Beklenoglu v Sunrise Cleaning Services Pty Ltd
[2023] VSC 650
•10 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01212
| SEDEF BEKLENOGLU | Appellant |
| v | |
| SUNRISE CLEANING SERVICES PTY LTD | Respondent |
---
JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 and 3 October 2023 |
DATE OF JUDGMENT: | 10 November 2023 |
CASE MAY BE CITED AS: | Beklenoglu v Sunrise Cleaning Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 650 |
---
APPEAL – Appeal from Magistrates' Court of Victoria against finding of no compensable injury – Whether Magistrate failed to consider the extended definition of ‘injury’ – Whether Magistrate was obliged to accept certain evidence that was not contradicted – Whether Magistrate denied the applicant procedural fairness – Whether Magistrate gave adequate reasons for decision – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Duffy v Salvation Army (Victoria) Property Trust [2013] VSCA 253.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Hangay and Ms O Callahan | Zaparas Lawyers |
| For the Respondent | Ms F A L Ryan SC and Mr R Kumar | Hall & Wilcox |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. The Magistrates’ Reasons........................................................................................................... 2
C. Did the Magistrate fail to consider the extended definition of injury?............................ 6
D. The challenge to the factual findings made........................................................................... 9
D.1The claim for injury in the fall............................................................................................. 9
D.2The claim for injury in the course of employment......................................................... 11
E. The grounds based on procedural fairness........................................................................... 16
E.1Dr Chehata and Dr Awad.................................................................................................. 16
E.2The finding of collusion...................................................................................................... 18
F. The clinical notes........................................................................................................................ 19
G. The grounds based on reasons................................................................................................ 21
H. Final observations and disposition........................................................................................ 22
HIS HONOUR:
A. Introduction
Ms Sedef Beklenoglu, the appellant, worked as a cleaner at construction sites for Sunrise Cleaning Services Pty Ltd, the respondent, between 2010 and 13 April 2017. She contended that work she undertook whilst employed as a cleaner resulted in injuries to her knees, hips, upper body including shoulders, back, neck, and a consequential psychological condition. She brought two claims for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013. The first was for injury alleged to have occurred ‘in the course of her employment’, and the second was for injury alleged to have been sustained in a fall at work in 2014. Both claims were denied, and Ms Beklenoglu commenced proceedings for compensation in the Magistrates’ Court of Victoria. Although Ms Beklenoglu complained of widespread disabling pains in her body that she associated with her work duties and the 2014 fall, her case was complicated by the fact that:
(a) She was able to work full time on full duties until April 2017, at which time she ceased work as a result of cardio-vascular issues that were unrelated to her employment. She then received payments under an insurance scheme for non-work injuries that were higher than her earnings had been. She did not claim benefits under the Workplace Injury Rehabilitation and Compensation Act 2013 until 30 July 2018 after those payments had stopped. Ms Beklenoglu contended, among other things, that her work-related problems had deteriorated significantly after she ceased employment for the cardio-vascular condition; and
(b) The claim form that she completed on 30 July 2018 did not refer to the 2014 fall. A claim form that referred to a fall was not completed until 30 July 2021. Her general practitioner between 2012 and 2018, Dr Kahraman, did not have any record of her complaining of the 2014 fall.
After a hearing in which oral evidence was given by Ms Beklenoglu, her daughter and Dr Kahraman, and various medical reports and clinical records were tendered, the Magistrate dismissed Ms Beklenoglu’s application. His Honour was not satisfied that Ms Beklenoglu had suffered the fall at work on which she relied and concluded that Ms Beklenoglu suffered from ‘constitutional, progressive’ and ‘age-related degenerative conditions’ that were ‘unrelated to the nature of her work or duties’, that ‘any exacerbation of symptomatic flare-ups’ due to work duties were ‘limited to discomfort while actually doing those duties, but not after’, and that ‘the progressive nature of her degenerative disease to the claimed body parts was more likely due to age-related degeneration’.
Ms Beklenoglu has appealed to this Court against the orders made in the Magistrates’ Court. The appeal is limited to an appeal on a question of law.[1] Ms Beklenoglu’s arguments in this Court may be broken conceptually into four areas. The first is that, even accepting the factual findings made, the Magistrate failed to consider or indeed to conclude that Ms Beklenoglu had suffered work-related aggravations or exacerbations, even if only temporary in nature. The second involves challenges to the factual findings made. The third contends that Ms Beklenoglu was denied procedural fairness. The fourth is that the reasons are inadequate.
[1]Magistrates Court Act 1989 (Vic) s 109.
Although I will consider the adequacy of the reasons last, it is convenient to refer to them in some detail first.
B. The Magistrates’ Reasons
His Honour reserved, and then gave reasons orally. The transcript of his Honour’s reasons is 48 pages. The reasons show that his Honour, in the following order:
(a) Summarised the case that Ms Beklenoglu was making and the defence to it, in particular, that Sunrise Cleaning Services Pty Ltd denied any fall or ‘work causation’;
(b) Summarised the evidence that was led both orally and by the tender of reports from doctors. When summarising Ms Beklenoglu’s evidence, his Honour expressed a view that Ms Beklenoglu was giving ‘exaggerated evidence’ as to her present state and had a ‘pained groaning-type expression of her face’ as she demonstrated her lack of movement;
(c) Summarised the material that was tendered that related to Ms Beklenoglu’s claim for benefits following her ceasing work for incapacity for conditions that were not work-related and the payments she received;
(d) Summarised the submissions made by counsel for both sides, including Ms Beklenoglu’s counsel’s submission that she was a witness of truth, and Sunshine Cleaning Services Pty Ltd’s counsel’s submission that she was not a witness of truth and that she prevaricated, exaggerated and made up answers in her evidence;
(e) Observed that Ms Beklenoglu’s credit was ‘very much in issue’, and that, to succeed, she had to persuade him that her evidence about her injury and the histories she gave to the medical witnesses on whom she relied were reliable;[2]
[2]Citing Johns v Oaktech Pty Ltd [2020] VSCA 10, [76].
(f) Expressed findings including the following:
(i) Ms Beklenoglu was not an impressive witness, was evasive in her answers and ‘downplayed’ evidence where it was contrary to her case and overemphasised evidence that assisted her case. His Honour concluded that she had exaggerated the heavy nature of her duties, the onset of her symptoms soon after ceasing work and the medication that she had taken. His Honour also rejected her daughter’s evidence that Ms Beklenoglu’s health deteriorated ‘from the time that she started work’ at Sunrise Cleaning Services Pty Ltd;
(ii) Ms Beklenoglu’s work was ‘heavy at times’, and in that sense, by clear implication, capable of causing injury of the type she alleged;
(iii) The surveillance film that was shown was ‘unremarkable’ save that it showed a range of motion in her shoulder that was inconsistent with her evidence and inconsistent with her presentation to some doctors who had examined her shoulder;
(iv) The ‘important treating medical witness’ in the case was ‘her longstanding GP, Dr Kahraman’, who gave honest, reasonable and measured evidence. Ms Beklenoglu had complained to him of work involvement in her condition on four occasions over the years, and those complaints were ‘very brief and transitory at best having regard to the large number of times he had seen her from the start in 2012’. Ms Beklenoglu did not tell him about the fall in 2014, or any other work involvement that affected her knee condition, despite attending on him for her knee on about seven occasions that year;
(v) Although Dr Baglar and Dr Karlov provided supportive opinions, their records were ‘very limited’ and their reports were ‘simplistic and were really limited to their opinions’. Further, Dr Baglar’s opinion that Ms Beklenoglu’s incapacity was solely due to her employment was ‘difficult to accept’ because of the ‘longstanding symptomatic degeneration to her body before that time’, and Dr Karlov’s report reads ‘more like an independent medico-legal report’ than a treating doctor’s report as it was ‘very limited in detail’. He could not accept Dr Karlov’s report which was ‘insufficiently supported by his subpoenaed notes or other details of this treatment’;
(vi) Ms Beklenoglu’s other treating surgeons ‘do not implicate any work involvement in the medical conditions for which they were treating her’;
(vii) He had ‘difficulty accepting’ the opinions of the medico-legal specialists, Dr Chehata and Dr Awad as ‘valid and reasonable’ because they based their later reports, to a large extent, on the contents of an affidavit with which he had not been provided. Another medico-legal specialist, Dr Rowe’s opinion made ‘very little reference to any musculo-skeletal injuries and treatment’ prior to Ms Beklenoglu ceasing work;
(viii) He preferred the evidence of Dr Kenna in his three reports as to the ‘very limited and very temporary symptomatic relationship between her working duties and pre-existing musculo-skeletal degeneration’. His Honour did not accept that employment was a significant contributing factor to Ms Beklenoglu’s claimed injuries. Having regard to the fact that Ms Beklenoglu worked full time performing duties that had heavy aspects to them full time with overtime up to seven days a week until being forced to cease work ‘because of non-work-related cardio-vascular condition’, the probability was that she developed ‘constitutional, progressive and age-related degenerative conditions over time in relation to her claimed injuries’. Accepting the opinions of Dr Arora and Dr Kenna, her degeneration was constitutional and progressive with age, with any exacerbations or flare-ups due to work being limited to discomfort while performing those duties but not after;
(ix)In that context, Ms Beklenoglu had ‘decided to retire’ after she ceased work after her cardio-vascular episode and began receiving higher benefits than had received when she was working; and
(x) The fall, on the balance of probabilities, did not occur in the manner described. It was not reported contemporaneously, Ms Beklenoglu had previously been vague in relation to it, and the detailed evidence now given was ‘difficult to accept’. This was the case even having regard to Sunshine Cleaning Services Pty Ltd’s failure to call evidence on the point. Even if there had been a fall, it would not have been a significant contributing factor to the knee injury, ‘except maybe for some very temporary and transient discomfort at the time of the alleged fall’.
Accordingly, his Honour dismissed the claim.
C. Did the Magistrate fail to consider the extended definition of injury?
The concept of a compensable injury includes ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.[3] That type of injury is often referred to as an injury ‘in the extended sense’. Where a worker has an underlying, non-work related degenerative condition, it is often necessary to consider whether employment has caused an aggravation, acceleration, exacerbation or deterioration of that condition.[4] If it has, then the worker has suffered an ‘injury’ for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013. Under s 40(3)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013, a worker is not entitled to compensation for such an injury unless employment was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of that condition.
[3]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 3.
[4]Putting ‘recurrence’ to one side.
Ms Beklenoglu contended that the Magistrate had erred by failing to ask himself whether her employment had contributed to an aggravation, acceleration, exacerbation or deterioration of her underlying condition.
I do not accept that his Honour failed to do so. I am satisfied that his Honour did ask himself whether Ms Beklenoglu had suffered an injury in the extended sense for the following reasons:
(a) First, his Honour stated that he was ‘unable to accept’ that Ms Beklenoglu’s employment ‘was a significant contributing factor to her musculoskeletal injuries as described in the amended statement of claim’ and that in that regard he had ‘considered the various factors set out in cl 25 of Schedule 1 of the Act.’ Clause 25 of sch 1 of the Workplace Injury Rehabilitation and Compensation Act 2013 sets out the matters to be taken into account in determining whether a worker’s employment was a significant contributing factor to an injury. As noted above, the ‘significant contributing factor’ test only applies to an injury under the extended definition. His Honour’s use of this language is consistent only with his having considered the extended definition of injury.
(b) Second, his Honour made a specific finding that Ms Beklenoglu had ‘constitutional, progressive and age-related degenerative conditions’ that were ‘unrelated to the nature of her work or duties.’ However, his Honour did not stop the analysis at that point. His Honour then stated that ‘any exacerbation or symptomatic flare-ups because of the work was limited to discomfort while actually doing those duties, but not after’, and that ‘the progressive nature of her degenerative disease to the claimed body parts was more likely due to age-related degeneration’.
The fact that his Honour made these findings compels a conclusion that his Honour considered, as he was required to consider, whether Ms Beklenoglu’s work duties caused an ‘aggravation, acceleration, exacerbation or deterioration’ of her ‘constitutional, progressive and age-related degenerative conditions’, and concluded that it did not. His Honour concluded that her employment had no ongoing effect on her symptoms. It cannot be said, therefore, that his Honour failed to consider the extended definition of ‘injury’.
Ms Beklenoglu also put, however, a subtler argument. Although his Honour found that Ms Beklenoglu did not suffer from any ongoing consequences of her employment, his Honour also stated:
I accept the opinions of Dr Arora and Dr Kenna that her degeneration was constitutional and progressive with age. Any exacerbation or symptomatic flare-ups because of the work was limited to discomfort while actually doing those duties, but not after.[5]
[5]Italics added.
A temporary flare-up in symptoms can amount to a compensable injury, because a flare-up in symptoms can be, at least, an ‘exacerbation’ of an underlying condition.[6] A temporary flare-up might require medical treatment or result in an incapacity for work, and might thereby attract an entitlement to compensation even though it has not resulted in any permanent change. In this context, I accept Ms Beklenoglu’s argument that the learned Magistrate failed to consider whether Ms Beklenoglu had suffered, in the past while at work, a compensable injury of that type and if so whether it attracted an entitlement to compensation. Indeed, his Honour appears to have accepted that she probably did suffer, while at work, a temporary exacerbation-type injury.
[6]See, eg, Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378 (Evatt and Sheppard JJ) - ‘pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place’; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 - where a flare up in a worker’s dermatitis was accepted to be an ‘injury’.
However, I do not consider that it was an error of law for his Honour not to have made explicit findings on this issue having regard to the way this case was run before him. The substantive relief that Ms Beklenoglu sought was weekly payments and medical and like expenses from 30 July 2018 and continuing.[7] A finding that Ms Beklenoglu had suffered an injury while at work in the form of a temporary exacerbation of her underlying condition could not result in her obtaining any benefits in the form of weekly payments because she did not take any time off work (or lose any wages) until she ceased work on 13 April 2017 due to her cardiac condition, let alone any benefits in the form of weekly payments from 30 July 2018. Equally, the prospect that a temporary exacerbation of symptoms suffered prior to her ceasing work on 13 April 2017 could result in a need for medical or like treatment after 30 July 2018 is remote. A finding that Ms Beklenoglu had suffered an injury while at work in the form of a temporary exacerbation of her underlying condition could, conceivably, result in Ms Beklenoglu having an entitlement to some medical or like expenses if the exacerbation resulted in her obtaining some medical attention at the time, but that was not the way the case was put. Parties are not ordinarily entitled to complain that a Magistrate erred by failing to consider an argument that was not put,[8] and Ms Beklenoglu did not contend that she had suffered a temporary exacerbation injury or, if she had, ask the Court to find that it had resulted in a need for medical or like treatment.
[7]This was the relief sought in paras A and B of the prayer for relief in her amended statement of claim.
[8]See, eg: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar J): Coulton v Holcombe (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Water Board v Moustakas (1988) 180 CLR 491, 497-498 (Mason CJ, Wilson, Brennan and Dawson JJ); Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51]-[52] (Gleeson CJ, McHugh and Gummow JJ).
That is not a criticism of the way Ms Beklenoglu’s case was presented, because there would be little benefit for her in having a finding of what would likely be an inconsequential injury, and there may well have been good forensic reasons for presenting the case the way it was presented.
For the above reasons, the grounds of appeal based on the assertion that the Magistrate erred by failing to consider the extended definition of ‘injury’ fail.
D. The challenge to the factual findings made.
Recognising the difficulty in appealing against findings of fact in an appeal limited to a question of law, Ms Beklenoglu contended that it was ‘not reasonably open’ to the Magistrate to find that she had not sustained an injury arising out of or in the course of the performance of her work duties. She contended, in summary, that:
(a) the evidence that her work generally was heavy and repetitive was not disputed or contradicted;
(b) the Magistrate ‘failed properly to consider’, or had no proper reason to reject, the medical evidence in her favour;
(c) there was no proper basis to reject the evidence given by her and her daughter, which was not contradicted, about the fall; and
(d) the Magistrate failed to have regard to, or had no proper reason to reject, the medical evidence in her favour that she suffered injury in that fall.
D.1 The claim for injury in the fall
It is true that there was no evidence that directly contradicted Ms Beklenoglu’s evidence that she had had a fall at work or her daughter’s evidence that she saw her mother that day with a swollen knee. Further, Ms Beklenoglu said that she reported the fall to a manager at Sunshine Cleaning Services Pty Ltd, and that that person was not called to give evidence. That said, there were circumstances that cast doubt on whether there ever had been a fall, or at least a fall of the significance alleged. There were no contemporaneous records of the fall, and, as noted above, although Ms Beklenoglu referred to the 2014 fall in her 30 July 2021 claim form, she did not refer to it in her 30 July 2018 claim form. When asked why not, she said that she did not want to ‘make a mess’ for her employer, and also that she did not even think about formally reporting the fall, and then that she did not know why she did not put it in her earlier claim form. Most significantly, however, her general practitioner, Dr Kahraman, said that he had no recollection of her mentioning any 2014 fall to him, and he did not have any record of Ms Beklenoglu complaining to him of having injured herself in a fall at work other than a note taken in June 2014 indicating that she had fallen and hurt her knees ten years earlier and that there had then been ‘no recent trauma or injuries’. The general practitioner, Dr Baglar, who took over the treatment of her ‘work injuries’ from June 2018, appeared not to have any record of complaints of a fall in his notes and did not refer to any fall in his August 2018 or October 2020 reports.
Ms Beklenoglu contended, relying on para 46 in Duffy v Salvation Army (Victoria) Property Trust[9] that ‘a judge is obliged to accept uncontradicted evidence providing it is reasonable and inherently probable’. I do not accept that this principle applies in this case. First, the evidence that there had been a fall of significance was not ‘inherently probable’ in light of the lack of any contemporary record of its having occurred and the existence of medical notes and other circumstances that suggested that it might not have occurred. Second, that observation in Duffy v Salvation Army (Victoria) Property Trust was made in an appeal that was in the nature of a rehearing under s 74 of the County Court Act 1958. In that form of appeal, the appellate Court is required to conduct a real review of the evidence and if it considers that the decision of the trial judge was wrong, having due regard to any advantages the trial judge had, is required to substitute its own view of the facts in order to give the judgment which in its opinion ought to have been given in the first instance.[10] That is not the position with this appeal which is limited to an appeal on a question of law. Finally, that proposition has been qualified by the observation that if a Magistrate were to reject evidence which was uncontradicted and inherently probable, then it may be done so if there are ‘relevant reasons’ that are disclosed.[11] His Honour here provided the reasons for which he rejected that evidence.
[9][2013] VSCA 253.
[10]See, eg, Fox v Percy (2003) 214 CLR 118, 125-126 [23] (Gleeson CJ, Gummow and Kirby JJ), quoting from Dearman v Dearman (1908) 7 CLR 549, 561.
[11]Gunawardana v GMS Environmental Services Pty Ltd [2023] VSC 281, [90] (Kaye JA), citing Read v Nerey Nominees Pty Ltd [1979] VR 47.
It fell to the learned Magistrate to decide whether or not to accept the evidence of Ms Beklenoglu. Ms Beklenoglu’s reliability was challenged, and, as noted above, the Magistrate concluded that she was ‘evasive in her answers’ and was ‘not an impressive witness’. The reliability of Ms Beklenoglu’s daughter’s evidence was also challenged, and the Magistrate expressly rejected her evidence that her mother’s health deteriorated from the time that she started work at Sunrise Cleaning Services Pty Ltd. In my view, it was open to his Honour to have rejected Ms Beklenoglu’s and her daughter’s evidence as to the fall. Or, more precisely in terms of this appeal, it was not an error of law for his Honour to have rejected their evidence.
Having rejected her evidence of the fall, it follows that there was no error in rejecting the argument that Ms Beklenoglu suffered injury in the fall.
D.2 The claim for injury in the course of employment.
Again, as noted above, it is not my role to examine all the evidence and decide whether or not I consider that the view the learned Magistrate took of the evidence before him was the ‘correct’ view. Rather, it is my role to decide whether there was an error of law. Ms Beklenoglu asserted in her grounds of appeal that his Honour was required to find compensable injury having regard to the evidence that her work duties were heavy and repetitive, and that the Magistrate had rejected the medical evidence relied on her ‘without proper basis’.
There was, in this case, medical evidence that, if accepted, would have resulted in success for Ms Beklenoglu. But there was also medical evidence that, if accepted, would have denied her that success. Reports were tendered, but none of the specialists gave oral evidence. The Magistrate had to decide what evidence to accept, doing the best he could in those circumstances. In this case, the Magistrate was entitled to conclude, as he did, that Ms Beklenoglu had an underlying degenerative and progressive medical condition that had progressed over time but which was not, at least now, contributed to by her employment duties. Dr Kenna, a consultant in musculoskeletal pain management, examined and reported on Ms Beklenoglu on three occasions. His reports were tendered without his being cross-examined. Dr Kenna’s opinion was that Ms Beklenoglu had a progressive ‘underlying medical condition of generalised osteoarthritis’, that ‘employment has not been a significant contributing factor to her current clinical presentation’, that ‘there is not a significant work-related component’, that ‘work-related factors have not been aggravating’ that condition, and that ‘any initial work-related factors have ceased and her current symptoms relate to the underlying progressive degenerative disease’.
Dr Kenna’s final opinion addressed also the fall:
I was of the view that employment is no longer materially contributory factor to the current symptoms in relation to neck, knees, back, shoulders and hips but would consider in retrospect, in view of the fall in 2014, the specific traumatic incident, that the right knee and right shoulder would continue to have a work-related component in view of those specific injuries incurred in the fall …. I realise this may be in dispute, as the fall wasn’t recorded at the time …
The late suggestion in Dr Kenna’s reports that the fall was productive of ongoing consequences did not assist Ms Beklenoglu because the learned Magistrate did not accept that the fall had occurred.
Dr Kenna’s opinion was also supported, in a broad sense, by the found fact that Ms Beklenoglu worked unrestricted in her full duties until she stopped due to an unrelated cardio-vascular condition, and that she claimed an ongoing incapacity for her old work duties because of what she described as a subsequent deterioration of her other conditions after she had ceased work.
In these circumstances, it could not be said that the Magistrate erred in law by preferring the opinion of Dr Kenna to the opinions of the doctors relied by on Ms Beklenoglu.
Ms Beklenoglu submitted that the learned Magistrate erred by failing to consider ‘all the evidence in the case’ seen as a body and, in particular, the histories given by Ms Beklenoglu to different doctors. It is true that the Court is required to have regard to the evidence considered as a whole[12], but I am not satisfied that the learned Magistrate failed to do so. His Honour summarised the evidence and submissions that were made. It is not feasible to repeat every item of evidence in reasons for judgment, and a failure to set out a particular item of evidence does not of itself justify a conclusion that it was not considered. I am not persuaded that the Magistrate failed to have regard to all the evidence. Additionally, I note that in my view there was little significance in the fact that Ms Beklenoglu repeatedly gave a history to doctors, years after the event, that she suffered injury in the fall in circumstances where she appears not to have given that history to a doctor at the time of the fall and his Honour did not accept her evidence when it was given before him.
[12]See, eg: Allismanti Pty Ltd v Ernikiolis [2007] VSCA 17, [49]-[50]; Attanayake v Simplot Australia Pty Ltd [2019] VSC 387, [52] (Richards J).
There was one piece of evidence that Ms Beklenoglu emphasised in this appeal. This was an ‘illness claim form’ dated 14 May 2018 that Ms Beklenoglu completed but which included some comments by Dr Kahraman. In that form, when asked ‘what caused the patient’s illness’, Dr Kahraman stated ‘uncertain – possibly exacerbated by labour-intensive work tasks’. Later on the same page, when asked whether the patient’s work activities had caused or significantly contributed to, or aggravated, exacerbated or deteriorated a pre-existing condition causing the patient’s current incapacity’, Dr Kahraman ticked the box marked ‘yes’ and wrote ‘labour intensive work likely to aggravate musculo-skeletal conditions’. The report that Dr Kahraman wrote dated 10 May 2018 did not suggest that there was any work contribution to her condition, but instead said that Ms Beklenoglu suffered from ‘multiple psycho-social medical issues’ including arthritis, a meniscus tear, a shoulder condition, hip and knee pain, fibromyalgia, carpal tunnel syndrome, migraine, depression, obesity, hypertension and diabetes (this list is not complete). When Dr Kahraman gave oral evidence, he adopted an earlier medical certificate and his 10 May 2018 report, but was not taken by Ms Beklenoglu’s counsel to the 14 May 2018 claim form. He did not give oral evidence to the effect that Ms Beklenoglu’s conditions, for which he treated her, arose out of or in the course of her employment. Sunshine Cleaning Services Pty Ltd took Dr Kahraman to the 14 May 2018 claim form in cross-examination and Dr Kahraman accepted that his opinion, when he filled it in, was that he was uncertain about whether work had exacerbated her condition. There was no re-examination. In final address, Ms Beklenoglu’s counsel referred to Dr Kahraman’s evidence that he was ‘uncertain’ and said that ‘that’s probably not surprising’ given that another general practitioner took over treatment of the allegedly work-related conditions. No reference was made to the opinion expressed lower on the page. In this way, Dr Kahraman was presented by both parties as a doctor whose evidence was relevant on the issue as to Ms Beklenoglu’s widespread pains and on whether she had suffered the fall that she described, but not as a doctor whose opinion was relevant to the question of whether she had a compensable injury. In these circumstances, there is no basis to contend that there was any error on the part of the learned Magistrate, let alone an error of law, in not referring to or relying on that document in his reasoning process.
Ms Beklenoglu also submitted that the learned Magistrate erred to the extent that he failed to accept her evidence that her work duties were very heavy and repetitive and by stating that her evidence that she took painkillers every three to four hours was grossly exaggerated. Ms Beklenoglu, relied, again, on the observation made in Duffy v Salvation Army (Victoria) Property Trust[13] referred to above that her evidence was uncontradicted and inherently probable.
[13][2013] VSCA 253.
His Honour stated that he accepted that her work duties were heavy, but also said that Ms Beklenoglu ‘over-emphasis[ed] the heavy nature of her duties’. The same observations apply as discussed above. The learned Magistrate was not obliged to accept Ms Beklenoglu’s evidence just because it was not contradicted in circumstances where her reliability was challenged and his Honour found her to be an unimpressive witness. In any event, I am satisfied that his Honour’s acceptance that her work duties were heavy and in that sense capable of causing injury in the extended sense. But his Honour was not obliged to conclude that the work duties did permanently affect the status of Ms Beklenoglu’s underlying condition. As noted above, the opinion of Dr Kenna was that it did not.
Ms Beklenoglu said that she had taken pain medication every day every three or four hours in the last three years that she worked for Sunrise Cleaning Services Pty Ltd. The medication seems to have been a mixture of tramadol, Celebrex, Nurofen and Voltaren. His Honour considered that this evidence was ‘grossly exaggerated and not corroborated on the medical material’. The observation that it was not corroborated on the medical material was correct. There was no corroboration from Ms Beklenoglu’s treating doctors that she had been prescribed painkillers with the regularity that her evidence would have required, and there was no corroboration in their contemporaneous notes of her taking unprescribed medication to that extent month after month and year after year. Again, in circumstances where Ms Beklenoglu’s credibility was being challenged, and where there was no contemporaneous support, it was not an error of law for his Honour to consider that evidence to have been ‘grossly exaggerated’.
In summary, this was a case where there was evidence that supported a finding that Ms Beklenoglu suffered from an ongoing compensable injury. That evidence was dependent in no small part on Ms Beklenoglu’s evidence as to the nature of her work, the fall, the onset and progression of her symptoms, and her current state. The reliability of her evidence was disputed and there was evidence that the conditions from which she suffered were not affected, or were no longer affected, by her work. It fell to the Magistrate, as the trier of fact, to consider the evidence and make the findings of fact required. His Honour did so in this case, in my view, without legal error.
E. The grounds based on procedural fairness
Ms Beklenoglu contended that she was denied procedural fairness in the way Dr Kahraman’s clinical notes were considered, in the way some of the medical material in her favour was treated, and in the finding that she and her daughter had ‘colluded’. I consider the argument in so far as it relates to the clinical notes separately in Part F below.
E.1 Dr Chehata and Dr Awad
The Magistrate concluded that Ms Beklenoglu’s treating practitioners ‘do not implicate any work involvement in the medical conditions for which they were treating her’. It is not contended that that conclusion was not open. His Honour then stated that two medico-legal experts that Ms Beklenoglu relied on, Dr Chehata and Dr Awad, had based their reports to a large extent on the contents of an affidavit that had not been provided to him, and that he had ‘difficulty accepting their opinions to be valid and reasonable without having seen that affidavit’ himself. It was not contended that those doctors had not been provided with an affidavit that had not been provided to the Court. Ms Beklenoglu contended instead that it was procedurally unfair for his Honour to have decided on that basis, and that, if he were concerned by not having been provided with the affidavit, his Honour was required to inform Ms Beklenoglu’s lawyers of that fact and invite them to provide the affidavit.
I make the following observations about those reports:
(a) The history recorded by Dr Awad in his first report did not refer at all to the fall, and indicated that Ms Beklenoglu ceased work in 2017 as a result of progressively worsening pain in her neck and back.[14] His report did not refer to the fact that she ceased work because of an unrelated cardio-vascular condition. His second report did not set out a relevant history but noted that he had read an affidavit dated 6 November 2021. He then stated that it was ‘clear from the patient’s history and affidavit that her problems started before the fall in 2014’ and that ‘the fall however seems to have aggravated both her spinal pains and her knee pains as well’.
(b) The history recorded by Dr Chehata in his first report, although it included reference to generally heavy work, placed emphasis on the 2014 fall in which, he said, ‘she injured her right knee, shoulder and back and aggravated ongoing pain in her neck and both shoulders’. He ultimately diagnosed ‘bilateral rotator cuff tendon tearing in both shoulder as well as an aggravation of lumbar and cervical spondylosis and an aggravation of osteoarthritis in the right knee’ that was ‘consistent with the stated cause’. He implicated employment in her condition, but did not consider the employment duties separately from the alleged fall. His second report did not contain a history, but noted that he had read ‘the documentation’ with which he had been provided, and stated that ‘the combination of the repetitive and awkward nature of the cleaning jobs, coupled with the fall from 2014’ resulted in aggravation of the underlying conditions.
[14]He declined to express an opinion on her shoulder and knee condition.
In the circumstances of this case, I do not agree that procedural fairness required his Honour to have informed Ms Beklenoglu that the failure to provide him with the affidavit that was provided to these experts might cause him not to accept their evidence. It is well-known that an expert report is dependent in large part on the information provided to and assumptions made by that expert.[15] The prospect that his Honour might rely on a comparison between the findings he made and the history on which doctors had relied in forming their opinions was sufficiently apparent from the material. Accordingly, it was not procedurally unfair for his Honour not to have invited Ms Beklenoglu to tender the affidavit or otherwise to have reasoned the way he did.
E.2 The finding of collusion
[15]See, eg: Ramsay v Watson (1961) 108 CLR 642, 649 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ); Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60] (Gleeson CJ, McHugh and Gummow JJ0; Rowe v Transport Accident Commission (2017) 83 MVR 195, [2017] VSCA 377, [89] (Osborn, Priest and Beach JJA); Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74] (Beach, Kaye and Niall JJA).
The Magistrate stated of Ms Beklenoglu and her daughter:
It is difficult to see how they can both be now more precise some seven years or so after the event than before. I cannot rule out some collusion between them as to the alleged precise time in 2014 and the other events at the time.
Ms Beklenoglu correctly pointed out that it was never put to either of them that they were ‘colluding’. Sunshine Cleaning Services Pty Ltd’s did submit, though, that the fall was a ‘recent invention’, and both of them gave evidence of the fall having happened.
Ms Beklenoglu, in her written submissions in this appeal, contended that the Magistrate had relied on the finding that she and her daughter had colluded in rejecting their evidence as to the fall. I do not agree. It was the other way around. The prospect of collusion arose because his Honour rejected the evidence of each of them that the fall had happened, but there was a striking (albeit, in his Honour’s view, unbelievable) similarity in the evidence they gave. Immediately prior to the passage set out above relied on by Ms Beklenoglu, his Honour said, after considering the various occasions in which there had been no reference to a fall where, had a fall of the type and of the severity described taken place some reference to it might have been expected:
[Ms Beklenoglu] now gave much detailed evidence about the circumstances of the fall including the people present and the aftermath which I find difficult to accept. At all times she has been very vague as to the approximate date/time of such a fall. However, she and her daughter gave very similar evidence to me now that it occurred about late 2014.
Seen in that context, the possibility of collusion arose after, and because of, the rejection of the evidence of each of them that the fall had occurred.
Further, and in any event, it was abundantly clear that the evidence of both Ms Beklenoglu and her daughter that the fall had occurred (and was of the severity described) was challenged. The challenge extended to their credibility, not just to the accuracy of their memories. The suggestion that the similar evidence they both gave was false, in the context of this case, carried with it an implied suggestion that they had discussed the (false) evidence that they would give. In that context, a finding of an ‘inability to rule out collusion’ was not procedurally unfair.
Finally, it is worth noting that his Honour did not, in fact, conclude that there was collusion. It was not necessary for him to do so. His operative finding was that there had not been a fall. The possibility that there had been collusion remained merely that.
F. The clinical notes
There was some confusion concerning Dr Kahraman’s clinical notes. Ms Beklenoglu called Dr Kahraman to give oral evidence. Counsel for Sunshine Cleaning Services Pty Ltd provided a soft copy of a 40 page bundle of notes to the Court prior to Dr Kahraman being cross-examined. The bundle covered the period from 2 April 2013 to 13 June 2017. Counsel indicated to the Court, at that time, that he would refer to ‘probably five’ attendances and that he would be would be tendering ‘them’. It was not clear whether this meant that he intended to tender the 40 page bundle or just extracts from it. There was some difficulty in opening the electronic file. The solicitors for Sunshine Cleaning Services Pty Ltd later emailed a soft copy of the file consisting of the 40 pages to the solicitors for Ms Beklenoglu, and described it as the clinical notes that were ‘tendered to the court’.
The full bundle was never formally tendered. At the end of the oral evidence, but before final addresses, counsel for Sunshine Cleaning Services Pty Ltd said that he wished to tender the records of Dr Kahraman ‘covering 2014 and the four attendances at that practice in April 2017’ (being attendances on 4, 12, 13 and 26 April 2017). The exhibit received was described as ‘Dr Kahraman’s notes of 2014 plus the four attendances in April 2017’. Counsel for Ms Beklenoglu noted that her opponent ‘was going to tender’ all the clinical notes but that he had only tendered some of them, that she intended to take the Court to some of the notes in her final address, asked her instructors to provide a full copy to the Court, and stated that she couldn’t expect his Honour to read all of them but that she would like to take him to ‘a few entries within that period’. His Honour stated that he had Dr Kahraman’s notes from April 2013 and June 2017, and counsel for Ms Beklenoglu that ‘it might just be that period before then’. She then provided, and tendered, documents that were described as ‘clinical notes of Dr Kahraman that predate April 2013.’
The parties then gave their final addresses. Counsel for Sunshine Cleaning Services Pty Ltd submitted that Dr Kahraman’s notes made no mention of the fall and that Dr Kahraman had confirmed that in his oral evidence. Counsel for Ms Beklenoglu accepted that Ms Beklenoglu did not mention the fall to Dr Kahraman and that there was no reference to the fall in his clinical notes. In support of her argument on causation, she referred the Magistrate to and read from the notes of attendances on 12 February 2013, 18 March 2013, 3 December 2014 and 12 December 2016 and stated that although there were ‘multiple references to or complaint about the physical injuries themselves’ in his notes, those were ‘the references that I located that actually specifically reference work.’ Save for the 2016 entry, the notes of each of those attendances were in evidence. No issue was taken with counsel referring to the note of the attendance on 12 December 2016 which was not, strictly, in evidence.
The note on 12 February 2013 said ‘this morning at 9.30 – at work – on usual duty – sudden sharp stabbing pain R) loin pain, radiated to R) leg’. The diagnosis was uncertain. The note on 18 March 2013 said, in the context of a complaint of knee pain, ‘working last few weeks heavy and very busy, cleaner, walking and standing and kneeling’. The diagnosis was osteoarthritis in the right knee. The note on 3 December 2014, in the context of an attendance for knee issues, included ‘3 weeks ago after up and down stairs, felt unwell’ but this seems to have been in the context of cardiac issues. The note on 12 December 2016 said that Ms Beklenoglu had been reviewed recently by another doctor and then said, in the context of complaints of shoulder pain, ‘also continue to work as heavy duty, b/o (which I read as c/o, or complaining of) persisting issues and requested MRI’.
The learned Magistrate in his reasons stated that Dr Kahraman’s notes contained ‘very little reference to work involvement’ in Ms Beklenoglu’s injuries or symptoms. His Honour then stated:
Her counsel points to two attendances in 2013, one in 2014 and one in December 2016, during which she mentioned any heavy work or possible work involvement. In the circumstances I believe that such complaints were very brief and transitory at best having regard to the large number of times he had seen her from the start in 2012 to her cessation of work. Importantly, he was not told by her in or about 2014 that she had had a fall at work.
Ms Beklenoglu’s ground of appeal contended that: the Magistrate appeared to treat the full set of notes as being in evidence but ‘failed to have proper regard to them’; the Magistrate ‘misdirected himself as to the proper inference to be drawn from them’; the inference that the work-related complaints were brief and transitory was not open; alternatively, the Magistrate failed to treat the notes as being in evidence and thereby denied her procedural fairness; and the Magistrate failed to provide proper reasons for his finding that the complaints of work-related pain and symptoms were brief and transitory.
I do not consider that any of these grounds are made out. There was no procedural unfairness because there were no attendances on Dr Kahraman to which Ms Beklenoglu referred that were not considered by the Magistrate. Further, there was no dispute that there were many attendances on Dr Kahraman in which Ms Beklenoglu did not make any reference to her work duties causing her any physical problems and a small number in which she did. In those circumstances, it was open to the Magistrate, who also saw and heard Dr Kahraman give oral evidence, to conclude, whether from the full set or only those formally tendered, that Ms Beklenoglu’s complaints of pain that she associated with her work duties were brief and transitory. The reasoning was apparent: there were many attendances, and only occasional complaints that implicated work that were not repeated at subsequent attendances.
G. The grounds based on reasons
Ms Beklenoglu contended that his Honour had failed to provide a ‘proper path of reasoning’ for: his rejection of three of the experts who supported Ms Beklenoglu’s case or his preference for the opinions of Dr Kenna; his conclusion that Dr Kenna did not support Ms Beklenoglu’s case; his conclusion that Ms Beklenoglu was an unimpressive witness as to the onset of her symptoms; his conclusion that she had ‘decided to retire’; and his conclusion that she and her daughter had ‘colluded’. She also contended that his Honour had failed to identify what consideration he gave to Ms Beklenoglu’s explanation for not reporting her injuries, and why he concluded that that she had not suffered even temporary injury in the course of her employment.
The last point may be quickly disposed of. For the reasons set out earlier in these reasons, having regard to the way the case was run, his Honour was not required to consider whether Ms Beklenoglu had suffered from a temporary injury in her employment.
The contention that his Honour failed to give adequate reasons for his conclusion that Dr Kenna did not support Ms Beklenoglu’s case may also be quickly disposed of. That argument relies on the fact that Dr Kenna in his last report expressed the view that some of Ms Beklenoglu’s conditions ‘would continue to have a work-related component’ having regard to the fall in 2014. But his Honour did not accept that a fall of the type described had occurred. It is apparent that, but for the fall, Dr Kenna was of the view that there was no work-related component to Ms Beklenoglu’s current condition.
Otherwise, I am of the view that his Honour’s reasons were adequate. Indeed, I consider them, with respect, to have been thorough. A Magistrate is required to set out the findings of fact that are made and to explain why those findings are made, and to explain the conclusions that are drawn from those findings. That does not mean that a Magistrate is required to refer to every piece of evidence that is led and to give detailed reasons explaining why that piece is or is not preferred to another piece of evidence. His Honour did not accept her as a witness of truth, and explained why. The reasons provided, set out in some detail in Part B above, reveal how his Honour reached the views his Honour did and otherwise permit Ms Beklenoglu to understand why it is that she failed.
H. Final observations and disposition
Ms Beklenoglu had significant pre-existing or unrelated degenerative and progressive medical conditions. Whether her work affected their progression was a question of fact the resolution of which depended, as the learned Magistrate observed, in large part on whether her evidence as to the pattern of her symptoms associated with her work duties could be accepted. The learned Magistrate was not persuaded by her evidence that her work had affected the progression of her underlying conditions. That was a finding of fact that was informed by the impression the Magistrate made of those who gave oral evidence and was consistent with expert evidence that was before his Honour. The legislature has entrusted the resolution of such facts to the Magistrates’ Court and has not given a power of appeal against them even if one party considers the findings to be ‘wrong’. It will be a rare case where a party with the onus can establish, in the absence of some error of approach, that there was an error of law in an ultimate factual finding that the onus was not discharged. Where there is evidence that one party considers should have been accepted that would have resulted in success, it is tempting for that party to consider that there must have been some appellable error if the evidence is not accepted. I have accepted, for the purposes of this appeal, that a finding of intermediary fact will amount to an error of law if the finding was not open,[16] but that must not be allowed to become a process where what are in truth complaints about the assessment of evidence or other findings of fact are turned into a supposed error of law; there must be room for ‘errors of fact’ that are not ‘errors of law’.
[16]Cf eg, Transport Accident Commission v O’Reilly [1992] 2 VR 436, [58] (Callaway J).
The appeal will be dismissed. I will hear the parties on the question of costs.
---
0
13
0