Bannewari v North Metropolitan Health Service (Sir Charles Gairdner Hospital) - [2023] WADC 104

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BANNEWARI -v- NORTH METROPOLITAN HEALTH SERVICE (SIR CHARLES GAIRDNER HOSPITAL) [2023] WADC 104
CORAM:   PALMER DCJ
HEARD:   24 AUGUST 2023
DELIVERED          :   6 SEPTEMBER 2023
FILE NO/S:   APP 13 of 2023
BETWEEN:   VIKRAM BANNEWARI
Appellant
AND
NORTH METROPOLITAN HEALTH SERVICE (SIR CHARLES GAIRDNER HOSPITAL)
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR FLETCHER
File Number            :   A112854

Catchwords:

Workers' compensation - Appeal - Section 156B Arbitrator's powers as to return to work programs - Whether arbitrator has power to order establishment of return to work program - Construction of s 156B Workers' Compensation and Rehabilitation Act 1981 (WA)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation Reform Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M J Lourey
Respondent	:	Mr N F Morrissey

Solicitors:

Appellant	:	Chapmans Barristers and Solicitors
Respondent	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Dhu v Royal Perth Hospital [2022] WADC 89
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Mohammadi v Bethune [2018] WASCA 98
National Foods Ltd v Green [2005] WASCA 180
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Probuild Construction (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

PALMER DCJ:

Introduction

This is an appeal pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). Leave to appeal is required.[1] Leave can only be granted if 'a question of law is involved'.[2]
[1] See s 247(1) of the Act.
[2] See s 247(2) of the Act.
The Appellant, Mr Bannewari, appeals from a decision of an arbitrator Mr Fletcher (the Arbitrator), in the Workers' Compensation Arbitration Service, made on 13 February 2023 to dismiss the Appellant's application for an order pursuant to s 156B of the Act, requiring the Respondent to provide the Appellant with a return to work program (the Application). The Respondent is the Appellant's employer, the North Metropolitan Health Service.
An employer is required to establish a return to work program for an injured worker by s 155C of the Act but an employer's obligation to meet the cost of that program (which falls within the definition of 'vocational rehabilitation' in s 5 of the Act) is capped at a 'prescribed amount' by s 18(1) and cl 17(1a) of sch 1 of the Act.
The Respondent accepted liability for a claim made by the Appellant after he was injured and provided the Appellant with a return to work program administered by a rehabilitation provider. By 16 June 2022 the 'prescribed amount' for 'vocational rehabilitation' (including the return to work program) had been exhausted and the Respondent instructed the rehabilitation provider to cease administering the Appellant's program. The Appellant then made the Application to require the Respondent to provide him with a return to work program.
The Arbitrator dismissed the Application because he considered that s 156B of the Act did not give him the power to make the order sought after the prescribed amount for vocational rehabilitation had been exhausted. In reaching that decision the Arbitrator had regard to the provisions of the Act and referred to a decision of the Court of Appeal in National Foods Ltd vGreen.[3]
[3] National Foods Ltd v Green [2005] WASCA 180 (National Foods).
In National Foods, the Court of Appeal (by majority) held that the provisions of the Act that then governed the power to order a worker to participate in rehabilitation did not extend to ordering participation if the prescribed amount for vocational rehabilitation had been exhausted. The particular provision considered in National Foods has since been repealed. A new provision now addresses an arbitrator's power to order a worker to participate in a return to work program: s 156B.
The central issue in this appeal is whether the Arbitrator made an error of law when he determined that he lacked the power to make the order sought. The resolution of the appeal requires consideration of the proper construction of s 156B of the Act and the continued relevance of the reasoning in National Foods.

Factual background

The relevant factual background to the Arbitrator's decision may be stated briefly.
On or about 17 December 2020, the Appellant sustained a left shoulder and neck injury when he was transferring a patient from an ambulance to a hospital trolley in the course of his employment with the Respondent, the North Metropolitan Health Service.
The Respondent accepted liability for a claim made by the Appellant and, amongst other things, provided the Appellant with a return to work program administered by a rehabilitation provider. The rehabilitation provider was initially Resolve Workplace Health and Injury Management. From 9 December 2021, it was Fresh Start Injury Management.
On 16 June 2022 the Respondent advised Fresh Start Injury Management that funds for the return to work program had been exhausted and Fresh Start ceased administering that program.
On about 22 July 2022, the Appellant made an application to WorkCover WA for:[4]
… an order pursuant to s. 156B of the Act requiring the Respondent to provide a Return to Work Programme with the goal of returning the [Appellant] to the position held by him immediately before the injury occurred, that is Same Job/Same Employer.
[4] Appeal Book, page 4.
The Application was opposed by the Respondent.
Both parties filed written submissions and the application proceeded to a contested oral hearing before the Arbitrator on 30 November 2022. A complete transcript of that hearing is unavailable[5] but it appears that witnesses were called at that hearing, including Mr Michael Parry, a director of Fresh Start Injury Management. Mr Parry seems to have given evidence, amongst other things, that the Appellant had 'agreed to fund a range of ongoing Freshstart Injury Management services'.[6]
[5] ts 8 - ts 10.
[6] Witness Statement of Mr Michael Parry, par 22, Appeal Book, page 349.
The Arbitrator reserved his decision. He delivered written reasons on 13 February 2023 dismissing the appeal. The Arbitrator's reasons are discussed in detail below but broadly, he dismissed the Application because he considered that he lacked the power to make the order sought.[7]
[7] Arbitrator's Decision A112854, Appeal Book page 437ff (Decision): [33] - [35] (page 449).

The relevant provisions of the Act

The purposes of the Act

The long title of the Act indicates it is an act 'relating to the compensation for, and the management of, employment‑related injuries' and ‘to provide for the resolution of disputes'.
The purposes of the Act are set out in s 3 of the Act. These include to establish a workers' compensation scheme for Western Australia dealing with:
(a)compensation payable to or in respect of workers who suffer an injury;[8] and
(b)the management of workers' injuries in a manner directed at enabling injured workers to return to work.[9]

Part IX and ss 155C and 156B

[8] Section 3(a)(i) of the Act.

[9] Section 3(a)(ii) of the Act.

Part IX of the Act is titled 'Injury Management'. Part IX includes, amongst other sections, s 155C and s 156B of the Act.
Section 155C of the Act provides:
155C.Return to work programs, employers' duties as to
(1)An employer of a worker who has suffered an injury compensable under this Act must ensure that a return to work program is established for the worker as soon as practicable after either of the following occurs -
(a)the worker's treating medical practitioner advises the employer in writing that a return to work program should be established for the worker;
(b)the worker's treating medical practitioner signs a medical certificate to the effect that the worker has a total or partial capacity to return to work.
(2)Subsection (1) does not require a return to work program to be established for a worker -
(a)who has returned to the position held by the worker immediately before the injury occurred; and
(b)who has a total capacity to work in that position.
The term 'return to work' is relevantly defined in s 5(1)(a) to mean:
… the worker holding or returning to the position held by the worker immediately before the injury occurred, if it is reasonably practical for the employer who employed the worker at the time the injury occurred to provide that position to the worker …
The term 'return to work program' is not defined in the Act but would seem to fall within the definition of 'vocational rehabilitation' which is defined in s 5(1) of the Act as follows:
vocational rehabilitation, in relation to a worker who has suffered an injury compensable under this Act, means the provision to the worker of prescribed services, according to the worker's assessed needs, for the purpose of enabling the worker to return to work.
Section 156B sets out an arbitrator's powers in relation to return to work programs. The full text of s 156B is set out in [100] below.
Section 72B provides for suspending a worker's entitlements for not participating in a return to work program. Section 72B(1) provides that a worker's entitlement to compensation under the Act may be suspended by order of an arbitrator if the worker, being required by an arbitrator under s 156B(2) to participate in a return to work program, refuses or fails to participate in the return to work program.

The limitation of an employer's obligation to pay for vocational rehabilitation

Section 18 of the Act is titled 'Employers liable to pay compensation for injuries to workers'. Section 18(1) of the Act provides that if an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with sch 1.
Clause 17 of sch 1 is concerned with medical and other expenses. Clause 17(1a) provides that a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of 'vocational rehabilitation' up to, but not exceeding, in the aggregate, a sum equal to 7% of the 'prescribed amount'.
Section 5(1) of the Act defines the term 'prescribed amount' to have the meaning given in s 5A(1A). Section 5A(1A)(b) provides that the relevant 'prescribed amount' was $235,971.00. Seven per cent of $235,971.00 is $16,518.00.

Part XI of the Act

The power conferred on an arbitrator by Part XI of the Act, also warrants mention. That part is titled, 'Dispute resolution'.
Section 176(3) of the Act provides that arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
Section 176(1)(b) defines a dispute for the purposes of Part XI to include dispute in connection with an obligation imposed under Part IX (the part that includes s 155C and s 156B).
Section 211(1) provides that, subject to the Act, an arbitrator may make such decisions as the arbitrator thinks fit. A decision is defined in s 5 to include 'an order, award, direction or determination'.

Two decisions referred to by the Arbitrator

The Arbitrator referred to two decisions in his reasons: National Foods and Dhu vRoyal Perth Hospital.[10] The parties also referred to those decisions before the Arbitrator and in argument before me. An understanding of those decisions is necessary to properly understand the Arbitrator's reasons and the parties' submissions.

National Foods Ltd v Green

[10] Dhu v Royal Perth Hospital [2022] WADC 89 (Dhu).

Like this case, National Foods was a case in which an application was made for an order under the Act to compel participation in rehabilitation after the limit on an employer's liability to pay for vocational rehabilitation expenses had been reached.[11] In this case the application has been made by a worker. In National Foods the application was made by the employer. In National Foods although the limit on an employer's liability to pay for vocational rehabilitation expenses had been reached, the employer proffered an undertaking to pay for the rehabilitation anyway.[12]
[11] National Foods [4].
[12] National Foods [8].
The decision turned on the proper construction of s 157(1) of the Act (as it then was[13]). Section 157(1) provided:
A dispute resolution body may at any time require a worker who is incapacitated to undergo rehabilitation as specified by a dispute resolution body …
[13] Section 157 has since been repealed and replaced with a new s 157 in different terms.
Wheeler JA characterised the question arising on the appeal as being whether s 157 means precisely what it says on its face and grants power to order a worker to undergo rehabilitation, notwithstanding that there is no power to order payment of the expenses of that rehabilitation, or whether s 157 in its context is limited to ordering rehabilitation where there are funds available to meet that expense.[14]
[14] National Foods [7].
The majority concluded that, on a proper construction of the Act, the power to order a worker to undergo rehabilitation in s 157 exists only where there is a corresponding power to order payment of any expenses in that rehabilitation.[15]
[15] National Foods [9].
The majority noted that the issues of compensation and rehabilitation are linked, in the statutory scheme. They noted that they were in the title of the Act and they were the first and second matters mentioned in s 3, which sets out the statutory purposes.[16]
[16] National Foods [9].
The majority also noted that the first of the purposes set out in s 3(a) is to make provision for the compensation of workers who suffer from a disability. They considered that an Act with such a purpose should not be interpreted in a manner that would permit the potentially very significant cost of rehabilitation to be imposed upon a worker in respect of a disability, unless no other conclusion is available on the words of the statute.[17]
[17] National Foods [10].
The majority referred to s 72 of the Act that then provided that a worker's entitlement to weekly payments of compensation was suspended during any period when the worker is required to undergo rehabilitation, but refused to do so or did not reasonably co-operate. They noted that if s 157 was construed to order participation, an order could be made to compel participation, for which the worker would be liable for the cost, on pain of having the entitlement to weekly payments of compensation suspended.[18]
[18] National Foods [10].
The majority acknowledged that the Act has a number of provisions directed to encouraging the rehabilitation of workers, but indicated that they were not prepared to read s 157, which alone appears to empower a person to direct a worker to undergo rehabilitation, in a manner which would permit the imposition of a burden upon the worker. They interpreted s 157, in its context, as permitting an order that a worker undergo rehabilitation, where the relevant percentage of the prescribed amount has not been reached pursuant to cl 17(1a) of sch 1.[19]
[19] National Foods [11].
Pullin JA dissented. His Honour agreed with the majority that there was no power conferred by s 157 to order a worker to undergo rehabilitation where the cost of such rehabilitation to the worker (added to the total cost to the worker of previous rehabilitation) exceeded the limit prescribed by the Act. After analysing the relevant provisions, Pullin JA considered that the provisions revealed that to recover compensation for rehabilitation expenses a worker must incur expense and then claim to be indemnified. He considered that in making an order for rehabilitation the dispute resolution body is in effect also ordering a person to incur the expense associated with the rehabilitation. If the expense is incurred, then the worker may claim workers' compensation being the 'sum equal to' the expense incurred. If the limits prescribed by the Act have been exceeded, then the worker might not be able to recover the cost of participating in rehabilitation if ordered to do so.[20]
[20] National Foods [20].
His Honour considered, however, that if a worker had already reached the limit and a rehabilitation provider was prepared to provide its services free, or if another person was prepared to meet the cost, then the worker would not be exposed to any expense exceeding the limit, in which case the power to order rehabilitation would exist because the cost to the worker would not exceed the limit.[21]

Dhu v Royal Perth Hospital

[21] National Foods [20].

Dhu is a decision of his Honour Judge Flynn in this court. That case involved an appeal from a decision by an arbitrator to refuse an application for an order requiring an employer to establish a return to work program.[22] In Dhu, unlike this case and National Foods, the limit on an employer's liability to pay for vocational rehabilitation expenses had not yet been reached. Like this case, however, the controversy concerned the power of an arbitrator to order that an employer establish a return to work program.[23] That decision is presently relevant in at least three respects.
[22] Dhu [4] - [9].
[23] Dhu [8].
First, the Appellant relied upon it as authority for the proposition that an order may be made under s 156B of the Act.[24] The Arbitrator appears to have accepted that submission.[25] That submission was repeated in the Appellant's submissions before me,[26] although counsel before me seemed to resile from that position a little under questioning at the hearing of the Appeal.[27]
[24] See Applicant's Outline of Submissions, dated 21 November 2022, par 22.2, Appeal Book page 428.
[25] Decision [7].
[26] Appellant's Submissions par 51.2.
[27] ts 42.
As mentioned, s 155C imposes an express obligation on an employer to establish a return to work program. The issue in Dhu was that the arbitrator in that case considered that neither s 156B, nor any other provision of the Act, conferred power upon an arbitrator to make an order to compel an employer to fulfill that obligation.[28]
[28] Dhu [50].
The arbitrator in that case found that the plain meaning of s 156B(2) is to expressly empower an arbitrator to make an order that a worker participate in an existing return to work program on the employer's application under s 156B(1).[29] He was unable to find in s 156B(1), s 156(3) or s 176 and s 212 an express or implied source of power for an arbitrator to make an order that, in accordance with s 155C, an employer must establish a return to work program.[30]
[29] Dhu [52].
[30] Dhu [53].
Flynn DCJ considered that the arbitrator in that case misconstrued the Act and he allowed the appeal. His Honour considered the arbitrator did have the power to order a return to work program. He accepted that on its natural and ordinary meaning, s 156B was concerned with conditions that must be satisfied before an arbitrator makes an order that a worker participate in a return to work program.[31] But he considered that worker participation in a program and employer establishment of a program are separate and distinct statutory obligations.[32] He considered that s 156B does not otherwise qualify the jurisdiction of an arbitrator, found in s 176,[33] to make an order in connection with an obligation imposed upon an employer in s 155C, namely, an order that an employer establish a return to work program.[34] At [65] his Honour concluded that:
It is apparent from my approach to the construction of s 176 and s 156B that, contrary to the approach of the Learned Arbitrator and the submissions of RPH, I have been able to reconcile the broadly framed conferral of jurisdiction in s 176 with an 'exception' in s 156B limited to occasions when an arbitrator proposes to make a particular order ie that a worker participate in a program.
[31] Dhu [60] and [63].
[32] Dhu [61].
[33] Flynn DCJ referred to s 179 but probably meant s 176.
[34] Dhu [60].

Thus, as the Appellant argued, Flynn DCJ did consider that an arbitrator had the power to order a return to work program but on my reading of Dhu, Flynn DCJ considered the source of that power was s 176, not s 156B. Indeed, his Honour accepted as part of his reasoning that s 156B was limited to requiring a worker to participate in a return to work program. As is discussed further below, this is a matter of significance in this matter as the Application was made pursuant to s 156B.
The second respect in which Dhu is relevant is that the Arbitrator considered that comments made in [94] and [109] of Dhu approved the application of the principle in National Foodsto s 156B of the Act.[35]
[35] Decision [27] - [28].
In [94] of Dhu, Flynn DCJ observed that the decision of Wheeler JA in National Foods suggests that the availability of funds is relevant to whether a court may make an order, otherwise authorised by statute, for a rehabilitation program that requires funds for administration.
In [109] Flynn DCJ observed that for the avoidance of doubt and consistent with National Foods, it would also be open to the arbitrator to consider, on the remittal, the significance of evidence of the extent of funds available in respect of vocational rehabilitation.
The third respect in which Dhu is relevant is that before the Arbitrator, the Respondent submitted that in Dhu Flynn DCJ had held that an employer was only obliged to establish a return to work program for a worker to return to the position they held immediately before the injury, if it was 'reasonably practicable' for the employer to provide the position to the worker.[36]
[36] Respondent's Arbitration Submissions, pars 26 to 32 and 50(b), Appeal Book pages 433 ‑ 434 and 436.
In Dhu Flynn DCJ said that the bifurcated definition of 'return to work' in s 5 of the Act privileges a worker having an opportunity, if reasonably practical, to take up a pre-injury position (per (a)) unless the employer proves that her pre-injury position is not available.[37] In that case he considered that despite the employer's omission to adduce any evidence upon an issue on which it carried the burden of proof, having regard to the history of the case and the course of the arbitration, it was necessary for the employer to be given an opportunity to adduce evidence and to make submissions.[38]
[37] Dhu [98].
[38] Dhu [100].

The Arbitrator's decision

The Arbitrator commenced by briefly setting out the background to the Application.[39] The Arbitrator then touched on the submissions made by the parties and noted that both parties had made submissions about the effect of National Foods.[40]
[39] Decision [1] - [4].
[40] Decision [5] - [6].
The Arbitrator next observed that there was no issue with respect to his jurisdiction under s 176(3) of the Act to make the s 156B(1) order sought and he referred to Dhu at [65].[41] He identified the issue as being whether he had the power to make the order sought given the prescribed amount payable for vocational rehabilitation had been exhausted and he referred to the decision in National Foods.[42]
[41] Decision [7].
[42] Decision [8].
The Arbitrator then turned to consider the relevant law and set out the relevant provisions of the Act.[43]
[43] Decision [11] - [18].
On the basis of the evidence before him, the Arbitrator found that the Respondent had paid a total of $19,828.67 for 'vocational rehabilitation' and this exceeded the 'prescribed amount' of $16,518.00 with respect to the Appellant's injury provided under s 18(1) sch 1 cl 17(1a) of the Act.[44]
[44] Decision [20] - [21].
The Arbitrator then referred to [11] of the judgment of Wheeler JA in National Foods but noted that since that decision had been made, Part IX of the Act had been repealed and replaced by s 118 of the Workers' Compensation Reform Act 2004 (WA).[45]
[45] Decision [22] - [23].
Next the Arbitrator referred to the Appellant's argument that given the repeal of s 157(1), the decision in National Foods ought not be applied and he indicated that he did not accept that argument and he gave two reasons for this.[46]
[46] Decision [24].
First, the Arbitrator referred to the Explanatory Memoranda to the Workers' Compensation Reform Bill 2004 (WA), the bill associated with the legislation that repealed the old s 157 and introduced s 156B. He observed that the purpose of the bill was to expand and refine the provisions of the Act with respect to rehabilitation and return to work of injured workers without affecting the 'prescribed amount' of compensation available for 'vocational rehabilitation'.[47] He noted at [185] that the explanatory memorandum stated the following in relation to s 156B of the Act:
Section 156B(1) enables an employer or a worker to apply to an arbitrator for an order that the worker participate in a return to work program.
Section 156B(2) partly reflects existing section 157(1) and enables the arbitrator to order a worker to participate in a return to work program if satisfied.
[47] Decision [25] - [26].
Secondly, as mentioned, the Arbitrator said that the decision in Dhu at [94] and [109] approves the principle stated in National Foods.[48]
[48] Decision [27].
The Arbitrator concluded that in his view: [49]
the judicial construction of the earlier s 157 in National Foods Ltdv Green, terminating the power of an arbitrator to determine applications for 'vocational rehabilitation' once the relevant 'prescribed amount' payable has been exhausted, is persuasive if not binding with respect to s 158B (sic) and accordingly [he applied] it to the determination of [the] application.
[49] Decision [28].
The Arbitrator then turned to consider the Appellant's argument that National Foods was distinguishable because it was an application made by an employer and the Appellant's application was made by a worker.[50] The Arbitrator described this submission as a 'red herring' because the power to order an employer to provide a return to work program only existed where the 'prescribed amount' for 'vocational rehabilitation' had not been exhausted.[51] The Arbitrator referred to both Wheeler JA and Pullin JA's reasoning in National Foods.[52]
[50] Decision [29].
[51] Decision [30].
[52] Decision [31] - [32].
In his conclusion, the Arbitrator reiterated that he considered that he did not have the power to make the order sought.[53] He also concluded that given that he had concluded that he lacked the power to make the order sought, he did not regard it necessary to consider whether the Respondent had discharged the onus of establishing that it would not be 'reasonably practical' for it to provide the same duties/same employer return to work and he referred to Dhu.[54]
[53] Decision [33].
[54] Decision [34].

The Appeal

The Appellant's Appeal Notice identified three grounds of appeal:
(a)the Arbitrator erred in law in not correctly interpreting and/or applying:
(i)the definition of 'return to work' in s 5 of the Act; and
(ii)the provisions of Part IX of the Act;
(Ground 1)
(b)the Arbitrator erred in law in not correctly applying the provisions of s 156B(1) of the Act, and/or by not determining the Application in accordance with s 156B(1) of the Act; (Ground 2) and
(c)the Arbitrator erred in law in wrongly applying the decision of National Foods Ltd v Green (Ground 3).
The Appeal Notice identified two questions of law:
(a)whether the Arbitrator correctly applied and interpreted the provisions of the Act; and
(b)whether the Arbitrator properly applied the decision of National Foods Ltdv Green.
The Appeal Notice identified the decision sought as being:
(a)that leave to appeal be granted and the decision of the Arbitrator be quashed;
(b)the Respondent, pursuant to s 155C(1) of the Act, establish a return to work program for the Appellant with a goal of returning the Appellant to the position he held immediately before his injury on 7 December 2020, (that is same job/same employer), and allow the Appellant to participate in that program;
(c)in the alternative, the matter be remitted to a different arbitrator for determination according to law; and
(d)the Respondent pay the Appellant's costs of the Application, this appeal and the application for leave to appeal.

The nature of an appeal under the Act

Section 247(1) of the Act provides that a party may, with leave of the District Court, appeal to the District Court from an arbitrator's decision.
Section 247(2)(b) provides leave can only be granted if 'a question of law is involved'.[55] An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved.[56] If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction to grant leave to appeal.[57]
[55] Section 247(2)(a) has no application in this case as this is not a matter in which an amount of compensation is in issue.
[56] Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [55] (Murphy JA) (with whom Pullin & Newnes JJA agreed); BHP Billiton Iron Ore Pty Ltdv Brady [2008] WASCA 250 [3]; AtanasoskavInghams Enterprises Pty Ltd [2009] WASCA 17.
[57] Catholic Education Office of WA v Granitto [54]; Pacific Industrial Cov Jakovljevic [2008] WASCA 60 [17].
In Engine Protection Equipment Pty LtdvMiller[58] the Court of Appeal observed:[59]
Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave … Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.
(footnotes omitted)
[58] Engine Protection Equipment Pty LtdvMiller [2018] WASCA 55.
[59] Engine Protection Equipment Pty LtdvMiller [46].
It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that, within the constraints marked out by the nature of the appellate process, a 'real review' must be conducted.[60]
[60] Granitto [56]; Pacific Industrial Cov Jakovljevic [20], [24].
Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator.[61]
[61] Granitto [57]; Jakovljevic [20], [26].

The Appellant's submissions

The Appellant's written submissions did not address the three grounds of appeal separately, or suggest that the different grounds of appeal raised different issues. Rather, they addressed the Arbitrator's alleged error in wrongly applying National Foods to s 156B of the Act. In oral submissions the Appellant's counsel submitted that the three grounds of appeal 'all operate together'[62] and 'all interact'.[63]
[62] ts 27.
[63] ts 28.
In his written submissions, the Appellant submitted that the reasons of the Arbitrator revealed that rather than considering and applying the provisions of Part IX of the Act (read with the definition of 'return to work' in s 5 of the Act) he accepted the Respondent's submission that the decision of National Foods meant he did not have the 'power' to make the orders sought.[64]
[64] Appellant's Written Submissions par 34.
In the written submissions, the Appellant submitted that National Foods has no application following the repeal of the old s 157. The Appellant submitted that s 157 operated differently to s 156B because s 157 did not allow a worker to apply for an order in that worker's favour. The Appellant submitted that National Foods is only authority in circumstances where an insurer attempts to obtain an order compelling a worker to participate in a return to work program after the prescribed amount for vocational rehabilitation has been exhausted.[65]
[65] Appellant's Written Submissions, pars 45 - 46.
The Appellant's oral submissions addressed the changes to Part IX of the Act.[66] It was submitted that these changes made the Court of Appeal's consideration of 'the provisions of the old Part IX in an entirely different context redundant'.[67]
[66] ts 28 - ts 33.
[67] ts 34.
In his written submissions, the Appellant submitted that an arbitrator has power pursuant to s 156B(1) to make an order that the worker is required to participate in a return to work program (as per s 155C).[68] The Appellant submitted that:
(a)following Dhu at [65], there can be no doubt that an order pursuant to s 156B can be made by an Arbitrator;[69] and
(b)nothing in the decision of National Foods prevents such an order being made simply because the prescribed amount for vocational rehabilitation had been used.[70]
[68] Appellant's Written Submissions, par 51.1.
[69] Appellant's Written Submissions, par 51.2.
[70] Appellant's Written Submissions, par 51.3.
I asked the Appellant's counsel during his oral submissions whether [65] in Dhu identified the source of the jurisdiction to order the establishment of a return to work program as being s 176 of the Act, not s 156B.[71] At one point counsel for the Appellant agreed that this was the effect of Flynn DCJ's judgment.[72] I raised with counsel the fact that the order sought by the Appellant had been sought pursuant to s 156B, not s 176.[73] The Appellant's counsel submitted that nothing turned on this and counsel referred to s 176.[74] It was also submitted that s 156B sets out the framework.[75]
[71] ts 37 - ts 53.
[72] ts 42.
[73] ts 45.
[74] ts 45 - ts 47.
[75] ts 48.
The Appellant's counsel's oral submissions did not involve any detailed textual analysis of s 156B, although it was apparent that he attached significance to the use of the word 'worker' in that section as demonstrating that an application could be made by a worker.[76]
[76] ts 30, ts 33 - ts 34, ts 37 and ts 42.
At one point the Appellant's counsel went as far as submitting that the exhaustion of the prescribed amount did not limit the jurisdiction conferred by s 156B where an application was made by a worker.[77]
[77] ts 62.
The Appellant's counsel also acknowledged that an employer's obligation to meet rehabilitation is capped by the Act[78] but it was submitted that that did not mean that an arbitrator lacked power and reference was made to the dissenting judgment of Pullin JA in National Foods as being 'persuasive'.[79] The Appellant's submissions then focused on Pullin JA's judgment in that case.[80]
[78] ts 55.
[79] ts 56. See also ts 33.
[80] ts 55 - ts 62.

The Respondent's submissions

The Respondent's written submissions were filed before the Appellant filed his submissions.
In his written submissions, the Respondent submitted that textually s 156B(2) prescribes that an order can only be made with respect to a return to work program where there is a corresponding duty on the employer pursuant to s 155C to establish a return to work program for the worker. It was submitted that the duty under s 155C does not exist where a return to work program has already been established and the prescribed amount for rehabilitation expenses has already been exhausted.[81]
[81] Respondent's Submissions, par 42.
In the Respondent's written submissions, it was submitted that the function of Part IX is to establish a system for injury management within the workers' compensation scheme with prescribed limits. It was said that this is consistent with s 155C(1) requiring an employer to establish 'a' return to work program rather than continuing to require an employer to provide return to work programs in circumstances where the arbitrator cannot order the employer to pay for any associated expenses. It was submitted that the construction contended for by the Appellant would put an employer in an ongoing holding pattern where the employer could be required to continue to provide return to work programs well after the prescribed amount for rehabilitation has expired.[82]
[82] Respondent's Submissions, par 43.
In the written submissions, the Respondent submitted that sch 1 cl 7(6) prescribed that where a worker is complying with an order of an arbitrator made pursuant to s 156B, the worker is deemed to be totally incapacitated and therefore entitled to weekly payments (provided there is a sufficient amount remaining in the prescribed amount for weekly payments). The Respondent submitted that what this means in practical terms is that if the construction contended for by the Appellant is accepted, a worker could agree to pay some limited expenses relating to a return to work program in exchange for being deemed totally unfit and having an entitlement to receive ongoing weekly payments accordingly. It was submitted that this would result in a favourable position for the worker financially and would enable him or her to bypass the provisions of the Act which specifically deal with establishing incapacity for work and entitlement to weekly payments.[83]
[83] Respondent's Submissions, par 44.
In his written submissions, the Respondent submitted that Ground 1 was vague and confusing in that it did not particularise what other interpretation of the definition of 'return to work' in s 5 of the Act is contended for and how this could impact the Arbitrator's finding that he did not have power to make an order pursuant to s 156B(1).[84] It was submitted that the Arbitrator carefully considered the applicable provisions of Part IX and the definition of 'return to work' and 'return to work program' and applied these provisions to his determination having regard to the facts found by him. Various paragraphs of the Decision were identified.[85]
[84] Respondent's Submissions, pars 12 and 48.
[85] Respondent's Submissions, par 49.
In the written submissions, the Respondent submitted that Ground 2 suffered the same failings as Ground 1.[86] It was submitted that the Arbitrator carefully considered the ambit of his power to make orders pursuant to s 156B and his conclusion that this power had terminated when the prescribed amount for 'vocational rehabilitation' had expired was correct having regard to the text of s 156B and Part IX as well as the legal principle in National Foods.[87]
[86] Respondent's Submissions, par 52.
[87] Respondent's Submissions, par 53.
The written submissions submitted that the Appellant's construction of Part IX was 'repulsive'. It was submitted that it would give the result of: (1) imposing rehabilitation expenses on workers; (2) enabling workers to bypass the provisions of the Act by offering to pay limited rehabilitation expenses themselves; (3) creating circumstances where an employer's duty to provide a return to work program to an injured worker extends beyond the compensation provisions of the Act being exhausted.[88]
[88] Respondent's Submissions, par 54.
In his written submissions, the Respondent submitted that Ground 3 was also vague and embarrassing.[89] It was submitted that the Arbitrator was required to consider National Foods as it related to the same issue before the Arbitrator.[90] It was submitted that having regard to the wording of Part IX, the purpose of the Act, the context of s 156B and an arbitrator's power to make orders as to return to work programs, the Arbitrator was right to reach the same conclusion as the majority in National Foods.[91]
[89] Respondent's Submissions, par 56.
[90] Respondent's Submissions, par 57.
[91] Respondent's Submissions, par 60.
It was submitted that none of the grounds disclosed an error of law and leave should be refused.[92]
[92] Respondent's Submissions, par 62.
In oral submissions, the Respondent's counsel drew attention to [94] and [109] of Flynn DCJ's reasons in Dhu where reference was made to National Foods.[93]
[93] ts 66 - ts 67.

I put to the Respondent's counsel that in Dhu Flynn DCJ had expressed the view that the source of jurisdiction was s 176, not s 156B.[94] The Respondent's counsel submitted that s 176 was a 'gateway'.[95] Later the Respondent's counsel submitted that s 156B was the source of the relevant jurisdiction, or at least that s 176 and s 156B operated in conjunction.[96]
[94] ts 67 - ts 69.
[95] ts 69.
[96] ts 74 - ts 76.
The Respondent's counsel also addressed the decision in National Foods and invited me to follow the decision of the majority.[97] It was accepted that given the legislative changes the decision was not binding but it was submitted that its reasoning was still persuasive.[98]
[97] ts 69 - ts 74, ts 77 - ts 84.
[98] ts 77.

Disposition

The proper construction of s 156B

Although there were three grounds of appeal, the Appellant's written and oral submissions did not properly distinguish between the grounds. The hearing of the Appeal was conducted on the basis that all the grounds operated together and interacted.[99] Although the Respondent's written submissions addressed the grounds of appeal separately, those submissions were prepared without the benefit of first seeing the Appellant's written submissions. The Respondent's counsel did not address the grounds of appeal separately at the hearing of the Appeal.
[99] ts 27 - ts 28.
Given the way the Appeal was conducted before me, I will consider the arguments made before me first and return to the grounds of appeal later.
In my view, the central issue on this appeal is whether the Arbitrator had the power to make the order the Appellant sought, given the prescribed amount for vocational rehabilitation had been exhausted. Whether he did or not depends upon the proper construction of the provisions of the Act, in particular s 156B.
Both counsel who appeared before me submitted that the decision in National Foods is no longer binding[100] but both sought to persuade me that the reasoning in that case remained persuasive, although each relied on different judgments in that case.[101]
[100] ts 34, ts 77.
[101] ts 33, ts 56, ts 77.
I agree that National Foods is no longer binding. In that case the Court of Appeal considered a differently worded provision. As National Foods has not resolved the proper construction of s 156B, it is necessary for me to consider how that provision should be construed.
Despite the fact that counsel for the Appellant took me to Pullin JA's dissent in National Foods and invited me to adopt similar reasoning,[102] he also submitted that the amendment of the Act after that case was decided meant that the relevance of that decision had passed.[103] It may be that counsel's submission should be understood as being that the decision in National Foods was no longer binding. If so, I accept that submission.
[102] ts 53 - ts 61.
[103] ts 28.
If counsel did intend to submit that I should entirely disregard the Court of Appeal's decision in National Foods, I do not accept that submission. In my view, significant parts of the Court of Appeal's reasoning concerned parts of the Act that remain unchanged. Much of what the Court of Appeal said regarding the purposes of the Act and the broader statutory scheme remains pertinent. This is presumably why both parties' counsel invited me to adopt parts of the reasoning in that case.
Turning then to the proper construction of s 156B(1) of the Act. The starting point is the text. Section 156B(1) provides:
156B.Arbitrators' powers as to return to work programs
(1)The employer of a worker, or a worker, may apply for an order of an arbitrator requiring the worker to participate in a return to work program.
(2)The arbitrator may require the worker to participate in a return to work program if satisfied that -
(a)a return to work program is required under section 155C(1) to be established for the worker; and
(b)the worker, without reasonable excuse, refuses or has failed to participate in a return to work program; and
(c)the establishment, content and implementation of the return to work program are, or will be, in accordance with the code.
(3)The arbitrator may require the worker to participate in a return to work program other than that proposed by or on behalf of a party to the application.
It may be seen that the text of s 156B(1) does not expressly provide that power is only conferred for the period during which the prescribed amount for vocational rehabilitation remains unexhausted. If s 156B(1) is read literally and in isolation, it would confer power on an arbitrator irrespective of whether the prescribed amount had been exhausted or not. Indeed, although s 156B(2) provides for various matters of which an arbitrator must be satisfied before he or she may make an order under s 156B, s 156B does not otherwise provide for any temporal limit on the arbitrator's power, or otherwise limit that power by reference to the cost of compliance with the order.
Section 156B must, however, be read in the context of the Act as a whole and in light of the purposes of the Act. Statutory construction requires attention to the text's context and the purpose of the statute.[104] While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context.[105] In SZTAL v Minister for Immigration and Border Protection, Kiefel CJ, Nettle and Gordon JJ explained:[106]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[104] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14], [37]; Probuild Construction (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 [34]; see also Mohammadi v Bethune [2018] WASCA 98 [31].
[105] Project Blue Sky Inc v Australian Broadcasting Authority [69]; SZTAL v Minister for Immigration and Border Protection [14]. The relevant principles were also usefully summarised by the Court of Appeal in Mohammadi v Bethune [2018] WASCA 98 [32] - [36].
[106] SZTAL [14].
In National Foods, Wheeler JA made the following observations about how the purposes of the Act and the broader statutory scheme reveal how the legislature intended the power under consideration in that case should be limited:
9In my view, the conclusion of the Review Officer and the Compensation Magistrate is the correct one. That is, the power of the dispute resolution body to order a worker to undergo rehabilitation exists only where there is a corresponding power to order the payment of any expenses involved in that rehabilitation. The issues of compensation and rehabilitation are linked, in the statutory scheme. They were in the title of the Act as it stood at the relevant time. They are the first and second matters mentioned in s 3, which sets out the statutory purposes.
10Further, when one has regard to the purposes set out in s 3, the first of those purposes is, in par (a), to make provision for the compensation of workers who suffer from a disability. An Act which has as its first-mentioned purpose the compensation of disabled workers should not, in my view, be interpreted so as to permit a financial burden to be imposed upon a worker in respect of a disability, unless no other conclusion is available on the words of the statute. The costs of rehabilitation could be very significant and, while rehabilitation (in the sense of the restoration of some capacity for work) may ultimately be beneficial to the worker, the process of rehabilitation may, on occasions, be a disagreeable or even painful one. The significance of the burden imposed on a worker by a requirement to undergo rehabilitation is made clear when one looks to the penalty which may flow from the failure either to undergo rehabilitation or to co-operate in such rehabilitation. Section 72 provides that a worker's entitlement to weekly payments of compensation is suspended during any period when the worker is required to undergo rehabilitation, but refuses to do so or does not reasonably co-operate. The effect of the construction contended for by the appellant, then, is that it would be open to a Review Officer to order that a worker undergo rehabilitation, for the cost of which the worker would be liable, on pain of having the entitlement to weekly payments of compensation suspended.
11While the Act has a number of provisions directed to encouraging the rehabilitation of workers, I would not read s 157, which alone appears to empower a person to direct a worker to undergo that process, in a manner which would permit the imposition of a burden upon the worker. In its context, then, I would understand s 157 as permitting a dispute resolution body to require a worker to undergo rehabilitation, where the relevant percentage of the prescribed amount has not been reached pursuant to cl 17(1a) of Sch 1, or where the Commission has authorised payment from the general fund which will meet the cost of that rehabilitation.
The observations made regarding the purposes of the Act and the statutory scheme remain pertinent. Even though s 156B has replaced s 157, the purposes of the Act that Wheeler JA refers to are still purposes of the Act. Section 72B of the Act provides for a worker to be penalised for not complying with an order. An employer's obligation to pay for rehabilitation is still limited to a prescribed amount for vocational rehabilitation by s 18(1) and cl 17(1a) of sch 1.
The entire court in National Foods (including Pullin JA in dissent) agreed that the power of an arbitrator to order a worker to participate in rehabilitation must be limited, so that an arbitrator could not order participation if the worker would be obliged to meet the cost of that participation.[107] The division between the majority and minority concerned the nature of the limitation and whether participation could be ordered where someone agreed to pay for that rehabilitation, after the prescribed amount had been exhausted.
[107] National Foods [9] - [10] (Wheeler JA); [20] (Pullin JA).
At one point the Appellant seemed to submit that the exhaustion of the prescribed amount did not limit the power conferred by s 156B where an application was made by a worker.[108] In this regard the Appellant seemed to attach significance to the fact that s 156B permitted an application to be made by a worker, while s 157 did not.[109]
[108] ts 62.
[109] ts 30, ts 33 - ts 34.
In my view, the power conferred by s 156B must be limited, so that there would be no power if the effect of an order would be to require a worker to incur the cost of paying for rehabilitation. It seems unlikely to me that in enacting an Act with a purpose of providing for the compensation of workers who suffer from a disability, it would have been intended to confer power to compel a worker to participate in rehabilitation that the worker would be required to pay for. I respectfully agree with the observations made by Wheeler JA in National Foods.[110]
[110] National Foods [10].
In my view, the power for an arbitrator to make an order against an employer must also be limited, so that there would be no power to compel an employer by s 156B to incur costs after the prescribed amount for vocational rehabilitation had been exhausted. Section 18(1) read with cl 17(1a) of sch 1 expressly provides that an employer's obligation to pay for vocational rehabilitation is limited to the prescribed amounts. Effect must be given to those provisions. Such a conclusion is also consistent with the reasoning of the entire court in National Foods.
As I mentioned, the Appellant invited[111] me to adopt reasoning similar to that of Pullin JA in National Foods where he observed:[112]
If the limits prescribed by cl 17 and s 158 have been exceeded, then the worker, if he could be ordered to undergo rehabilitation and therefore to meet the expense, could not recover that cost. I therefore consider that there is no power conferred under s 157 to order a worker to undergo rehabilitation if the cost of such rehabilitation to the worker added to the total cost to the worker of previous rehabilitation exceeds the limit prescribed by the Act (including s 158). However, if a worker had already reached the limit and a rehabilitation provider was prepared to provide its services free or if another person was prepared to meet the cost, then the worker would not be exposed to any expense exceeding the limit, in which case the power to order rehabilitation would exist because the cost to the worker (nil in the examples I have given) added to previous rehabilitation costs would not exceed the limit.
(emphasis added)
[111] ts 55 - ts 62.
[112]National Foods [20].
By inviting me to adopt reasoning similar to that of Pullin JA, I understood the Appellant to be inviting me to conclude (like Pullin JA) that the limit to the power conferred by s 156B was that an order could not be made if the order 'added to the total cost' so that the prescribed amount was exceeded.
There were similarities between this case and National Foods. There was a suggestion in both that if an order was made, the cost of compliance would not need to be met by the compelled person (in this case the employer, in National Foods the employee). If Pullin JA's reasoning were to be accepted, there might be power to make the order sought here because the making of the order would not cause the prescribed limit to be exceeded, if there was no cost to the employer (because the employee would pay the cost).
There appears to be a tension between the Appellant's submission that I should adopt Pullin JA's reasoning and the Appellant's submission that power was unlimited where an application was made by a worker (that I have already addressed above). Pullin JA accepted that there was a limit. I have assumed the Appellant intended this submission as an alternative to his earlier submission.
The Respondent submitted that I should adopt the reasoning of the majority in National Foods.[113] In that case, the majority noted that the question before the court was accepted by the appellant as being one of principle. The majority reasoned that if the words of s 157 were wide enough to order a worker to undergo rehabilitation, even where the entitlement to compensation for rehabilitation has ceased, it must follow that there was power to compel, irrespective of whether someone other than the worker was prepared to meet those costs. They considered that the fact that the employer had offered an undertaking to pay for the rehabilitation had to be put to one side.[114]
[113] ts 69 - ts 74, ts 77 - ts 84.
[114] National Foods [8].
The Respondent submitted that the reasoning and the conclusion of the majority (set out in the first quote above[115]) was correct. It was submitted that the power to order a worker to undergo rehabilitation exists only where there is a corresponding power to order the payment of any expenses involved in that rehabilitation.
[115] See [103] above.
While it might be the case that adopting reasoning similar to Pullin JA might promote one of the objects of the Act (the management of workers' injuries in a manner directed at enabling injured workers to return to work[116]) I have some reservations about preferring his view to that of the majority. This is for two reasons.
[116] See s 3(a)(ii) of the Act.
First, on Pullin JA's construction the precise limit on the power is uncertain. Even though the prescribed amount has been exhausted, power to compel could potentially continue for an indefinite period so long as an employer, employee, or a third party, was prepared to fund the rehabilitation. By contrast, on the majority's construction the limit to the power is certain as it is limited by the exhaustion of the prescribed amount. In my view, the lack of certainty is significant because the power in question is to compel involuntary participation with potentially significant consequences. It seems unlikely to me that the legislature would have intended to confer such power for an uncertain and potentially indefinite period.
Secondly, if Pullin JA's reasoning was right, power might depend upon the proffering of an undertaking that there would be no cost to the compelled party. There do not seem to me to be any textual indicators that suggest it was intended that power could be enlivened by the proffering of an undertaking. For example, s 156B does not address the type of undertaking necessary to establish power.
In my view s 156B properly construed, only conferred power on the Arbitrator to compel participation in a return to work program while the prescribed amount for vocational rehabilitation remained unexhausted. It is not controversial that the prescribed amount had been exhausted when the Appellant made the Application. In my view the Arbitrator was correct to conclude that he lacked power to make the order sought.
I am fortified in my view that the Arbitrator correctly concluded that he lacked power by the fact that the Application was made pursuant to s 156B, rather than s 176 of the Act. As I raised with counsel for the Appellant and he seemed to accept at one point,[117] in Dhu Flynn DCJ held that the source of the jurisdiction to establish a return to work program is to be found in s 176, not s 156B. As I mentioned in my discussion of Dhu above, in that case Flynn DCJ considered that the jurisdiction conferred by s 156B concerns compelling an employee to participate in a return to work program. Like Dhu, the Application in this case concerned the establishment of a return to work program. That the Application was made pursuant to s 156B was another reason to doubt that the Arbitrator had power in this case.

The questions of law identified by the Appellant

[117] ts 42.

Section 247(2)(b) of the Act provides that leave can only be granted if a question of law is involved. The Appeal Notice identified two questions of law:
(a)whether the Arbitrator correctly applied and interpreted the provisions of the Act; and
(b)whether the Arbitrator properly applied the decision of National Foods Ltdv Green.
It seems to me that whether the Arbitrator correctly applied and interpreted the provisions of the Act is the material question. If he did, he would have made no error even if he had regard to National Foods.
Further, although the legislation has been amended since National Foods was decided, National Foods was a decision of the Court of Appeal addressing the very same issue before the Arbitrator. It was appropriate for the Arbitrator to consider what was said in that decision.
With regard to whether the Arbitrator correctly applied and interpreted the provisions of the Act, for the reasons I have given, I consider he did.

Grounds 1 and 2

Ground 1 alleges that the Arbitrator erred in law in not correctly interpreting and/or applying the definition of return to work in s 5 of the Act and the provisions of Part IX of the Act.
Ground 2 alleges that the Arbitrator erred in law in not correctly applying the provisions of s 156B(1) of the Act, and/or by not determining the Application in accordance with s 156B(l) of the Act.
It was not apparent to me from the manner in which the appeal was conducted that Ground 2 gave rise to any consideration different to that raised by Ground 1. The Appellant's submissions did not identify Ground 1 as giving rise to a different error. I will therefore deal with both grounds together.

In my view, for the reasons given above, the Arbitrator adopted the correct construction of the Act. Despite the repeal of the old s 157, the attack on the Arbitrator's interpretation of the Act lacked sufficient merit to make it in the interests of justice to grant leave to appeal. I refuse leave on these grounds.

Ground 3

Ground 3 alleges that the Arbitrator erred in law by wrongly applying the decision of National Foods.
In my view, on a fair reading of the Arbitrator's reasons, he did not conclude that he was bound to follow the decision in National Foods. His conclusion was that the decision in that case was 'persuasive if not binding',[118] not that it was binding.
[118] Decision [28].
I agree that the reasoning in National Foods was persuasive. Indeed, both parties who appeared before me submitted as much and the main contest before me seemed to be whether I should prefer the majority judgment, or the minority judgment in that decision.
In my view, the Arbitrator did not err by wrongly applying the decision of National Foods. This ground also lacks merit and I refuse leave to appeal on this ground too.
I will make orders dismissing the appeal. I will hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate to Judge Palmer
5 SEPTEMBER 2023