Integrated Fuel Services Pty Ltd v Wilkinson - [2015] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: INTEGRATED FUEL SERVICES PTY LTD -v- WILKINSON [2015] WADC 140

CORAM: BIRMINGHAM QC DCJ

HEARD: 24 APRIL 2015

DELIVERED : 27 NOVEMBER 2015

FILE NO/S: APP 10 of 2015

BETWEEN: INTEGRATED FUEL SERVICES PTY LTD
Appellant
AND
RODNEY CRAIG WILKINSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR MENGLER
File No  :A 16083 of 2015

Catchwords:

Workers' Compensation and Injury Management Act 1981 - Appeal against arbitrator's decision to uphold respondent's claim - Whether employee had returned to work within the meaning of s 61 - Whether findings open on the evidence - Whether appeal from arbitrator 'involved' any question of law – No error of law

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Application for leave to appeal refused

Representation:

Counsel:

Appellant: Mr D W Williams
Respondent: Mr A J Stewart

Solicitors:

Appellant: WHL Legal Pty Ltd
Respondent: Chapmans

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

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bednarczyk v Natcorp Investments Ltd (Unreported; WASCA, Library Number
970363; 23 July 1997)
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Department of Education v Kenworthy (1990) 3 WAR 1
Health Department of Western Australia v Prosser [2004] WASCA 83
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Philmac Pty Ltd v Asti (1980) 26 SASR 213
Re Monger; Ex Parte Dutch (2001) 25 WAR 96

BIRMINGHAM QC DCJ:

Background

At all material times the respondent was employed by the applicant as a welder/fabricator. On 30 January 2014 the respondent was injured at work when the extensor tendon to the thumb on his dominant right hand was severed. The respondents claim for workers' compensation payments and medical expenses was accepted by his employer and compensation payments made for a total incapacity for work whilst the tendon was repaired.
In April 2014, following a rehabilitation program, the respondent returned to work. His return to work was subject to a number of restrictions then prescribed in the medical certificate issued by Mr Mark Hanikeri, the plastic surgeon then treating the respondent. On 22 May 2014 the respondent was informed by the applicant that his employment was terminated and he was retrenched due to lack of work.
Payments of workers' compensation were then ceased without notice – his employer claiming that the respondent had returned to work for the purposes of s 5(1) and s 61(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The respondent brought an application to reinstate payments – alleging that the employer had breached s 61(1) of the Act. His application was referred to arbitration before Arbitrator Mengler at Workers' Compensation Arbitration Service.
On 19 January 2015 the learned arbitrator found in favour of the respondent. The arbitrator found that the respondent had not returned to work in the sense required under s 61 of the Act and that accordingly, the respondent was entitled to weekly compensation payments on the basis of total incapacity from 27 May 2014. It was from that decision that the matter comes before this court by way of appeal.

Grounds of Appeal

The applicant challenges the learned arbitrator's determination on the following grounds:
1.The arbitrator erred in law in misconstruing and/or by drawing an inference not supported by any evidence by:
(a)inferring that Mr Mark Hanikeri (plastic surgeon) had only certified the respondent 'fit to try a return to normal duties.' The Arbitrator should have found that based on Mr Hanikeri's opinion, that the respondent was fit to return to his normal duties as from 28 April 2014;
2.The arbitrator erred in law by having regard to irrelevant factors when considering whether the claimant has returned to work for the purposes of s 61(1) of the Act;
(a)The arbitrator had regard to the fact that the respondent was required to demonstrate a capacity to undertake his pre-injury duties despite Mr Hanikeri's certification of the respondent's capacity to do so;
(b)The arbitrator had regard to the return to work plan that had been implemented but subsequently superseded by Mr Hanikeri's certification of the respondent's capacity to undertake his normal duties;
3.The arbitrator erred in law in concluding that the respondent had not 'returned to work' for the purposes of s 61 of the Act where there was no evidence to support that finding of fact.
Section 247 of the Act provides that a party may with the leave, appeal to the District Court against an arbitrator's written decision. This court is not to grant leave unless a question of law is involved and the amount in issue exceeds the threshold in s 247(2)(a). It is accepted that the statutory monetary limit is satisfied. It follows that the critical issue is whether the appeal involves a question of law.
If no question of law can be identified in the appeal there is no jurisdiction for the court to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [54]. Further, a decision does not involve a question of law unless the error is material to the decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The expression 'where a question of law is involved', given full meaning and effect to the use of the word 'involved', allows the court to intervene where there is a mixed question of fact and law: Bednarczyk v Natcorp Investments Ltd (Unreported; WASCA, Library No 970363; 23 July 1997) per Franklyn J, Malcolm CJ and Steytler J agreeing; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 ‑ 356 Mason CJ said:
The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137–8. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at 137–8; Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: FCT v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483;
But it is said that 'there is no error of law simply in making a wrong finding of fact': Waterford v Commonwealth (1987) 163 CLR 54, per Brennan J at 77; 71 ALR 673. Similarly, Menzies J observed in R v District Court; Ex parte White (1966) 116 CLR 644 at 654:
'Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Buss J (Wheeler and Pullin JJA agreeing) said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
[See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 (Glass JA)].
In Re Monger; Ex Parte Dutch (2001) 25 WAR 96 Malcolm CJ stated [11]:
… Where the ultimate fact in issue (the factum probandum) involves a term used in a statute, the question whether the facts found adduced by the evidence and found (facta probanda) establish the ultimate fact is, at least generally, if not always, a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J.
The arbitrator does not make an error of law simply because he or she prefers one version of the evidence or one set of inferences over another version of evidence or set of inferences or because he or she finds a fact wrongly or upon a doubtful basis. So long as there is some basis for an inference, that is to say, the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no error of law.
Further, the refusal of an arbitrator to accept and act upon evidence, even if it is perverse or illogical to do so, is regarded as an error of fact, and not of law: Health Department of Western Australia v Prosser [2004] WASCA 83 [22] ‑ [29].
It follows that in determining whether it is open to intervene in the present case, it is necessary to determine whether, on the evidence, that findings complained of were open and some basis for any inferences drawn established by the evidence.

Statutory Framework

Section 18 of the Act provides:
18.Employers liable to compensate workers for injuries
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
Section 61 of the Act relevantly provides for the continuation of weekly payments:
61. Discontinuing or reducing weekly payments without order
(1)Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).
(2)…
(2a)…
(3)A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
(4)…
(4aa)…
(4a)…
(5)…
(6)…
(7)Subsections (1) and (2) do not apply to a discontinuance of payments —
(a)on payment in full of the prescribed amount; or
(b)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or
(ba)if section 93E(8) or 93P(2)(b) applies to the payment of compensation; or
(c)on suspension of payments in accordance with section 72, or 145D; or
(d)on failure to comply with section 69 by a worker who does not reside in the State.
(8)Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).
Section 5 of the Act defines 'return to work' as follows:
'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; …
Section 84 of the Act provides:
84.Worker not to be prejudiced by resuming work
Where a worker who has been incapacitated by injury resumes or attempts resume work and is unable on account of the injury to work or continue to work, the resumption or attempted resumption of work should not deprive him of any entitlement to compensation under the Act which he has otherwise had.
It was accepted that the respondent did not have any restriction in his capacity to carry out his full duties a welder/fabricator prior to his injury.
Further, there was no suggestion that the respondent had agreed to take a position for which he was qualified and was capable of performing within the context of subsection (b) of the definition of return to work in s 5 of the Act at the time he was retrenched.
In Department of Education v Kenworthy (1990) 3 WAR 1 the Full Court when considering phrase 'return to work' adopted the definition identified in Philmac Pty Ltd v Asti (1980) 26 SASR 213 by King CJ (218 – 219):
Return to work is considered a sufficient reason, as it seems to me, because it involves a re-establishment of the injured worker as a wage earner who is no longer in need of weekly payments of compensation. For return to work to have significance for this purpose it must be, in my opinion, a return as a settled or established member of the wage earning workforce.
A worker continues to have incapacity for work, whether total or partial, for so long as he remains unfit to carry out the full range of his pre-injury duties and hours: Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171.
The learned arbitrator [10] identified that the issue for determination by him was whether at any time during 28 April and 27 May 2014 the respondent had returned to work in the sense required by s 61 of the Act, that is to say, was re-established as a settled member of the wage earning workforce no longer in need of weekly payments of compensation.
The learned arbitrator correctly identified that the question for him was whether the respondent had any injury related work restrictions and the extent of the duties he was performing when his payments were ceased by the applicant.

Findings by Arbitrator

The learned arbitrator accepted the respondent's evidence that during the period after he had returned to work until he was retrenched the respondent was not given work consistent with the return to work plan then in place.
In particular, the respondent was given few jobs that were core tasks to welding or fabricating and generally given tasks such as sweeping and tidying up in the workshop or working in the store and delivering items.
The respondent continued to experience ongoing difficulties with his thumb that impacted upon his capacity to use various power tools. Whilst the respondent was able to complete some limited welding work that he was given to a required standard, he took a considerably longer time to complete any allocated task. A task that might otherwise take two hours would take approximately eight hours.
The critical question for determination by the arbitrator was whether the respondent was certified as fit to return to work on an unrestricted basis.
Relevantly the learned arbitrator found as follows:
32.Whether Stage 3 of Work Focus work duties plan was due to be completed on the original date of the 26^th May 2014, or the amended date of the 12^th May 2014, I find that Mr Wilkinson was not given the opportunity to fully participate in that plan because there was not enough welding/fabricating or associated work to occupy Integrated's workforce, and Mr Wilkinson was not given any priority in respect of what work of that kind there was.
33.I find that he was willing to carry out welding/fabricating work to the best of his ability and was confident that he could achieve the required standard as regards quality, but not as regards quantity. This was because it took him a considerably longer period of time to complete the work than it would if he did not have the ongoing difficulties with his right thumb as he has described them.
34.I find that Mr Wilkinson, during the period up to the 27^th May 2014, held his pre-injury position with Integrated in name only, and that, in my opinion, does not meet the requirements of subparagraph (a) of the definition of the term 'return to work' in s 5 of the Act.
35.I am not satisfied that the statement in the Workfocus 'Closure Report' that Mr Wilkinson progressed over an 8 week period to demonstrate capacity to undertake 8 hours per day, 5 days per week, of unrestricted original duties is correct. I accept Mr Wilkinson's evidence that he was not given the opportunity to demonstrate that capacity and, if he had, would probably not have achieved the expected quantity outcome even if he was actually able to work the full hours.
36.To the extent that Mr Hanikeri relied on the Workfocus 'Closure Report' in concluding on the 30^th July 2014 that Mr Wilkinson then, or on 27 May 2014, had no work restrictions, or had demonstrated none, he was misinformed.
37.When he saw Mr Wilkinson on 30 July 2014, Mr Hanikeri did not identify who gave Mr Wilkinson 'the all clear to return to normal duties', if that means he could actually do them on a full time unrestricted basis, and I infer that certification is really one that Mr Wilkinson was fit to try a return to normal duties. Unfortunately, through no fault of his own, or Integrated's it seems, he was not given the opportunity.[emphasis]
38.I find that at no material time had Mr Wilkinson recovered from his injury sufficient to be able to fully carry out his pre-injury duties as a welder/fabricator and at no time prior to the 27^th May 2014, or up to the time he was reviewed by Mar Hanikeri on the 30^th July 2014, was he re‑established as a settled member of the wage-earning workforce, no longer in need of weekly compensation payments, and nor had he returned to work in the sense required by s 61 of the Act.

Ground 1

1.The arbitrator erred in law in misconstruing and/or by drawing an inference not supported by any evidence by:
(a)inferring that Mr Mark Hanikeri (plastic surgeon) had only certified the respondent 'fit to try a return to normal duties.' The Arbitrator should have found that based on Mr Hanikeri's opinion, that the respondent was fit to return to his normal duties as from 28 April 2014; …

The applicant contends that the learned arbitrator erred by drawing an inference unsupported by evidence when he inferred that Mr Mark Hanikeri, the plastic surgeon, had only certified the respondent as fit to try and return to normal duties [37].
When considering whether an inference is open the whole of the evidence must be considered.
The learned arbitrator referred to the medical evidence before him at [20] ‑ [29] as follows:
20.Mr Wilkinson was seen by Mr Hanikeri, on the 28^th April 2014 and in his report of that date (Exhibit A16), Mr Hanikeri said as follows:
'I saw Rodney again today with his vocational rehab officer. It has been 3 months since he sustained a 100% injury to the EPL tendon of his right thumb. The tendon repair appears strong so there is limited gliding of the tendon, he has 75% range of motion and improving strength. I have given him the all‑clear to return to normal duties commensurate with his return to work program.
I will see him in 3 months time when it may be possible to provide him with a final medical certificate. Failing that, I will review him at the 12 month mark to see if there is any reasonable claim for permanent impairment. (Exhibit A16)'
21.Also on the 28^th April 2014, Mr Hanikeri issued a progress medical certificate certifying Mr Wilkinson fit to return to pre‑disability duties from 29 April 2014, but noted 'requires further treatment from an allied health service, being specialised hand therapy'. A further appointment with Mr Hanikeri was made for the 30^th July 2014. Hand therapy was carried out by Lisa Browne, Occupational Therapist (Exhibit A18).
22.I infer that the work duties plan developed by WorkFocus on 25 March 2014 and amended on 22 April 2014 (Exhibit A17), and signed by Mr Hanikeri on 28 April 014 [sic], was in Mr Hanikeri's possession on that date, and, further, that it was with his knowledge that the hand‑written amendments on that document were made. It shows a 3 stage plan, being:
'Stage 1 – store based duties as listed from the 31^st of March to the 24^th April 2014
Stage 2 – from 28 April 2014 to 9 May 2014 (previously 23 May 2014) – store based duties as per Stage 1 plus workshop based duties (max 2 hours in am and 2 hours in pm) as listed, these included grinding and welding of metal to fabricate, modify or repair pipework, framework and cages for new fuel systems. Mr Wilkinson was to work within the following restrictions:
-    Avoid lifting greater than 20kg
-    Avoid ladders
-    Alternate postures every 30 minutes
-Seek assistance with any tasks outside of medical restrictions
-Avoid repetitive bending
-Avoid overhead arm use
Stage 3 – pre‑injury duties for the period 12 May 2014 (previously 26 May 2014) ongoing. The pre‑injury duties were noted as unrestricted workshop based duties – up to 8 hours per day of grinding and welding activities as outlined above (in stage 2).'
23.Under the heading 'Work Recommendations' on the plan, it is noted that Mr Jason Lord was 'to provide with suitable and meaningful duties within the medical restriction'.
24.WorkFocus Australia issued a 'Closure Report' dated the 5^th June 2014 to CGU Insurance (WA) (Exhibit A13) and from a reading of that report one would conclude that Mr Wilkinson had returned to work as at the 26^th May 2014. Under the heading 'Capacity for Work Demonstrated', WorkFocus Australia said:
'Mr Wilkinson participated in a work duties plan whereby he commenced on 8 hours per day, 5 days per week, undertaking light duties. Mr Wilkinson progressed over an 8 week period to demonstrate capacity to undertake 8 hours per day, 5 days per week, of unrestricted original duties.'
25.Under the heading 'Strategies Implemented', WorkFocus Australia said, in the closure report:
'In order to assist Mr Wilkinson's return to work, the following strategies were implemented:
-Medical case conferences with Mr Wilkinson, Dr Brink and WorkFocus Australia to discuss progress and ongoing return to work requirements.
-WorkSite review at Integrated Fuel Services on 25 March 2014 to identify suitable alternative duties, monitor Mr Wilkinson's progress and provide ongoing injury management advice'
26.On the 6^th June 2014, Dr J Brink, Mr Wilkinson's GP, issued a progress medical certificate (Exhibit A12), wherein it was noted under the date'6/6/14' that Mr Wilkinson had 'intermittent paraesthesia first three fingers. Early CTS'. I understand 'CTS' to mean carpal tunnel syndrome. Dr Brink also recorded 'depressed mood'.
27.Mr Wilkinson was again seen by Dr Brink on the 12^th June 2014 and issued a progress medical certificate (Exhibit A10) wherein it was noted that a report had been received from Cathy Thomas, hand therapist, and that a referral had been made to Dr W Knezevic for EMG/NCS. As regard work fitness, Dr Brink indicated that Mr Wilkinson was 'fit for restricted return to work from 29/4/14' as per specialist (Dr Kanikeri) progress medical certificate date '28/4/14'. He also indicated that Mr Wilkinson required medication – analgesics prn, hand therapy – Cathy Thomas and specialist appointments – Mr Hanikeri and Dr W Knezevic (Neurologist).
28.Mr Wilkinson was seen by Dr Brink again on the 7^th July 2014 when it was noted that 'right CTS symptoms getting worse' and that CGU Insurance had arranged for an assessment by Dr Michael Lucas. The fitness certification was 'fit for restricted return to work from 24/4/14 as per specialist (Dr Hanikeri) progress medical certificate dated 28/4/14' with medical management being analgesics prn hand therapy and referrals to Mr Hanikeri and Dr Knezevic.
29.On the 30^th July 2014, Mr Wilkinson was seen by Mr Hanikeri who issued a report of that date wherein he said:
'This gentleman attended to see me again. It has been six months since he sustained an injury to his right thumb in which the extensor tendon was divided over the dorsal metacarpal. He was given the all clear to return to normal duties, but tells me that he has been laid off since his last appointment with me. I have given him a certificate to say that he can perform normal duties, however as he has not yet regained his full function, I have not given him a final certificate. It will take a further 6-12 months before I can say he has reached maximal medical improvement. I think he needs to have some more hand therapy and push his range of motion himself. There are no work restrictions. I am not sure why WorkFocus have discharged him as it is probably appropriate for them to assist with securing alternative duties.
I have asked Rodney to continue with hand therapy and I will see him in three months time to see if he is improving. If he has returned to normal function by that stage, I will provide him with a final medical certificate. Otherwise I will see him three months later to reassess the situation. It would not be appropriate to perform any surgery in him.
I note also he has had symptoms related to carpal tunnel syndrome and an EMG confirms mild carpal tunnel syndrome in the right wrist. I do not believe this is related to his injury.'
The phrase 'all clear to return' when used by Mr Hanikeri in his reports in relation to the capacity to the respondent to undertake the tasks required of him in the course of his employment must be considered in context with other materials that Mr Hanikeri then had.
In his report dated 18 March 2014 Mr Hanikeri stated:
I saw Rodney again today. It has been 6 weeks since I repaired the extensor tendon to his right thumb and he is progressing nicely. The scars are thick at this stage and he is stiff both on flexion and extension. I have given him the all clear to return to working with his hand, but it will take another 6 to 8 weeks before he gets good movement.[Emphasis]
I have suggested fairly aggressive hand therapy in the meantime. I will continue to monitor his progress and keep you informed, please do not hesitate to contact me if you have any questions.
In his report of 28 April 2014 Dr Hanikeri reported as follows:
I saw Rodney again today with his vocational rehabilitation officer. It has been 3 months since sustained 100% injury to the EPL tendon of his right thumb. The tendon repair appears strong so there is limited gliding of the tendon, he has 75% range of motion and improving strength. I have given him the all clear to return to normal duties commensurate with his return to work programme. I will see him in 3 months when it may be possible to provide him with a final medical certificate. Failing that I will review him at the 12 month mark to see if there is any reasonable claim for permanent impairment. [Emphasis]
The progress medical certificate indicated that the respondent would be fit to return to pre‑disability duties on 29 April but that he required further treatment. Further, the respondents return to work was to be restricted and gradual before full return to normal duties was contemplated. The return to work plan to which Mr Hanikeri referred in his report required the respondent to undertake limited pre-injury duties for the period 29 April – 9 May before undertaking a return to full‑time duties in an unrestricted manner on 12 May 2014. Such return was qualified by the requirement that the respondent be given light duties as recommended in the preceding period to test his capacity such that any difficulty could be noted and a medical certificate obtained if the respondent was unable to upgrade his activities in accordance with the Work Plan.
The certification of the respondent's fitness for full time pre-injury activity by 9 May was premised on the gradual return to work with such work being provided to the respondent by the applicant to that end.
The phrase used by Mr Hanikeri 'all clear to return to work' is qualified - that is to say that a return to work and undertaking his pre‑accident task would not cause him further injury or exacerbation of his injury subject to him attempting tasks within the restrictions and limitations noted.
In his report of 30 July 2014 Mr Hanikeri wrote:
This gentleman attended to see me again. It has been six month since he sustained injury to his right thumb in which the extensor tendon was divided over the dorsal metacarpal. He was given the all clear to return to normal duties, but tells me he has been laid off since his last appointment with me. I have given him a certificate to say that he can perform normal duties, however he has not yet regained his full function, I have not given him a final certificate it will take a further 6 ‑ 12 months before I can say he has reached maximum medical improvement. I think he needs to have some more hand therapy and push his range of motion himself. There are no work restrictions. I am not sure why WorkFocus have discharged him as it is probably appropriate for them to assist with securing alternate duties. [Emphasis]
I have asked Rodney to continue with the hand therapy and I will see him in three months time to see if he is improving. If he has returned to normal function at that stage I will provide him with a final medical certificate. Otherwise I will see him three months later to reassess the situation. It would not be appropriate to perform any surgery on him. [Emphasis]
Having reviewed the evidence before the arbitrator I am satisfied that the inference drawn by the arbitrator was open. The medical evidence, when considered in its entirety, supports the inference drawn by the learned arbitrator, namely that the applicant was 'fit to try to return to normal duties' as opposed to being fit to resume his pre‑accident duties on a full time unrestricted basis.
Further the finding by the learned arbitrator [34] that the respondent had resumed his pre-injury position with the applicant was in name only was supported by the evidence.
The arbitrator's finding was open to him on the evidence and accordingly, no error of law is demonstrated. Ground 1 fails.

Ground 2

2.The arbitrator erred in law by having regard to irrelevant factors when considering whether the claimant has returned to work for the purposes of s 61(1) of the Act;
(a)The arbitrator had regard to the fact that the respondent was required to demonstrate a capacity to undertake his pre-injury duties despite Mr Hanikeri's certification of the respondent's capacity to do so;
(b)The arbitrator had regard to the return to work plan that had been implemented but subsequently superseded by Mr Hanikeri's certification of the respondent's capacity to undertake his normal duties; …

The learned arbitrator found [22] ‑ [23] that Mr Hanikeri had the work plan on 28 April 2014 and that handwritten amendments on that document were made with his knowledge. The duties detailed in the plan called for suitable and meaningful duties within the medical restrictions noted to be provided until 9 May 2014. Further, the respondent was directed to obtain a medical certificate if he was unable to upgrade his activities in accordance with those proposed in the Work Plan.
The certificate issued by Mr Hanikeri on 29 April was premised upon the respondent being provided with restricted work until 9 May 2014 as detailed in the work plan he then had in his possession. At that time Mr Hanikeri foreshadowed that a final certificate would be issued upon the respondent returning to work and proving that he was able to resume his pre-injury duties. It was seemingly anticipated that by 12 May 2014 the respondent would be fit to undertake his pre-injury employment subject to fulfilment of the work plan and the provision of suitable work to the respondent within the scope of the restrictions noted in the interim.
The learned arbitrator found that the respondent's return to work was premised upon him being able to demonstrate a full return after a trial period at a reduced capacity, that is, that he was fit to try and return to normal duties. Such finding was open to the arbitrator on the evidence.
As at the 29 April 2014 no medical evidence supported the conclusion that the respondent was then fit to resume his pre-injury employment in the context of s 61(1) that is to say, re-established as a settled member of the wage earning workforce no longer in need of weekly payments of compensation.
This ground of appeal is premised upon the conclusion that the certificate issued by Mr Hanikeri was unqualified and was conclusive evidence of the fact that the respondent was fit to resume his pre-injury duties on 12 May 2014.
The learned arbitrator found that the certificate was qualified as to the extent to which the respondent could undertake his duties (if given the opportunity to do so) and any restrictions to be observed during the restricted resumption of his employment was relevant.
Consistent with the arbitrators finding that Mr Hanikeri had certified the respondent as being fit to try to resume his pre-injury employment, the extent to which the respondent was in fact able to undertake such duties with reference to the requirements in the work plan was relevant to the question as to whether the respondent had in fact resumed his pre-injury employment.
The question for the arbitrator was whether as at 27 May 2014 the respondent had in fact returned to work in the manner contemplated by s 61 – that is to say, he was re‑established as a settled member of the wage earning workforce no longer in need of weekly payments of compensation.
The arbitrator was not bound by the rules of evidence and entitled to inform himself on any matter as he thinks fit: s 188(2)(a), s 188(3). The arbitrator was entitled to have regard to all of the available material in the determination of that issue.
The determination of that issue was a matter of fact found by the arbitrator that was open on the evidence before him.
It follows that no error of law is demonstrated and this ground must fail.

Ground 3

3.The arbitrator erred in law in concluding that the respondent had not 'returned to work' for the purposes of s 61 of the Act where there was no evidence to support that finding of fact.

This ground is premised upon a finding that Mr Hanikeri had certified that the respondent had ceased to be incapacitated by reason of his injury on 12 May 2014 [par 37 applicant's submissions].
The applicant says that the respondent had returned to his pre-injury position notwithstanding that the applicant was unable to provide the respondent with the duties commensurate with that of a welder/fabricator due to the downturn in work that led to the respondent being retrenched. The applicant contends that the respondent did not occupy a position which was a collation of duties to fit any medical restrictions and that the duties provided were such as the applicant was able to do so due to the downturn in its business.
The evidence accepted by the learned arbitrator and open on the material before him was that the return to work as certified by Dr Hanikeri was qualified.
The question for determination on the evidence was whether the respondent had returned to work as at 27 May 2014 as a settled member of the workforce – that he was able to undertake his tasks in an unrestricted manner.
The learned arbitrator found that the respondent had not been given the opportunity to do so and was in truth simply in the position in name only. The respondent was not then engaged in and capable of performing his pre-injury employment.
The respondent continued to have incapacity for work for so long as he remains unfit to carry out the full range of his pre-injury duties and hours: Arnotts Snack Products Pty Ltd v Yacob.
Such finding of the learned arbitrator (par 38) was open on the evidence and did not give rise to any error by him.
It was further contended by the applicant that the learned arbitrator erred in law in that he applied the wrong test in determining whether the respondent had returned to work for the purposes of s 61. The applicant says that the learned arbitrator adopted a narrow interpretation of the meaning on the term 'return to work' rather than a purposive interpretation of the provisions. The applicant contended that the learned arbitrator failed to consider the second limb of the definition in s 5 when considering whether the respondent had in fact returned to work.
'Return to work' is defined in Section 5 of the Act as follows:
'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;
I am satisfied that in the case before him the learned arbitrator did not take a narrow approach.
The circumstances contemplated in subsection (b) of the definition had no work to do upon the evidence in the case before the arbitrator. There was no evidence that the respondent had accepted or taken a position for which he was qualified and capable of performing at the time that he was retrenched by the applicant and the compensation payments ceased. Indeed, the applicant maintained in the arbitration that the respondent had returned to his pre-injury position and duties without restriction.
The finding [34] that the respondent was employed in name only without the opportunity to undertake work and in truth physically unable to do so due to injury was open on the evidence.
Further, the construction of 'return to work' contended by the applicant for s 61 does not sit with the other provisions of the Act, in particular s 84.

Section 61 is expressed to be subject to s 84. Section 84 provides that a worker who has been incapacitated by injury and attempts to resume work and is unable to continue on account of the injury is not to be deprived of any entitlement to compensation under the Act. It follows that any attempts to return to work in the manner certified by Mr Hanikeri did not operate to extinguish the respondent's right to continued compensation.
The learned arbitrator found that the respondent had attempted to return to work subject to the qualified certificate from Mr Hanikeri but was unable to undertake the tasks by reason of his incapacity. Such finding was open on the evidence.
No error is demonstrated and this ground fails.

Conclusion

As no error of law within the meaning of s 247 has been made out the application for leave to appeal must be refused.