Dhu v Royal Perth Hospital - [2022] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DHU -v- ROYAL PERTH HOSPITAL [2022] WADC 89
CORAM:   FLYNN DCJ
HEARD:   1 JUNE 2022
DELIVERED          :   21 OCTOBER 2022
FILE NO/S:   APP 94 of 2021
BETWEEN:   JODIE MARGARET DHU
Appellant
AND
ROYAL PERTH HOSPITAL
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE
Coram:   ARBITRATOR NUNN
File Number            :   A98392

Catchwords:

Workers compensation - Appeal - Section 156B Arbitrators' powers as to return to work programs - Whether arbitrator erred in law in finding that an arbitrator is not empowered to order that an employer establish a return to work program

Legislation:

Workers' Code of Practice (Injury Management) 2005 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)

Result:

Leave to appeal granted.
Appeal allowed.
Order of arbitrator dated 19 November 2021 is set aside.
The case is remitted to the Workers' Compensation Arbitration Service for re-determination in conformity with these reasons.

Representation:

Counsel:

Appellant	:	Mr M J Lourey
Respondent	:	Mr J I Wilcox

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Moray & Agnew Lawyers

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

Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Marks v Coles Supermarkets [2021] WASCA 176
National Foods Ltd v Green [2005] WASCA 180
Oshlack v Richmond River Council [1993] HCA 11; (1993) 193 CLR 72
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paterson v The Minister for Mines and Petroleum [2018] WASC 200
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Total Marine Services Pty Ltd v Rohan Phillip Hutchinson (Unreported, C7‑2009 (McCann PP) 9 March 2009)
WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137

FLYNN DCJ:

Overview

In December 2012, the appellant (Ms Dhu), suffered an injury to her left shoulder (the Shoulder Injury) while working as a registered nurse for the respondent (RPH) in a position that required her to attend to patients in a hospital ward (Ward Duties). Section 155C of the Workers' Compensation and Injury Management Act 1981 (WA)[1] provides for the establishment of a 'return to work program' by an employer for a worker who has suffered an injury. RPH established a 'return to work program' for Ms Dhu with the result that, by March 2018, she was again working as a registered nurse for RPH. However, Ms Dhu was no longer doing Ward Duties. Her position involved working as a registered nurse attending to patients in a hospital clinic (Clinic Duties).
[1] Unless otherwise stated, future references to statutory references in this judgment to 'the Act' or that omit the name of the statute are references to a provision of the Workers' Compensation and Injury Management Act 1981 (WA).
Ms Dhu does not want to continue with Clinic Duties. She wants to return to Ward Duties. In April 2021, Ms Dhu made a request of RPH, supported by her treating medical practitioner, to return to Ward Duties. RPH refused the request, stating that it considered that a return to Ward Duties risked an aggravation of the Shoulder Injury.[2]
[2] Arbitrator's decision A98392, Jodie Margaret Dhu v Royal Perth Hospital, Mr S Nunn, 19 November 2021 (Arbitrator's Decision) [3].
Section 155C(1)(b) states that, upon certification by a treating medical practitioner of fitness to return to work, an employer must establish a 'return to work program' for an injured worker.
On 5 March 2021, Ms Dhu filed an application for arbitration seeking an order 'requiring RPH to provide a return to work program with a goal of returning Ms Dhu' to a position of performing Ward Duties.[3]
[3] Respondent's appeal book (RAB), page 39.
On 23 June 2021, Arbitrator Nunn (the Learned Arbitrator) made an order that the arbitration 'be determined on the papers, the evidence being the material filed by both parties'.[4]
[4] Appellant's appeal book (AAB), page 40.
On 19 November 2021, the Arbitrator's Decision was published. Relevantly, the Learned Arbitrator reached two conclusions.
First, the Learned Arbitrator agreed with Ms Dhu that, in the circumstances of her case, s 155C had the effect of creating an obligation upon RPH, subject to considerations of reasonable practicality, to establish a return to work program with the goal of returning Ms Dhu to Ward Duties. Neither Ms Dhu nor RPH challenge this conclusion.
Secondly, the Learned Arbitrator agreed with RPH that the Act did not empower the arbitrator to make an order to enforce the obligation of RPH, found in s 155C, to establish a 'return to work program'. The express power to make an order requiring a worker to participate in a program, found in s 156B(2), is contrasted with the absence of an express power in the Act to make an order requiring an employer to establish a program. The Learned Arbitrator was unable to identify an implicit power to make an order that an employer establish a program. Accordingly, Ms Dhu's application for an order that her employer, RPH, establish a 'return to work program', was dismissed.
Ms Dhu appeals to this court against the decision of the Learned Arbitrator. She requires leave to appeal (s 247(1)). Her appeal does not concern an amount of compensation. Accordingly, leave must not be given unless a question of law is involved (s 247(2)(b)). It is convenient to deal with the question of leave when considering the merits of the appeal itself.
Ms Dhu contends that, in dismissing her application, the Learned Arbitrator incorrectly construed provisions of the Act on the powers of an arbitrator, particularly s 156B (the Arbitrator's Powers Issue).[5] For reasons given below, I have resolved the Arbitrator's Powers Issue in favour of Ms Dhu. Properly interpreted, the Act empowers an arbitrator to make an order that an employer establish a 'return to work program'.
[5] Amended appeal notice 28 April 2022. Grounds of appeal 2, 4 and 5.
Ms Dhu also contends that the Learned Arbitrator's decision to determine her application 'on the papers' contravened s 188(1), providing that 'an arbitrator is bound by rules of natural justice' (the Natural Justice Issue). [6] For reasons given below, I have resolved the Natural Justice Issue in favour of RPH. No practical injustice arose from the arbitration having been conducted on the papers.
[6] Amended appeal notice 28 April 2022. Grounds of appeal 1. Ground 3 was abandoned at the hearing of the appeal.
Ms Dhu asks this court to quash the decision of the Learned Arbitrator and to make an order, either, that RPH establish the 'return to work program' sought by Ms Dhu, or, alternatively, that the matter be remitted for determination by a different arbitrator (the Appeal Remedy Issue).[7] For the reasons given below, I will make an order quashing the order of the Learned Arbitrator and making an order that the case be remitted to the Workers' Compensation Arbitration Service for re‑determination in conformity with these reasons. I also conclude that it is not necessary that the case be re-determined by an arbitrator other than the Learned Arbitrator.
[7] Amended appeal notice 28 April 2022. Decision sought 1, 2 and 3. See Marks v Coles Supermarkets [2021] WASCA 176 [103]: 'There is no express power of the District Court to remit a matter to an arbitrator, or to a different arbitrator, for a further or substituted hearing. However, such an order might be made as a "further or other decision, as to costs or otherwise, as the District Court thinks fit", under s 247(7)(b) of the Act.'
In these reasons I outline relevant provisions of the Act (below) and summarise the Arbitrator's Reasons (following) before addressing each of the Arbitrator's Powers Issue, the Natural Justice Issue and the Appeal Remedy Issue.

Relevant provisions of the Workers' Compensation and Injury Management Act 1981

The Act is a law 'relating to the compensation for and the management of employment-related injuries' and provides for 'the resolution of disputes' (long title).
The stated purposes of the Act include the establishment of a workers' compensation scheme dealing with the management of workers directed at enabling an injured worker to 'return to work' and to provide for the resolution of disputes under the Act (s 3(a)(ii), s 3(c)).
The expression 'return to work', defined in s 5, appears in a number of provisions of the Act.[8] The effect of the definition (quoted in full below) will be seen to provide for an injured worker returning to the pre-injury 'position held by the worker' where it is 'reasonably practical for the employer' to 'provide that position' and, otherwise, to a position for which the worker is qualified and capable of performing.
[8] See sections 3, 61, 72B, 155, 155C, 155E, 156B, 158, 158L.
return to work, in relation to a worker who has suffered an injury compensable under this Act, means -
(a)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; or
(b)if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position -
(i)for which the worker is qualified; and
(ii)that the worker is capable of performing,
whether with the employer who employed the worker at the time the injury occurred, or another employer;
Part IX of the Act is entitled, 'Injury management' and includes the following provisions: s 155A Code of practice (injury management); s 155B Injury management system, employers' duties as to; s 155C Return to work programs, employers' duties as to; s 155E Return to work programs, WorkCover WA's powers as to; s 156B Arbitrators' powers as to return to work programs.
WorkCover WA may issue a 'code of practice' (injury management)' (the Code) containing provisions and guidelines on, inter alia, 'injury management systems' and 'return to work programs' (s 155A). WorkCover WA is the name of the body corporate charged with, inter alia, ensuring the efficient and effective operation of the scheme established by the Act (s 100).
The Code is found in the Workers' Code of Practice (Injury Management) 2005 (WA). Parts II and III are concerned, respectively, with 'injury management systems' and 'return to work' programs.
It is an offence for an employer to fail to establish and implement, consistently with the Code, an 'injury management system' (s 155B).
The effect of s 155C (quoted in full below) is that, by s 155C(3), an employer must establish a 'return to work program' that is in accordance with the Code when the circumstances proscribed by s 155C(1), s 155C(2) exist. Where the obligation arises, it is an offence for an employer to fail to establish and implement, consistently with the Code, a 'return to work program' (s 155C(3)). The definition of 'return to work program' in s 155, namely a 'return to work program established under s 155C(1)', adds nothing to the content of the obligations upon an employer found in s 155C:
155CReturn 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.
(3)An employer must ensure that the establishment, content and implementation of a return to work program are in accordance with the code.
Penalty applicable to subsections (1) and (3): $2000.
Consistent with the functions of WorkCover WA in administering the Act, it may inform a worker, an employer and an employer's insurer of their obligations concerning return to work programs (s 155E).
The effect of s 156B (quoted in full below) is that an employer or a worker may apply for an order of an arbitrator requiring the worker to participate in a 'return to work program' (s 156B(1)). Upon satisfaction of three criteria (see below at s 156B(2)(a), 156B(2)(b), and 156B(2)(c)), an arbitrator may require a worker to participate in a return to work program (s 156B(2)). An arbitrator may require a worker to participate in a return to work program other than that proposed by a party to an application before the arbitrator (s 156B(3)):

156BArbitrators' 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.

Section 156B(2) complements s 72B on the circumstances when a worker's entitlement to compensation may be suspended. An arbitrator may suspend compensation for a worker who is the subject of an order to participate in a return to work program made under s 156B(2) and who, without a reasonable excuse, refuses or fails to participate in a 'return to work program' that is consistent with the Code (s 72B(1), s 72B(2)).
Part IX of the Act is entitled, 'Dispute resolution' and includes: s 182ZT Application for arbitration; s 188 Practice and procedure, generally (arbitration); s 190 Directions of arbitrator; s 198 Ways of conducting arbitration proceedings; s 211 Decisions generally (arbitrator); s 212 Conditional and ancillary orders and directions (arbitrator).
An application for arbitration of a dispute cannot be made unless conciliation of the dispute, under the Act, has failed to resolve the dispute (s 182ZT).
'Dispute', for the purposes of arbitration and conciliation is defined in s 176. A 'dispute' includes 'a dispute in connection with an obligation imposed under Part IX' (s 176(1)(b)). (Recall that Part IX on Injury Management includes s 155C (quoted above) on 'employers' duties as to return to work programs'.)
Arbitrators have exclusive jurisdiction to examine, hear and determine all disputes (s 176(3)). A 'dispute' also includes 'any other dispute or matter for which provision is made under' the Act for determination of an arbitrator (s176(1)(c)). (Recall that s 156B (quoted above) makes provision for an application to an arbitrator requiring a worker to participate in a return to work program.)
On an application, an arbitrator, subject to the Act, may make such decisions as the arbitrator thinks fit (s 211). A decision includes 'an order, award, direction or determination' (s 5).
An arbitrator may make any ancillary order or direction that the arbitrator considers appropriate for achieving the purpose for which the arbitrator may make an order or direction (s 212).

Arbitrator's Decision: Facts

The findings of fact of the Learned Arbitrator, set out in the following paragraphs, were not challenged by Ms Dhu or RPH.
Sometime before December 2012, Ms Dhu commenced employment for RPH in a full‑time position as a registered nurse engaged in Ward Duties.
In December 2012, Ms Dhu injured her left shoulder. Her claim for compensation under the Act was accepted by RPH and weekly payments of compensation commenced.
Between January 2013 and December 2016, Ms Dhu engaged with a 'return to work program' established by RPH with a goal of Ms Dhu returning to 'her pre‑injury duties'.
In December 2016, a vocational rehabilitation provider, STAR Injury Management, assumed a role in administering the 'return to work program'.
In the period between December 2012 and July 2017, Ms Dhu 'lacked the physical capacity to perform' her pre‑injury duties.[9] This finding was made by the Learned Arbitrator after reviewing evidence that included medical reports dated May 2017 (Dr Low) and June 2017 (Dr Silbert).[10]
[9] Arbitrator's Decision [37].
[10] Arbitrator's Decision [30], [31], [36] - [37].
By March 2018, Ms Dhu had commenced working as a registered nurse in two positions that, combined, resulted in her working full‑time for RPH engaged in Clinic Duties.[11]
[11] Arbitrator's Decision [26] - [28].
By April 2021, Ms Dhu had recovered from injuries, evident in 2017, such that she had demonstrated the capacity to perform her pre‑injury duties ie Ward Duties.[12] This finding was made after reviewing evidence that included medical reports dated April 2021 (Dr Silbert) and July 2021 (Dr Thompson).[13]
[12] Arbitrator's Decision [53].
[13] Arbitrator's Decision [49] - [52].
In April 2021, Ms Dhu's treating medical practitioner, Dr Silbert, wrote that she was 'currently fit to perform all aspects of her normal occupation as a registered nurse on an acute medical ward in a public hospital'.[14] In July 2021, Dr Thompson reached the same conclusion and recommended that Ms Dhu commence a gradual reintroduction to Ward Duties.
[14] Arbitrator's Decision [51].
RPH maintains separate and distinct positions of, on the one hand, a registered nurse engaged in Ward Duties, and, on the other hand, a registered nurse engaged in Clinic Duties.[15]
[15] Arbitrator's Decision [38] - [43].
Upon the factual finding that, in April 2021, Dr Silbert reported that Ms Dhu was fit to perform Ward Duties, the Learned Arbitrator addressed two legal issues. First, consideration was given to whether RPH was subject to a statutory obligation, as a result of s 155C, to establish a 'return to work program' for Ms Dhu (see below, 'Learned Arbitrator's Reasons: s 155C'). Secondly, consideration was given to the statutory power, if any, of an arbitrator to enforce such an obligation (see below, 'Learned Arbitrator's Reasons: s 156B').

Arbitrator's Decision: s 155C

On the first issue, the Learned Arbitrator considered that s 155C(1), s 155C(2), read with the definition of 'return to work' in s 5 resulted in RPH having an obligation to establish a 'return to work program' for Ms Dhu to enable her to return to the position she held immediately before her injury in December 2012 ie a position doing Ward Duties so long as it was reasonably practical for RPH to provide that position to Ms Dhu.
In reaching this conclusion on the effect of s 155C(1), s 155C(2), the Learned Arbitrator made reference to a number of matters:[16]
(a)The definition of 'return to work' in s 5 privileges a worker's return to a pre-injury position (par (a)) over a return to another position (par (b)).[17]
(b)Consistent with the definition of 'return to work', the effect of s 155C(2) is that the obligation to establish a return to work program found in s 155C(1) continues unless and until a worker has returned to the worker's pre-injury position. The obligation found in s 155C(1) is not finally discharged by an employer establishing a return to work program that results in the worker taking a position other than the pre-injury position.[18]
(c)The ordinary meaning of s 155C(1) is to create a continuing obligation upon an employer, after either of the events identified in s 155C(1)(a) or s 155C(1)(b), to establish a 'return to work program'.
(d)Relevantly, as a result of s 155C(1)(b), the obligation arises upon the worker's treating medical practitioner certifying that a worker has capacity to return to work.
(e)Upon certification, consistent with the definition of 'return to work', the program established by the employer must have the goal of returning the worker to a pre-injury position unless either the worker does not have the capacity to work in that position or it is not reasonably practical for the employer to provide that position to the worker.
[16] Arbitrator's Decision [62] - [82].
[17] Arbitrator's Decision [66].
[18] Arbitrator's Decision [61], [62] and [65].

Upon the view of s 155C taken by the Learned Arbitrator, three findings of the Learned Arbitrator are of consequence for this appeal.
First, Ms Dhu's return to work in 2018 to Clinical Duties was not her pre-injury position[19] and this fact had the consequence that the obligation upon RPH to establish a 'return to work program' was not finally discharged in 2018.
[19] Arbitrator's Decision [44].
Secondly, the medical report of Dr Silbert in April 2021 was, for the purposes of s 155C(1)(b), certification that Ms Dhu had capacity to return to work[20] (the Certification Finding). This fact had the result that RPH must, in accordance with s 155C(1), establish a 'return to work program'.
[20] Arbitrator's Decision [72] - [78].
Thirdly, that the arbitrator was satisfied that Ms Dhu had 'total capacity for her pre-injury role'[21] (the Total Capacity Finding) had the consequence that RPH must establish a program having the goal of returning Ms Dhu to her pre-injury position unless it was not reasonably practical for RPH to provide that position to Ms Dhu (the Reasonably Practical Question).
[21] Arbitrator's Decision [79] - [81].
Neither Ms Dhu nor RPH challenge the Learned Arbitrator's interpretation of s 155C or the three findings identified in the preceding paragraphs.[22] I do not consider the Learned Arbitrator's interpretation of s 155C to be plainly wrong. Accordingly, this appeal will be determined on the basis that the Learned Arbitrator's interpretation of s 155C (and the three findings noted above) are correct.
[22] See ts 61.
The Learned Arbitrator proceeded to consider the evidence on the Reasonably Practical Question (discussed below when discussing the Appeal Remedy Issue) and whether the Act empowered an arbitrator to make an order that an employer establish a return to work program (discussed below under the heading Arbitrator's Decision: s 156B).

Arbitrator's Decision: s 156B

The Learned Arbitrator considered that neither s 156B, nor any other provision of the Act, conferred power upon an arbitrator to make an order that an employer establish a 'return to work program'.
The Learned Arbitrator identified a tension between the arbitrator's jurisdiction to deal with a dispute in connection with an obligation imposed under Part IX (including s 155C on employer obligations regarding return to work programs), conferred by s 179(3), and the powers of an arbitrator conferred by s 156B (on the 'Arbitrators' powers as to return to work programs').[23]
[23] Arbitrator's Decision [100] - [104].
The Learned Arbitrator 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).[24]
[24] Arbitrator's Decision [121] - [134].
The Learned Arbitrator was unable to find in s 156B(1),[25] s 156(3)[26] or s 176 and s 212[27] an express or implied source of power for an arbitrator to make an order that, in accordance with s 155C, an employer establish a 'return to work program'.
[25] Arbitrator's Decision [140].
[26] Arbitrator's Decision [147] - [148].
[27] Arbitrator's Decision [137].
The absence of an arbitrator's power to make an order to enforce s 155C was said to be consistent with an employer being exposed to the risk of criminal prosecution for failure to comply with the same section.[28] 'Ordering an employer to provide something that they already have an obligation on pain of penalty to provide' was said to be 'redundant'.[29]
[28] Arbitrator's Decision [102] - [106].
[29] Arbitrator's Decision [139].
In the result, the Learned Arbitrator concluded that an arbitrator lacks power to order RPH to comply with s 155C and 'any remedy' lies with WorkCover WA enforcing RPH's obligations.[30]
[30] Arbitrator's Decision [152] - [155].

Arbitrator's Powers Issue: Analysis

When identifying relevant provisions of the Act earlier in these reasons, I noted that:
(a)Arbitrators have exclusive jurisdiction to examine, hear and determine a dispute in connection with an obligation imposed under Part IX (s 177). Section 155C is in Part IX of the Act. When exercising jurisdiction, an arbitrator may make such decisions ie orders, awards, directions or determinations as the arbitrator thinks fit (s 211, s 5).
(b)The effect of s 156B is that: an employer or a worker may apply for an order of an arbitrator requiring the worker to participate in a return to work program (s 156B(1)); an arbitrator may require a worker to participate in a 'return to work program' if satisfied of three matters (s 156B(2)); and the arbitrator may require a worker to participate in a program other than one proposed by a party (s 156B(3)).
Ms Dhu's submissions on the Arbitrator's Powers Issue are responsive to the paradigm of the Arbitrator's Decision insofar as she responds to the Learned Arbitrator's reasoning that focus on the 'nonsensical' outcome of s 156B(2) requiring Ms Dhu to prove her refusal to participate in a 'return to work program' before an order could be made that RPH establish a program.[31] For example, emphasis is placed in Ms Dhu's submissions upon s 156B(1) making specific reference to an application by a worker for an order that a worker participate in a 'return to work program'.
[31] Appellant's outline of submissions on appeal 14 April 2021 [60] - [62] (Appellant's Outline).
RPH's submissions on the Arbitrator's Powers Issue, in essence, adopt the reasoning of the Learned Arbitrator.[32] For RPH, in the construction of s 156B it is significant that the provision does not expressly empower an arbitrator to make an order 'against' an employer.[33] The preferable interpretation of s 156B was that if (and only if) an employer proposed a 'return to work program', an arbitrator was empowered to make orders concerning the content and enforcement of the worker's participation in a program.[34]
[32] Respondent's Outline pars 21, 27, 30, 31 - 32.
[33] Respondent's Outline par 32(a).
[34] Respondent's Outline par 30(a).
In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14], Kiefel CJ, Nettle and Gordon JJ observed:
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.
My view is that the natural and ordinary meaning of s 156B, concerned with conditions that must be satisfied before an arbitrator makes an order that a worker participate in a 'return to work program', does not otherwise qualify the jurisdiction of an arbitrator, found in s 179, 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'.
Worker participation in a program and employer establishment of a program are separate and distinct statutory obligations. A worker's obligation is found in the complementary provisions of s 156B(2) concerning the power of an arbitrator to make an order and s 72B concerning the circumstances when an arbitrator may, by order, suspend compensation. An employer's obligation is found in s 155C.
The context and purpose in which s 179 and s 156B are to be construed include that the purpose of the Act is to provide for the resolution of disputes under the Act in a manner that is 'informal and quick' (s 3). The terms in which jurisdiction ('in connection with' in s 179) and power ('such directions as thinks fit' in s 211) are wide. There exists a mechanism for enforcement of non-money orders insofar as s 225 provides that it is an offence to fail to comply with an order of an arbitrator. These provisions favour a construction of the Act that results in an arbitrator having the jurisdiction and power to make an order, on the application of a worker, to enforce the statutory obligation of an employer found in s 155C.
The jurisdiction (s 176(3)) and powers of an arbitrator (s 211(1)) are each expressed to be 'subject to this Act':
(a)Section 156B(1), making provision for an application by an employer or worker, is not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). In any event, s 156B(1) is concerned with an application for an order that a worker participate in a program. Ms Dhu's application is that RPH establish a program. If Ms Dhu's application is characterised as an application under s 156B(1) by a worker for a worker to participate in a program, it may be conceded that the result is, phonologically, awkward. However, this fact is not sufficient to displace the jurisdiction (s 176) and powers (s 211) of an arbitrator to determine a dispute concerning s 155C and to order, if appropriate, the establishment of a 'return to work program' in accordance with s 155C.
(b)Section 156B(2), concerned with the conditions to be satisfied before an arbitrator makes an order that a worker participate in a program, is also not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). It is 'nonsensical'[35] to speak (in terms of s 156B(2)(b)) of an arbitrator being satisfied of a worker refusing to participate in a program as a condition for making an order, on the application of a worker, that the worker participate in a program. However, this nonsensical result is avoided if s 156B(2) is construed so as not to apply to applications for an order that an employer establish a program. Such as construction is consistent with the opening words of s 156B(2) ('an arbitrator may require the worker to participate in a program if …') and s 72B on suspension of compensation.
(c)Section 156B(3), empowering an arbitrator to require a worker to participate in a 'return to work program' other than one proposed by a party to an application, for the same reasons as apply to s 156B(1), is also not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). Section 156B(3) is concerned with an order to require a worker to participate in a program. Ms Dhu's application is that RPH establish a program. Section 156B(3), anticipating an arbitrator making an order on the content of a 'return to work program' for the purpose of making an order for a worker participating in that program, is not inconsistent with an arbitrator having the power to order that an employer, in accordance with s 155C, establish a program.
(d)Nothing in any other provision of Part XI (Dispute resolution) or Part IX (Injury management) suggest any qualification to the natural and ordinary meaning of s 176 and s 211 other than that found in s 156B(2) (discussed above).
[35] Arbitrator's Decision [125].
It is an offence for an employer, in contravention of s 155C, to fail to establish a 'return to work program' (s 155C(3)). However, there is reason for the Act to be construed with the result that a worker may make an application to an arbitrator for an order that an employer establish a program and WorkCover WA enjoying the discretion to commence a prosecution for an employer's failure to establish a program:
(a)In the event WorkCover WA initiate a prosecution and an employer is convicted, the court exercising criminal jurisdiction has no power to order the employer to establish a return to work program in accordance with s 155C(1).
(b)Any issue as to the criminal responsibility of an employer complying with the terms of an order of an arbitrator with respect to establishment of a 'return to work program' in accordance with s 155C(1) is addressed by s 31 of the Criminal Code providing that a person is not criminally responsible for conduct 'in obedience to the order of a competent authority which the person is bound by law to obey'.
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. Generally, it is inappropriate to read a provision conferring jurisdiction or granting power to a court or tribunal as containing limitations not found in the words of the provision.[36] Having regard to this general principle and the natural and ordinary meaning of the words of s 176 against a background of the context and purpose of the Act, I have concluded that an arbitrator has the power to make an order that an employer, in accordance with s 155C, establish a 'return to work program'.
[36] Oshlack v Richmond River Council [1993] HCA 11; (1993) 193 CLR 72 [21].

Natural Justice Issue

I have noted that, on 23 June 2021, the Learned Arbitrator made a direction that the arbitration 'be determined on the papers'. More particularly, an order was made that 'the matter be reserved for determination on the papers, the evidence being the material filed by both parties' and for the filing of written submissions of the parties.[37]
[37] AAB, page 40.
In written reasons accompanying the direction of 23 June 2021, the Learned Arbitrator observed that neither party proposed to call oral evidence and that a significant number of facts appeared to be uncontentious.[38] In concluding that the matter was amenable to determination on the papers, the Learned Arbitrator made reference in those written reasons to the powers of the arbitrator found in s 198(3), s 198(4). Section 198 concerns the ways of conducting arbitration proceedings. Relevantly, s 198(3), s 198(4) state:
(3)If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.
(4)An arbitrator may take into account a written submission prepared by a legal practitioner or registered agent acting for a party to a proceeding and submitted by or on behalf of the party, whether or not the party is represented by a legal practitioner or registered agent at any hearing of the proceeding.
[38] AAB, pages 39 - 40.
Ms Dhu's complaint is that the arbitrator's obligation to comply with the rules of natural justice found in s 188(1) required, in the circumstances of her case, an oral hearing and that the determination of her case on the papers was a contravention of those rules that amounted to an error law.
Ms Dhu submits that it is of significance that, in her case:
(a)there was a lack of clarity with respect to the documents filed by the opposite party that were before the Learned Arbitrator;[39]
(b)the case was complex and the outcome was significant to Ms Dhu;[40]
(c)the legal issues that arose for consideration by the Learned Arbitrator were peculiarly amenable to resolution by means of an oral hearing as distinct from a hearing on the papers.[41]
[39] Appellant's Outline pars 18 - 21, 27.
[40] Appellant's Outline par 27.
[41] Appellant's Outline par 30.
RPH denies that there was a contravention of the rules of natural justice in circumstances where Ms Dhu did not propose to give evidence, RPH did not propose to call any oral evidence or cross‑examine any person and both parties were 'alive' to the critical issue being whether, given the terms of s 156B, an arbitrator is empowered to make an order for the establishment of a 'return to work program'.[42]
[42] Respondent's Outline of Submissions on Appeal 19 April 2021 (Respondent's Outline) par 17(c).
The rules of natural justice incorporated by s 188 do not exist in an abstract form. The rules comprise those procedures that, in the circumstances of a particular case, are necessary for an arbitrator to discharge the obligation of ensuring that, before a decision is made, the arbitrator hears from the parties (hearing rule) and that the arbitrator is impartial (bias rule).[43]
[43] Paterson v The Minister for Mines and Petroleum [2018] WASC 200 [63].
The hearing rule requires an arbitrator to put in place procedures so that a party knows the case against them and is given an opportunity to reply to it. The particular procedures necessary to discharge this obligation is dependent upon the legislative framework for making the particular decision and the particular circumstances of the case.
The legislative framework for making the decision in the case of Ms Dhu includes provisions of the Act and the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (the Rules).
The effect of the Act includes, in Ms Dhu's case, that an arbitrator: is not bound by the rules of evidence (s 188(2)); may be informed on any matter in such manner as the arbitrator thinks fit (s 188(4)(a)); may give directions at any time and do whatever is necessary for the speedy and fair conduct of the proceeding (s 190(1)); must allow a worker who is party to a case be represented by a legal practitioner (s 195).
The effect of the Rules includes, in Ms Dhu's case, that: she lodge an application for arbitration in the approved form (r 23, Form 150)[44]; she lodge and serve with the application, copies of all material that she proposes to adduce in evidence (r 25(1)) or details of material that she proposes to adduce in evidence (r 25(3));[45] RPH lodge a reply in the approved form, identifying the parts of the application in dispute (r 27);[46] RPH lodge and serve with the reply, copies of all material that it proposes to adduce in evidence (r 29(1)) or details of material that it proposes to adduce in evidence (r 29(5));[47] 'with the exception of medical witness', the arbitrator not confer with a party or witness except at a hearing' (r 40); provision for a directions hearing for purposes that include defining the issues to be determined, listing the dispute for hearing and ensuring effective case management of the dispute (r 42).
[44] The application is included in the RAB, page 34.
[45] This information appears in the RAB, pages 38, 42.
[46] The reply is included in the RAB, page 190.
[47] This information appears in the RAB, pages 190 - 191.
The particular circumstances of Ms Dhu's case relevant to the procedures necessary to discharge the obligation imposed by the 'hearing rule', included:
(a)Ms Dhu, by her application of 5 March 2021 identifying s 156B as the source of power for an order that she was seeking, namely, that RPH provide a 'return to work program' with a goal of returning her to the position held by her before her injury occurred;[48]
(b)RPH, by its written reply of 19 March 2021, disputing that there was a 'reasonable basis' under s 156B for exercising the power given that RPH had previously formulated 'return to work programs' for Ms Dhu and (it was claimed) that medical evidence did not support Ms Dhu's fitness to return to her pre‑injury position;[49]
(c)as at 23 June 2021, each of Ms Dhu and RPH had indicated to the arbitrator that neither intended to adduce oral evidence and neither sought to cross-examine the author of any document included in the material filed by the opposite party,[50] prompting the Learned Arbitrator, on his own initiative and without hearing from the parties, to give a direction for the case to be determined on the papers;
(d)on 9 July 2021, Ms Dhu requested an opportunity to be heard on the issue of whether the case was appropriate for determination on the papers;[51]
(e)on 20 August 2021, following an oral directions hearing in which Ms Dhu's lawyer made submissions to the effect that the case was not suitable for determination on the papers, the Learned Arbitrator made directions for the filing of materials, including written submissions and responsive written submissions, in anticipation of the case being determined on the papers;[52] and
(f)in the period 22 - 29 September 2021, the parties filed written submissions,[53] including responsive submissions,[54] in which each party makes submissions to the Learned Arbitrator on, inter alia, the proper interpretation of s 155C relevant to whether RPH had discharged a statutory obligation to establish a 'return to work program' for Ms Dhu[55] and the proper interpretation of s 156B relevant to whether the arbitrator had power to make the order for a 'return to work program' as sought by Ms Dhu.[56]
[48] RAB, page 37.
[49] RAB, page 195.
[50] Subject only to evidence arising from a review of Ms Dhu by Dr Thompson, arranged for 7 July 2021. AAB, page 39.
[51] AAB, page 41.
[52] AAB, page 53.
[53] RAB, page 513 (Ms Dhu), page 519 (RPH).
[54] RAB, page 525 (Ms Dhu), page 529 (RPH).
[55] For example, see the submissions of Ms Dhu in the RAB at page 518 par 31 and of RPH at page 523, par 14.
[56] For example, see the submissions of RPH in the RAB at pages 521 - 522 par 12(a); par 13 and of Ms Dhu in the RAB at pages 525 - 526.

Given the provisions of the Act and Rules and the particular circumstances of Ms Dhu's case outlined in the preceding paragraph, I do not agree with Ms Dhu that the Learned Arbitrator's decision to determine the case on the papers was an error.
It may be accepted that the power of the Learned Arbitrator to conduct the proceedings on the papers, conferred by s 198, is subject to the exercise of that power not resulting in a contravention of the rules of natural justice. However, those rules do not universally require an oral hearing.[57]
[57] WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 [9].
No credibility findings of Ms Dhu (or any other person) were necessary in order for the Learned Arbitrator to make findings of fact relevant to an issue in the case. The findings of fact by the Learned Arbitrator in the case would not have been enhanced by the Learned Arbitrator forming an impression as to the creditability of any person or assessing the resilience of any author of a document considered by the Learned Arbitrator.
It may be accepted that an oral hearing that includes an address by lawyers on the factual and legal issues in a case may be conducive to clarifying the issues that are relevant to the determination of the case. It may also be accepted that the procedures necessary to achieve the objective of 'practical justice' will depend on matters that include the importance of the matter being determined, the number and complexity of the issues involved in the case and the volume of materials involved in the case.[58]
[58] Paterson v The Minister for Mines and Petroleum [66]; Appellant's Outline, par 27.
However, Ms Dhu makes no complaint about the findings of fact of the Learned Arbitrator. The lawyers for each party made fulsome written submissions on the legal issues in the case, save for the Reasonable Practicality Question (discussed below). Ms Dhu does not identify a document that was before the Learned Arbitrator that she did not have an opportunity to address. Ms Dhu suffered no practical disadvantage, compared to RPH, by not being able to put her case in an oral hearing.[59]
[59] WZARH [11].
The Learned Arbitrator was required to ensure that, in practice, Ms Dhu and RPH knew the issues that were to be determined in the arbitration and were given an opportunity to adduce evidence relevant to the determination of those issues and to make submissions on those issues; 'the concern of the law is to avoid practical injustice'.[60] Compared to an objective standard of 'practical justice', Ms Dhu was given an adequate opportunity to adduce evidence and make submissions.
[60] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, [37] (Gleeson CJ).
The Learned Arbitrator's determinations of 23 June 2021 and 20 August 2021 did not result in a departure from the rules of natural justice that applied to the arbitration as a result of s 188(1).
The effect of s 247(4) is that an application for leave to appeal cannot be made more than 28 days after the day on which written reasons were given to Ms Dhu. Ms Dhu's application for leave, not made until after the arbitration was determined, was made more than 28 days after the (interlocutory) orders that the arbitration be heard on the papers, were given to Ms Dhu.
This court does not have power to extend the time for making an application for leave.[61] On my finding, there is no error in the interlocutory order. The application for leave must be dismissed because it is out of time.
[61] St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37 [8] - [9].
Where an error in an interlocutory order affects the final order, time does not begin to run until the final order is made.[62] If, contrary to my finding, there was an error in the interlocutory order of the Learned Arbitrator, the error did not affect the final order and the application for leave must be dismissed because the question of law raised does not warrant the grant of leave.
[62] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [5] - [6], [49]; Total Marine Services Pty Ltd v Rohan Phillip Hutchinson (Unreported, C7‑2009 (McCann PP) 9 March 2009) [26].

Appeal Remedy Issue

In respect of the Arbitrator's Powers Issue, Ms Dhu has been successful in demonstrating an error by the Learned Arbitrator on a question of law. The Learned Arbitrator made an error in finding that the Act did not empower an arbitrator to make an order that an employer establish a 'return to work program'. In the circumstances of this case, it is in the interests of justice to grant leave to appeal under s 247(1). [63]
[63] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20] (Buss JA).
Leave having been granted, the appeal proceeds by way of a review of the decision of the Learned Arbitrator (s 247(5)). Subject to a grant of leave to adduce additional evidence in the appeal (s 247(6)), the review in this court is on the materials before the arbitrator.[64] No application to adduce additional evidence was made by a party to the appeal.
[64] Pacific Industrial Co v Jakovljevic [2008] WASCA 60; Marks v Coles Supermarkets [2021] WASCA 176 [103].
This court may 'quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance' (s 247(7)(a)). Alternatively, the court may remit the case to an arbitrator or to a different arbitrator for a further or substituted hearing (s 247(7)(b)).[65]
[65] Marks v Coles Supermarkets [103].
Within the constraints marked out by the nature of the appellate process, this court must conduct a 'real review', substituting its own decision for that of the arbitrator. This court's decision is made 'by reference to the facts found by the arbitrator which have not been successfully challenged and such findings of fact that this court is able to make by reference to the written record'.[66]
[66] Marks v Coles Supermarkets [131].
I have noted, under the heading Arbitrator's Decision: s 155C that the Learned Arbitrator's interpretation of s 155C and findings relevant to that interpretation, including the Certification Finding and the Total Capacity Finding, are not challenged by RPH. As a result of my finding on the Arbitrator's Power Issue, that an arbitrator is empowered to enforce an employer's obligation to establish a 'return to work program' found in s 155C, the sole outstanding issue is the Reasonable Practicality Question ie RPH must establish a program having the goal of returning Ms Dhu to her pre-injury position unless it is not reasonably practical for RPH to provide that position to Ms Dhu.
The Learned Arbitrator, on the assumption that RPH may have an obligation to establish a 'return to work program', identified two 'factors or limitations that might impact on whether RPH was obliged to provide Ms Dhu with a 'return to work program' one of which was the Reasonably Practical Question.[67]
[67] Arbitrator's Decision [84] - [96].
First, RPH asserted that it would be unreasonably wasteful to expend funds on a second 'return to work program' given the first 'return to work program' resulted in Ms Dhu returning to a position that involved Clinic Duties and given a statutory limit to compensation being 'a sum payable equal to the reasonable expenses likely to be incurred in respect of vocational rehabilitation not exceeding 7% of the prescribed amount'.[68]
[68] See sch 1, cl 17(1a): Medical and other expenses. In addition to weekly payments of compensation payable, a sum is payable equal to the reasonable expenses incurred or likely to be incurred in respect of - … (1a) vocational rehabilitation up to, but not exceeding, in the aggregate, a sum equal to 7% of the prescribed amount ….'.
The Learned Arbitrator dealt with this assertion by concluding that the statutory limit had not been reached and that the obligation to establish a 'return to work program' with respect to a pre-injury position upon certification of a treating medical practitioner (Ms Dhu's 'second' program) was independent of the obligation to establish Ms Dhu's 'first' 'return to work program'.[69] I note that there was evidence before the Learned Arbitrator that, as at 5 April 2018, the prescribed entitlement of $17,318 had not been reached.[70] The decision in National Foods Ltd v Green [2005] WASCA 180 [11] (Wheeler JA), 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.[71]
[69] Arbitrator's Decision [86] - [88].
[70] RAB, page 335.
[71] National Foods Ltd v Green [11], '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 second 'factor or limitation' addressed by the Learned Arbitrator was whether it was reasonably practical for Ms Dhu to return to her pre-injury position, noting that it 'has been some time since Ms Dhu's injury' and it 'is a question of fact that can only be answered by reference to the evidence'.[72] The Learned Arbitrator proceeded to observe that there was 'almost no evidence' on the question and concluded that he 'was unable to arrive at a finding on this point one way or the other'.[73]
[72] Arbitrator's Decision [89], [93].
[73] Arbitrator's Decision [94] - [95].
My own review of the materials confirms the observation of the Learned Arbitrator on the absence of evidence on whether, proximate to the arbitration in November 2021, it was reasonably practical for RPH to provide a Ward Duties position to Ms Dhu:
(a)The contents of RPH's book of documents filed in the Arbitration,[74] includes a request by (RiskCover on behalf of) RPH of Dr Low to provide a 'return to work program' for Ms Dhu to return to her pre-injury Ward Duties role, if recommended by him.[75] It may be inferred from the fact of this request that, at the time of the request, the provision of Ward Duties position was considered reasonably practical by RPH. However, the request to Dr Low was made before May 2017, a significant period of time before November 2021.
(b)The contents of Ms Dhu's book of documents filed in the arbitration,[76] include communications from RPH from which it may be possible to infer the provision of a pre-injury position to Ms Dhu was considered reasonably practical by RPH. However, those communications were not more recent than an email from RPH to RiskCover dated 1 November 2016 ie a significant period of time before November 2021.[77]
(c)On 5 July 2021, lawyers on behalf of RPH wrote to a medical expert seeking advice on Ms Dhu's capacity to engage in a pre‑injury position.[78] One inference from this communication is that RPH considered a Ward Duties position to be reasonably practical for her.However, an equally likely explanation for the communication is that, subject to the reply, the lawyers for RPH proposed to seek instructions from RPH on whether a pre-injury position was reasonably practical for Ms Dhu.
[74] RAB, pages 501 - 512.
[75] RAB, page 509 (see question 7 a.).
[76] RAB, pages 225 - 500 and 229 - 224.
[77] RAB, page 347. (The email contains reference to the contents of a 'duties register' associated with Ward Duties that Ms Dhu would be required to undertake.)
[78] RAB, page 222. See question 'k'.
Upon the Certification Finding and the Total Capacity Finding, RPH is obliged to establish a 'return to work program' with a stated goal of returning Ms Dhu to the position she held immediately before her injury in December 2012, unless RPH proves that it would not be reasonably practical for it to provide that position to Ms Dhu upon her successful completion of that program.
The bifurcated definition of 'return to work' in s 5 privileges a worker having an opportunity, if reasonably practical, to take up a pre-injury position (per (a)) unless RPH proves that her pre-injury position is not available.[79]
[79] Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88, 119 (McHugh J): 'When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso ... Whatever form the statute takes, the question has to be determined as one of substance ...'
In not making a finding on the Reasonably Practical Question, the Learned Arbitrator has implicitly determined that RPH has failed to prove that it was not reasonably practical to provide Ms Dhu with her pre-injury position.
My view is that, notwithstanding RPH'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 is necessary for RPH to be given an opportunity to adduce evidence and make submissions on the Reasonably Practical Question.
RPH's case in the arbitration was three-fold. First, the Act did not empower an arbitrator to order RPH to establish a 'return to work program'.[80] Secondly, if the Act empowered the arbitrator to make such an order, the arbitrator should decline to make such an order because Ms Dhu lacked the capacity to work in her pre-injury position.[81] Thirdly, there was 'no reasonable basis' for the orders sought by Ms Dhu.[82]
[80] For example, RPH's Responsive Submissions for Arbitration pars 1, 2, 4.
[81] For example, RPH's Responsive Submissions for Arbitration par 3.
[82] For example, RPH's Responsive Submissions for Arbitration par 5.
It ought to have been apparent to RPH that, if it failed with an argument that the arbitrator lacked power to order that an employer to establish a 'return to work program', the Reasonably Practical Question arose for consideration. If it was not reasonably practical for RPH to provide Ms Dhu with the position that she held before her injury in December 2012, it would have been futile for an arbitrator to make an order for the establishment of a 'return to work program' with a goal of returning Ms Dhu to that position.
It was only because RPH succeeded with the (flawed) argument that the arbitrator lacked power to make the order sought by Ms Dhu that the prospect of making an order that may or may not be futile did not arise for consideration.
If the Learned Arbitrator had correctly determined that an arbitrator had the power to make an order that an employer establish a 'return to work program', and having made the Certification Finding and the Total Capacity Finding, my view is that it would have been incumbent upon the Learned Arbitrator to invite evidence and submissions from both parties on the Reasonably Practical Question as a necessary step in determining what orders ought be made. Nine years and 11 months had elapsed since Ms Dhu had last occupied her pre‑injury position. This factor favoured the Learned Arbitrator inviting the views of the parties on appropriate orders.
In reaching this conclusion, I have inferred that RPH did not make a deliberate decision not to adduce evidence in the arbitration on the Reasonably Practical Question. In support of this conclusion, I note that the Reasonably Practical Question is not identified as an issue in any of the following: Ms Dhu's application for arbitration;[83] RPH's (Submissions in) Reply;[84] Ms Dhu's Outline of Submissions (in the Arbitration);[85] RPH's Submission for Arbitration;[86] Ms Dhu's Responsive Submissions in the Arbitration;[87] RPH's Responsive Submissions for Arbitration (other than an assertion that 'given the background, RPH submits that it was not reasonably practical to provide Ms Dhu with her pre-injury position');[88] the documents containing directions and the 'current position' summary of the Learned Arbitrator following directions hearings on each of 23 April 2021;[89] 29 April 2021;[90] 26 May 2021;[91] 23 June 2021;[92] and 20 August 2021.[93]
[83] RAB, page 37.
[84] RAB, pages 19 - 20.
[85] RAB, page 518.
[86] RAB, 521, especially content of par 12.
[87] RAB, 525.
[88] RAB, page 530, par 3(a).
[89] AAB, page 8.
[90] AAB, pages 25 - 26.
[91] AAB, pages 35 - 36.
[92] AAB, pages 39 - 40.
[93] AAB, pages 53 - 54.
It may be, as Ms Dhu submitted in this court, that issues such as the Reasonably Practical Question, would have been more likely to come to the attention of the parties if the arbitration had proceeded by way of oral hearing. However, this fact does not alter my conclusion on the Natural Justice Issue. If the Learned Arbitrator had correctly determined, on the papers, that an arbitrator had the power to make an order that an employer establish a 'return to work program', it would have been open to the Learned Arbitrator to invite submissions on whether to determine the Reasonably Practical Question by means of an oral hearing or on the papers.
In my view, it is appropriate to quash the order of the Learned Arbitrator that Ms Dhu's application for arbitration be dismissed and that the case be remitted to the Workers' Compensation Arbitration Service for re-determination in conformity with these reasons.
It is apparent from the Certification Finding, the Capacity to Work Finding and my conclusion on the Arbitrator's Powers Issue, that the only issue requiring determination by the Workers' Compensation Arbitration Service on the remittal is the Reasonably Practical Question.
The effect of the Reasonably Practical Question is that, on the remittal, an arbitrator will make an order that RPH establish, in conformity with the Code, a 'return to work program' with a stated goal of returning Ms Dhu to the position she held immediately before her injury in December 2012, unless RPH satisfies the arbitrator that it would not be reasonably practical, upon Ms Dhu completing a 'return to work program', for RPH to provide that position to her. For the avoidance of doubt and consistent with National Foods Ltd v Green, I note that it will 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.
Contrary to the submission of RPH, the relevant question is not whether it is 'reasonably practical for a 'return to work program' to be established'.[94] The relevant question is whether, on the assumption that Ms Dhu successfully completes a 'return to work program' that complies with the Code, will her pre-injury position be available at the time of completion of the program? If 'yes', it is 'reasonably practical' for RPH to provide that position to Ms Dhu. Depending on the evidence, the expected duration of a 'return to work program' may have a bearing on the likelihood of a pre-injury position being available at the time of completion of the program.
[94] Respondent's Supplementary Submissions, 25 May 202, par 9.
Contrary to the submission of Ms Dhu, it is not to be inferred from RPH currently having a large number of employees that it is reasonably practical to provide Ms Dhu with her pre-injury position. The submission overlooks that, before taking up her pre-injury position, Ms Dhu must successfully complete a return to work program so as to acquire any outstanding skills and qualifications necessary to assume that position.
On a remittal an arbitrator enjoys powers, not enjoyed by this court, that are amenable to the efficient disposition of the Reasonably Practical Question.[95] An arbitrator is not bound by rules of evidence (s 188). An arbitrator may reconsider a decision if new information (as defined) becomes available after an arbitrator makes a decision (s 217A). For these reasons, I have decided that it is preferable to remit the case to an arbitrator rather than invite the parties to apply for leave under s 247(6) to adduce additional evidence in the appeal with a view to this court determining the Reasonably Practical Question.
[95] Marks v Coles Supermarkets [122].

I have also considered whether the case should be remitted for re‑determination by an arbitrator other than the Learned Arbitrator. Implicit in the power to remit a case is the power to specify, depending on the facts and circumstances of the case, whether the case should be re-determined by an arbitrator other than the one who made the decision under appeal.[96]
[96] See the considerations referred to in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 [90] ‑ [95] (Tracey and Flick JJ).
If the Learned Arbitrator had expressed a view on facts that will have to be determined on the remittal or had expressed a view on oral or written evidence that may be admitted on the remittal, it would be necessary to remit the case to a different arbitrator because a 'fair‑minded observer might reasonably apprehend that the Learned Arbitrator might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be determined on the rehearing'.[97]
[97] Adapting the 'double might' test that is well known to judicial officers. See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), '6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
The Learned Arbitrator views on facts and evidence are to be found in the Arbitrator's Decision. Those reasons reveal that the Learned Arbitrator has not expressed a view on facts or evidence relevant to the Reasonable Practicality Question other than to say that, as a result of a lack of evidence, the Learned Arbitrator was unable to make a determination.[98] As the case was determined on the papers, the Learned Arbitrator has not expressed a view on any oral evidence. The Arbitrator's Decision contains views on facts and written evidence relevant to the obligation upon RPH under s 155C. Neither party challenges those views or the conclusion of the Learned Arbitrator on the proper interpretation of s 155C. The Learned Arbitrator's reasons for the erroneous conclusion on the interpretation of s 156B[99] do not impinge upon the issues that arise for determination of the Reasonable Practicality Question.
[98] Arbitrator's Decision [95].
[99] Arbitrator's Decision [97] - [151].
No apprehension of impartiality of the Learned Arbitrator reasonably arises with respect to his consideration of the Reasonable Practicality Question. Any evidence received on the hearing of the Reasonable Practicality Question will need to be placed in the context of the history of the case. The findings of fact made by the Learned Arbitrator in the Arbitrator's Decision at [21] - [45] and [49] - [53], based upon the Learned Arbitrator's consideration of hundreds of pages of documents contained in the parties' books of documents filed in the arbitration and not challenged in this appeal, is likely to include history of the case that it is expedient to replicate in determining the Reasonable Practicality Question.

Conclusion

The case will be remitted to the Workers' Compensation Arbitration Service for re-determination in conformity with these reasons. For the purpose of assisting the Registrar in allocating this case,[100] I indicate my view that it is not necessary that the case be allocated to an arbitrator other than the Learned Arbitrator and that, if practical to do so in the administration of the Arbitration Service, it would be preferable that the case be allocated to the Learned Arbitrator. I also decline the invitation of Ms Dhu, in the event of a remittal, to order that the case proceed by way of an oral hearing.[101] It is appropriate that the arbitrator on the remittal and not this court determine the manner in which the case proceeds, having regard to the nature of the evidence, the issues that arise and the relevant provisions of the Act and Rules.
[100] s 182ZP(3)(b).
[101] Appellant's Outline par 31.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SC
Associate to Judge Flynn
21 OCTOBER 2022