McKinnon v Victorian WorkCover Authority
[2020] VCC 607
•18 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04351
| ALAN ANTHONY McKINNON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 March 2020 | |
DATE OF JUDGMENT: | 18 May 2020 | |
CASE MAY BE CITED AS: | McKinnon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 607 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering conceded – loss of earning capacity – psychiatric injury – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr L B R Allan | Shine Lawyers |
| For the Defendant | Mr J P Gorton QC with Ms B A Myers | IDP Lawyers |
HER HONOUR:
Preliminary
1 In December 2014, there was a strike at the Melbourne wharves, where Mr McKinnon worked for DP World Limited (“the employer”) as a crane driver. Due to personal financial pressures, Mr McKinnon attended work as rostered, during the strike period. Following this, Mr McKinnon said that he received multiple threats from union members over an extended period, and felt isolated and intimidated whilst at work. Mr McKinnon complained that his employer failed to adequately protect him from such harassment. Mr McKinnon claims to have suffered a psychiatric condition as a consequence of this and ultimately ceased work on 24 May 2016. Mr McKinnon has not worked since.
2 Mr McKinnon claims that he suffers serious consequences as a result of this psychiatric condition, both in respect of his pain and suffering and loss of earning capacity. In order for Mr McKinnon to be entitled to claim damages, his psychiatric impairment must satisfy paragraph (c) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”).
3 At the conclusion of the hearing, the defendant formally conceded that Mr McKinnon suffers severe pain and suffering consequences. However, the defendant submitted that Mr McKinnon’s psychiatric condition fails to satisfy the statutory threshold in respect of his loss of earning capacity. It contended that Mr McKinnon has the capacity to work full time as a rubbish truck driver, and the income commensurate with that role is such that he must fail in that aspect of his application.[1]
[1]The defendant had initially contended that Mr McKinnon could also work as a train driver; however, in closing submissions, the defendant conceded that this involves working in a highly unionised workforce and therefore is not suitable for Mr McKinnon
4 Only Mr McKinnon was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material, including an affidavit from Mr McKinnon’s partner, Belinda. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to, and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr McKinnon’s psychiatric impairment is such that he suffers a permanent loss of earning capacity of at least 40 per cent, and he should be granted leave to commence common law proceedings.
Mr McKinnon’s life before suffering his work injury
6 Mr McKinnon was born in June 1978 and is forty-one years of age. He has two children, aged fourteen and twelve, with his partner, Belinda.
7 Mr McKinnon completed secondary school at Bacchus Marsh College and thereafter enrolled in an Accounting, Business, Banking and Finance course at Victoria University. Mr McKinnon deferred his tertiary studies and subsequently, undertook labouring work for several employers. After several years, he recommenced his tertiary studies on a part-time basis. However, Mr McKinnon did not complete this course as he said he was unable to cope with the demands of full-time work and study.
8 In April 2002, Mr McKinnon commenced working for the employer as a labourer. After approximately eight months, Mr McKinnon commenced training to become a straddle driver, and such training occurred over a two-year period. Mr McKinnon later trained to become a crane driver, and was working in that position at the time he suffered the injury the subject of these proceedings.
9 Mr McKinnon described his health as very good, that he was fit and had not previously suffered any psychological issues. In his leisure time, Mr McKinnon said he was a keen snowboarder and went to the mountains ten to fifteen times a season. He also enjoyed going to sporting events with his family, including watching AFL games.
The workplace incident and its claimed consequences
10 Mr McKinnon said that he and five other workers, who also attended for work during the strike period, were given four weeks’ leave. When he returned to work in January 2015, Mr McKinnon said he was bullied and harassed by union members, who objected to those workers who had attended work during the strike period. Mr McKinnon gave examples of this behaviour, which included:
· Breaking into his locker
· Writing “dead man” on the toilet walls
· Pictures depicting his head in a noose hanging from a tree
· Not being picked up from the wharf after the completion of his shift
· Co-workers left the lunchroom upon his entrance
· Graffiti in the bathrooms with terms such as “poison the rats”, “touch one touch all”, “new breed of girls” and “kill the scabs”
· The term “scabs” and ”rats” being written in grease or chalk on equipment around the worksite.
11 Mr McKinnon said that whilst at his work, he would be “thinking about so many things happening” that he found it difficult to concentrate when driving a crane and moving boxes. Mr McKinnon said he did not have the confidence he previously had and was concerned about safety issues arising from his movement of the boxes, as he said that an error could result in death of a worker.
12 Mr McKinnon said that over time, his mental health deteriorated such that by 24 May 2016, he ceased work. Mr McKinnon stated that by that time, he felt overwhelmed, sick, mentally drained, had difficulties concentrating and problems with his sleep. Further, Mr McKinnon said that he felt it was dangerous for him to drive to and from work, as well as to undertake his crane driving duties.
13 Soon after ceasing work, Mr McKinnon attended general practitioner, Dr Mahda Visaeedl, at the My Clinic Bacchus Marsh. However, Mr McKinnon only saw Dr Visaeedl once, as he felt this doctor did not understand the WorkCover process. Mr McKinnon instead decided to consult general practitioner, Dr Carolyn Payne, who was recommended to him by one of his co-workers who had also suffered bullying and harassment for attending work during the strike period.
14 On 6 June 2016, Mr McKinnon attended Dr Payne for the first time. Mr McKinnon said that Dr Payne initially prescribed him Zoloft medication and she then referred him to see a psychologist, Ms Nevenka Brkljaca.
15 On 4 July 2016, Mr McKinnon attended on psychologist, Ms Nevenka Brkljaca. In a report dated 30 October 2016, Ms Brkljaca noted that Mr McKinnon reported depressed mood, decreased motivation, problems focusing and concentrating, and loss of energy. Ms Brkljaca was of the opinion that Mr McKinnon had, at that time, a limited capacity for part-time work, provided it was not at his former workplace, or linked with the union.
16 In February 2017, Ms Brkljaca went on maternity leave. As such, Mr McKinnon consulted psychologist, Ms Kristin Barnes, whom he saw for a few months.
17 In a report dated 14 April 2017, Dr Payne diagnosed Mr McKinnon as suffering an Adjustment Disorder with Depressed and Anxious Mood and was of the opinion that this was directly and solely caused by his employment with the employer. Dr Payne opined that Mr McKinnon had no capacity to return to work and that he would never be able to return to his previous employment, nor to any employment which involves any contact with the CFMEU.
18 On 24 July 2017, Dr Payne referred Mr McKinnon to psychiatrist, Dr Al Wahab. In his first report dated 28 September 2017, Dr Al Wahab noted that Mr McKinnon presented with a three-year history of worsening anxiety and depression. Dr Al Wahab diagnosed Mr McKinnon as suffering Mixed Anxiety and Depression with Post-Traumatic Stress Disorder (“PTSD”) features. Dr Al Wahab did not recommend a change to Mr McKinnon’s medication at this time and recommended ongoing psychotherapy with mainly trauma-focused CBT.
19 In a report dated 2 March 2018, Dr Al Wahab stated that, in his opinion, Mr McKinnon would be able to return to some employment, provided he felt safe and it was not related to the union or close to the employer’s workplace. Dr Al Wahab recommended that Mr McKinnon start with part-time employment and slowly increase his duties.
20 In a report dated 23 August 2018, Dr Payne stated that Mr McKinnon was continuing to suffer from moderately severe symptoms, including feeling tense and anxious most of the time, with poor sleep, negative thoughts and poor concentration. She also noted that Mr McKinnon was hypervigilant when in public.
21 In October 2019, Dr Payne referred Mr McKinnon to psychologist, Ms Kylie Clarke. Mr McKinnon said that he has seen Ms Clarke whenever he was able to get an appointment with her, which has varied from weekly to every few weeks. In a report dated 22 February 2020, Ms Clarke stated that when Mr McKinnon initially attended, he was reluctant and guarded, but after several sessions, rapport and trust were established. Ms Clarke diagnosed Mr McKinnon as suffering a persistent depressive disorder, together with PTSD. She was of the opinion that he had no capacity for work due to his lack of concentration, marked anxious distress and sense of mistrust.
22 In a report dated 6 January 2020, Dr Al Wahab stated that, in his opinion, Mr McKinnon’s prognosis was poor, as he had not responded well to the different psychotherapy and medication which had been tried, and he continued to be distressed and still had fears from the initial trauma. Dr Al Wahab considered that Mr McKinnon was likely to be precluded from working for the foreseeable future due to his psychiatric condition and ongoing symptoms of Depression, lack of motivation, and low energy.
23 Mr McKinnon said that he attends Dr Payne monthly, Dr Al Wahab every four to six weeks, and Ms Clarke every few weeks.
24 In Dr Payne’s most recent report dated 30 January 2020, she confirmed a diagnosis of Mixed Depression and Anxiety with PTSD. Dr Payne noted that Mr McKinnon had made little improvement over the previous eighteen months. Dr Payne was of the opinion that Mr McKinnon had no current capacity for suitable employment and that it would be difficult to predict if, or when, he will ever regain any capacity for suitable employment.
25 In Dr Al Wahab’s most recent report dated 23 March 2020, he stated that, in his opinion, Mr McKinnon had no capacity for work, including that of the suggested job of rubbish truck driver as identified in the defendant’s Vocational Assessment Report. Dr Al Wahab attributed this incapacity to Mr McKinnon’s PTSD and noted that Mr McKinnon needs to avoid jobs which can put him in direct contact with more people, including people from his previous workplace and those part of the union. Dr Al Wahab noted that on a previous occasion, Mr McKinnon had seen someone he knew in Bendigo which caused him to return home immediately and, as a result, felt “very vigilant and very scared”. Dr Al Wahab stated that in an “ideal world”, Mr McKinnon would get a job where he does not have much interaction with other people.
26 In Ms Clarke’s most recent report dated 23 March 2020, she stated that, in her opinion, Mr McKinnon’s psychological condition precluded him from working as a rubbish truck driver. She noted that Mr McKinnon suffers from persistent emotional distress, which includes panic attacks, impaired concentration and short-term memory difficulties. Ms Clarke also noted that Mr McKinnon is often observed to become distracted and detached, and she was concerned that if he experienced this whilst operating a rubbish truck, it would create a significant safety risk to members of the public and himself. Ms Clarke also considered that Mr McKinnon’s sleep difficulties resulting in fatigue, and his experience of hyperarousal with thoughts of reliving the workplace trauma, are further reasons why this job would be unsafe for Mr McKinnon to perform.
27 Mr McKinnon said that he has difficulties driving due to problems with concentration. He said that save for driving short trips to the local basketball stadium, the only other driving he tends to do is when attending his treating practitioners. Although Dr Payne and Dr Al Wahab’s rooms are located approximately an hour’s drive from his home, Mr McKinnon said he was willing to travel that distance as he feels comfortable with his doctors and does not want to have to change practitioners. He said he sometimes has to pull over when driving there due to difficulty concentrating. Mr McKinnon said his partner normally drives when they are going anywhere as a family.
28 Mr McKinnon currently takes Seroquel, 50 milligrams at night, and Sertraline, 200 milligrams daily. Mr McKinnon said he experiences side effects from these medications, including morning drowsiness, a “foggy head”, difficulty thinking and feeling “blank”. He said that he lacks motivation and energy to do much apart from the basics.
29 Mr McKinnon said that his sleep has been affected. He said that he finds it difficult to fall asleep at night; he often gets work-related nightmares and then struggles to get back sleep.
30 Mr McKinnon said he feels worthless and useless.
31 Mr McKinnon said that when he leaves the house he is watchful and worried about running into people from his work.
32 Mr McKinnon coaches his youngest child’s basketball team, which involves three training sessions and two games per week. He said that his doctors and psychologist had encouraged him to do this, and he feels that it helps him “keep up a level of normality” and distracts him from his thoughts. He said he has a team manager to deal with the parents, so he only has to focus on the children in the team. Mr McKinnon said this involvement in his children’s sport, is one of the few things he gets pleasure from in his life.
33 Mr McKinnon has not returned to snowboarding and has not taken his children to the snow as he could “not bring [himself] to”. He also said that he has not been to watch an AFL game for a number of years. Mr McKinnon said that he now has a limited social life and in the last year his only social activity involved going to a couple of basketball games with his partner and her friends.
34 Mr McKinnon said he travelled with his family to Vietnam in 2019, and felt relaxed there, as he was not concerned about running into people from his work, and thus he was less hypervigilant and slept better.
35 Mr McKinnon has not worked since the accident and is currently in receipt of income protection payments. He said such payments are at a lesser rate than his pre-injury income and that he would prefer to be working and earning the money he previously did. Mr McKinnon said the drop in his income has been tough on his family.
36 In cross-examination, Mr McKinnon was challenged at length regarding his reasons for not resuming alternate employment. It was put to him that he was not motivated to do so as he was in receipt of income protection and he was unwilling to work for less than his pre-injury wage level. Mr McKinnon was taken to numerous references contained within several reports of medico-legal doctors and vocational assessors, where it was noted that he had made comments to that effect. Mr McKinnon said he could not recall exactly what he had said to these people but denied stating that he would not work because of a reduced wage. Mr McKinnon was insistent that his reason for not working was “because of my situation, how I feel”. Mr McKinnon denied that he had elected not to work. He said he had followed medical advice that he could not work due to his psychiatric condition. Mr McKinnon also said he knew in himself that he was “not right”.
37 Mr McKinnon said he missed working and always wanted to work. He also said he regretted not being able to provide proper financial support for his family to the level he previously had.
38 Mr McKinnon relied upon an affidavit sworn by his partner, Ms Belinda Dickson, in support of his application. In her affidavit sworn 23 March 2020, Ms Dickson detailed the changes she has observed in her partner since he suffered his work injury. She noted that he is now very quiet and does not say much, whereas “he used to be up for a chat about anything”. Ms Dickson stated they previously enjoyed going out with other young couples for lunch and dinner, and were very involved in the local Bacchus Marsh social scene, in particular the local sports club. She said now he rarely goes with her to such events.
39 Ms Dickson confirmed that Mr McKinnon used to love going to footy games and that he would attend both AFL and local footy games almost every weekend. She said she still goes to these games with their children, but that Mr McKinnon does not go with them.
40 Ms Dickson said that she observes that Mr McKinnon is forgetful and she frequently has to remind him about things. She said despite reminding him about a recent basketball meeting, he still forgot and had to rush to get there at the last minute. She said she no longer trusts him to remember anything important.
41 Ms Dickson described Mr McKinnon’s dedication to their children’s sports, particularly basketball.
Medico-legal evidence
42 The doctors who examined Mr McKinnon, for the purpose of this claim, offered differing psychiatric diagnoses, and had differing opinions as to his work capacity. However, all attributed his psychiatric impairment to the treatment he complained of being subjected to at work, in the eighteen months following the strike action.
43 In August 2016, Mr McKinnon was examined by clinical psychologist, Dr Robert Wilks. Dr Wilks examined Mr McKinnon on two occasions, the first in August 2016 and the second in January 2017. In his first report, dated 12 August 2016, Dr Wilks diagnosed Mr McKinnon as suffering from an Adjustment Disorder with Anxiety which had existed since mid-2015. It was noted that Mr McKinnon’s symptoms included: ongoing tension, poor concentration, irritability, and a fear of matters which reminded him of his employment with the employer. At that time, Dr Wilks was hopeful that Mr McKinnon’s incapacity for meaningful work would be overcome in a six to twelve-month period.
44 In a further report, dated 31 January 2017, Dr Wilks confirmed his previous diagnosis and noted there had been no improvement in Mr McKinnon’s condition since his previous examination. Dr Wilks was of the opinion that Mr McKinnon was incapacitated to do any work associated with his former employer or any work involving association with the relevant union or related organisations. Dr Wilks considered Mr McKinnon had capacity for part-time work of up to 20 hours per week, in light manual or basic administrative work, away from any contact with the relevant unions. I note that Dr Wilks has not examined Mr McKinnon for over three years and therefore consider his medical opinion largely outdated, including his optimism for Mr McKinnon working up to 20 hours per week.
45 In July 2017, Mr McKinnon was examined by psychiatrist, Dr Peter Smith. In his report dated 18 July 2017, Dr Smith diagnosed Mr McKinnon as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted that Mr McKinnon’s symptoms had lasted for over two years and had been “intense, unremitting and associated with global functional disability especially in the area of interpersonal/social contact”. Dr Smith was of the opinion that Mr McKinnon’s prospects of being able to return to his pre‑injury employment with his employer was “virtually zero”.
46 In August 2017, Mr McKinnon was examined by psychiatrist, Dr Richard Prytula. In his report dated 28 August 2017, Dr Prytula diagnosed Mr McKinnon as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted that, at that time, Mr McKinnon reported a reduced appetite, memory and concentration difficulties, disturbed sleep, bad dreams, re-imaging, increased tearfulness with anxious and depressed mood and features of traumatisation. Dr Prytula considered Mr McKinnon had no work capacity at that time and that such incapacity was indefinite. Dr Prytula considered Mr McKinnon’s prognosis as guarded, although there remained a possibility of some improvement with specific targeted treatment of his traumatisation.
47 Mr McKinnon was examined by medico‑legal psychiatrist, Associate Professor Nick Paoletti, on three occasions: in February 2018, February 2019 and January 2020 respectively.
48 In his first report, dated 22 February 2018, Associate Professor Paoletti diagnosed Mr McKinnon as suffering an Unspecified Anxiety Disorder with features of PTSD, social anxiety, phobias and panic attacks, as well as Unspecified Depressive Disorder with features of Major Depression. At that time, Associate Professor Paoletti was of the opinion that Mr McKinnon’s functioning was so poor that any suggestion of him returning to work would be out of the question.
49 In his second report, dated 26 February 2019, Associate Professor Paoletti confirmed that Mr McKinnon was continuing to suffer an Unspecified Anxiety Disorder and Unspecified Depressive Disorder. At that time, Associate Professor Paoletti remained of the opinion that Mr McKinnon was incapacitated to return to his pre‑injury duties indefinitely. Further, given his enduring level of psychiatric symptoms and difficulties with concentration and difficulties in social exposure and trust, Associate Professor Paoletti considered that Mr McKinnon had no capacity for any other meaningful or sustainable employment in the open market.
50 In his final report, dated 28 January 2020, Associate Professor Paoletti again confirmed that Mr McKinnon was suffering an Unspecified Anxiety Disorder and Unspecified Depressive Disorder. Associate Professor Paoletti rejected an alternative diagnosis of an Adjustment Disorder, given the duration and severity of Mr McKinnon’s symptoms. Associate Professor Paoletti considered that Mr McKinnon’s outlook remained static and guarded and/or poor.
51 In respect of Mr McKinnon’s work capacity, Associate Professor Paoletti again confirmed that, in his opinion, Mr McKinnon was incapacitated for work indefinitely due to his psychiatric illness. Associate Professor Paoletti noted that Mr McKinnon described very poor function in his day-to-day life, such that Associate Professor Paoletti considered it out of the question that he would be able to engage in employment. In particular, Associate Professor Paoletti noted that Mr McKinnon could not work in an occupation where he had to “trust bosses” as that would trigger trauma. He also considered any occupation which involved Mr McKinnon working in customer service would be unsuitable because of his irritability and the likelihood of triggers. Associate Professor Paoletti believed that Mr McKinnon’s poor concentration and preoccupations would affect retraining prospects.
52 In April 2018, Mr McKinnon was examined by psychiatrist, Dr Chris Grant. In his report, dated 16 April 2018, Dr Grant diagnosed Mr McKinnon as suffering an Adjustment Disorder with Anxious and Depressed Mood. Dr Grant was of the opinion that Mr McKinnon did not have the capacity for his pre‑injury duties with his employer but did have capacity for alternative or modified duties with a different employer. Dr Grant considered Mr McKinnon fit to engage in occupational rehabilitation services to assist him in identifying suitable employment.
53 Dr Grant noted in his report that Mr McKinnon “… has not been prepared to consider new employment because it would mean a loss of $70,000 ‘compared with what I earned’ on the wharves”. When this was put to Mr McKinnon in cross-examination, he denied that his reason for not working was related to a reduction in income.
54 Further, Dr Grant noted that Mr McKinnon considered his work capacity impaired by his difficulty getting on with or trusting other people, and his lowered concentration.
55 In a supplementary report, dated 22 November 2019, Dr Grant stated that, in his opinion, Mr McKinnon had the capacity to perform the job of a rubbish truck driver.
56 In January 2019, Mr McKinnon was examined by occupational physician, Dr Joseph Slesenger. In his report, dated 1 March 2019, Dr Slesenger offered an opinion as to potential jobs which had been identified as possible occupations for which Mr McKinnon was suited. Such occupations included: labourer, forklift operator, warehouse administrator, product assembler, packer and machine operator. Dr Slesenger was of the opinion that none of those jobs constituted suitable employment for Mr McKinnon, and that he could not perform such jobs on a consistent and reliable basis. In circumstances where Dr Slesenger is a physician, and Mr McKinnon suffers a psychiatric condition, I gained no assistance from this report.
57 In March 2019, Mr McKinnon was examined by psychiatrist, Associate Professor Peter Doherty. In his report, dated 3 April 2019, Associate Professor Doherty accepted that Mr McKinnon suffered an Adjustment Disorder with Depressed and Anxious Mood with features of traumatisation; however, Associate Professor Doherty did not consider that Mr McKinnon met the usual criteria for diagnosis of PTSD.
58 Associate Professor Doherty considered that Mr McKinnon probably had, at that time, a work capacity, and noted this had previously been indicated by Mr McKinnon’s treating psychiatrist in March 2018. Associate Professor Doherty considered that Mr McKinnon was not motivated to return to any work, especially whilst legal proceedings were on foot.
59 In a supplementary report, dated 8 November 2019, Associate Professor Doherty stated that he considered Mr McKinnon had the capacity to work as a rubbish truck driver.
Mr McKinnon’s credibility and reliability
60Mr McKinnon was quiet and reserved whilst giving evidence. He was responsive to the questions asked of him but offered minimal elaboration. This sometimes resulted in the need for Mr Gorton to ask further questions, to enable Mr McKinnon’s evidence to be fully understood. This was most apparent when Mr Gorton cross-examined Mr McKinnon regarding his involvement in his children’s basketball activities, and in respect of the distance he drove to consult medical practitioners. However, in circumstances where Mr McKinnon has an accepted psychiatric condition, with lowered mood and difficulties of trust, I do not consider the manner in which he answered questions in cross-examination to reflect upon his credibility or reliability as a witness.
61I also considered Mr McKinnon’s evidence, in response to the defendant’s allegation that he was unwilling to consider working in lesser paid jobs, as genuine and understandable. Mr McKinnon acknowledged that he has concerns about the impact his reduced income has had upon his family. He asserted, however, the reason for not having worked since ceasing employment with the employer, is because he has not had the capacity to do so, irrespective of the level of remuneration. I considered Mr McKinnon’s evidence on this to be credible.
62Overall, I have no hesitation in accepting Mr McKinnon’s evidence in respect of his claimed consequences and his reason for not having undertaken any re-training or return to paid employment.
Mr McKinnon’s claim for loss of earning capacity as a consequence of his psychiatric condition
63 To succeed in his application, Mr McKinnon bears the onus of satisfying me that, as at the date of hearing, as a consequence of his psychiatric injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to suffer a loss of earning capacity which produces a financial loss of 40 per cent or more.
64 In undertaking this task, I must compare what Mr McKinnon is capable of earning in suitable employment, with his “without injury” earning capacity. To determine his “without injury” earning capacity, I must decide which of the following scenarios most fairly reflects Mr McKinnon’s earning capacity had he not suffered the injury:
(a) the gross income that Mr McKinnon earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income that Mr McKinnon would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[2]
[2] Section 325(2)(f) of the WIRC Act
65 The agreed date of injury was 24 May 2016. Therefore, in assessing his claim, it is permissible for me to consider what Mr McKinnon was capable of earning from personal exertion up to 24 May 2019.
66 In the financial year ended 30 June 2013, Mr McKinnon earned $108,524. This remuneration was based upon his categorisation as a ‘Crane Driver New Foreman Equipment Controller Class 2’, pursuant to the DP World Melbourne Enterprise Agreement. A further Enterprise Agreement was reached between his employer and the union in 2016. In that further Agreement, it was provided that, if not for his injury, Mr McKinnon’s base salary, from 1 March 2018, would have been $117,488 gross. That increased pay rate applied until February 2019, at which time the Enterprise Agreement expired.
67 Mr McKinnon claimed that as the union and his employer are still negotiating the rates for payment of workers from February 2019 and beyond, it is presently uncertain what remuneration he would have been entitled to as at 24 May 2019. Mr McKinnon claimed that an increase of 2.6 per cent had previously been applied to each twelve-month period in the previous Enterprise Agreement, and that I should infer a similar increase will be provided for in the new Agreement. If I was to accept that submission, Mr McKinnon’s “without injury” earning capacity figure would be $120,542 gross per annum (that is 2.6 per cent of $117,488).
68 However, the defendant submitted that it was speculative as to what, if any, increased pay rate would be agreed to under a new Enterprise Agreement. It submitted that Mr McKinnon’s “without injury” earning capacity figure should therefore be $117,488.
69 In response to this, in closing submissions, Ms Hartley sought the opportunity to re-open Mr McKinnon’s case to enable further evidence to be tendered in support of his claim that the relevant “without injury” earning figure should be $120,542. My preliminary view was that there was unlikely to be any satisfactory evidence on this matter whilst negotiations between the employer and the union were ongoing. However, even if such documents existed and were probative, I considered these should have been sought well prior to trial. I observed that if considered essential to Mr McKinnon’s claim, the case should not have proceeded until they were available.
70 It was agreed that Mr McKinnon’s reliance on the marginally higher figure of $120,542 gross per annum, would only be required if I was satisfied that he could work as a rubbish truck driver, on a full-time basis. For all the subsequent proposed suitable employment positions, even on a full-time basis, Mr McKinnon would still suffer the requisite 40 per cent loss. Therefore, to save unnecessary time in hearing submissions on whether Mr McKinnon be permitted to re-open his case, I reserved hearing from the parties on this, until such time as it became necessary. For the reasons that follow, it is a moot point.
71 A “without injury” earning annual gross wage of $117,488, equates to a weekly wage of $2,259. To succeed in this application, Mr McKinnon must satisfy me that he has suffered a permanent loss of at least 40 per cent, such that he is incapable of earning more than $1,355 per week.
72 Dr Payne, Dr Al Wahab and Ms Clarke are Mr McKinnon’s treating practitioners, from whom he obtains regular treatment. These medical practitioners are each of the opinion that Mr McKinnon has no capacity for work. Although in March 2018, Dr Al Wahab had expressed some optimism for Mr McKinnon, he has subsequently stated that he considers Mr McKinnon has an indefinite incapacity for work. I also note Dr Al Wahab and Ms Clarke expressly stated that they consider the proposed job of rubbish truck driver as unsuitable for Mr McKinnon. As treating practitioners, actively involved in Mr McKinnon’s care, I give considerable weight to these opinions.
73 Associate Professor Paoletti has reviewed Mr McKinnon on several occasions, the last being in early 2020. Over this time, Associate Professor Paoletti considered there had been no improvement in Mr McKinnon’s condition and that he had no capacity for suitable employment.
74 Only Associate Professor Doherty and Dr Grant were of the opinion that Mr McKinnon has the capacity to resume work, and that the job of rubbish truck driver is suitable employment for him. However, I note that Dr Grant had not reviewed Mr McKinnon for some eighteen months when he gave this further opinion, and so I give it little weight. Associate Professor’s Doherty’s opinion is based on only one examination of Mr McKinnon. I also note that it is against the weight of the other medical opinions, and, in particular, that of the treating practitioners. It also does not accord with my acceptance of Mr McKinnon’s ongoing incapacity for work. Further, I do not accept Associate Doherty’s assessment of Mr McKinnon that he is unmotivated to return to work whilst his legal proceedings are on foot.
75 I am satisfied that as a consequence of his psychiatric condition, the job of rubbish truck driver is unsuitable for Mr McKinnon. I consider his problems with concentration, hypervigilance and poor sleep, would create a safety risk for him and members of the public. Mr McKinnon’s ability to drive for a couple of hours to medical appointments once or twice a month, is insufficient to persuade me that he has a capacity to work as a rubbish truck driver on a full-time basis.
76 In considering all the evidence, I am satisfied it is unlikely that Mr McKinnon will be able to obtain any suitable employment at the current time, or into the indefinite future. Despite regular psychological and psychiatric treatment for almost four years, there has been no substantive improvement in Mr McKinnon’s condition. I am therefore satisfied that his condition and incapacity for suitable employment is permanent.
77 In view of the above, I am satisfied that Mr McKinnon suffers the requisite 40 per cent loss of earning capacity.
78 Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr McKinnon meet the “very considerable test”. Given my acceptance that Mr McKinnon’s psychiatric injury prevents him undertaking suitable employment, the pecuniary disadvantage to him is so great I consider his loss of earning capacity can be described as “very considerable”.
79 I therefore grant Mr McKinnon leave to commence common law proceedings.
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