder and neck while connecting a tow bar to the back of a utility vehicle on 15 October 2020.
On 6 June 2024, the applicant’s treating orthopaedic surgeon, Dr Wade Harper, requested that Qantas approve proposed surgery to the applicant’s left shoulder, that is, hemi-arthroplasty.
On 17 June 2024, Qantas, which is self-insured, issued the applicant with a notice pursuant to s 78 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
Qantas disputed liability for the proposed surgery because Dr Wade had provided a quote for the use of a prosthesis, being an Aequalis pyrocarbon humeral head, which was not TGA (Therapeutic Goods Association) approved, and was not listed on the Department of Health Prostheses List (the Prostheses List).
Qantas referred to the gazetted Workers Compensation (Private Hospital Maximum Rates) Order 2024 (the Order); and s 62(1A) of the Workers Compensation Act 1987 (the 1987 Act). As the requested prosthesis was not on the Prostheses List, Qantas was unable to determine that the proposed surgery was reasonably necessary.
The applicant lodged an Application to Resolve a Dispute (the Application) on 26 July 2024.
The applicant claimed that on 15 August 2020, he sustained left shoulder and neck injuries while connecting a tow bar to the back of a ute. In the alternative, the incident had resulted in aggravation, acceleration, exacerbation, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 703
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the case of Bishop v Qantas Airways Ltd, the applicant, Mr Bishop, sought compensation under the Workers Compensation Act 1987 for the costs of a left shoulder pyrocarbon hemi-arthrosplasty. The respondent, Qantas Airways Ltd, disputed the claim on the basis that the prosthetic device proposed for the surgery was not listed on the Department of Health Prostheses List. Consequently, the respondent argued it could not be determined that the surgery was reasonably necessary. Mr Bishop contended that clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 was beyond the powers of the Act. The court was required to determine the validity of clause 8 and whether it was permissible under the 1987 Act to direct payment for the proposed surgery.

The court examined the relevant statutory provisions and precedent cases, including McEldowney v Forde, Watson v Marshall, Day v Harness Racing New South Wales, Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue, Project Blue Sky Inc v ABA, and Pelama v Blake. The analysis focused on the scope of the Act and the authority to enact regulations under it. The court found that clause 8 was not beyond the powers of the 1987 Act. It relied on sections 62(6) and 62(6A) of the Act, which allow for the direction of an additional amount payable for medical services. The court held that these sections provided the necessary authority for the regulation in question.

Accordingly, the court ruled that clause 8 of the Workers Compensation (Private Hospital Maximum Rates) Order 2024 was valid and that the applicant was entitled to compensation for the costs of the surgery as claimed. The court's decision allowed the applicant to recover the expenses for the left shoulder pyrocarbon hemi-arthrosplasty, as the prosthetic device, while not listed, was deemed reasonably necessary under the circumstances.

Orders