Keating v Victorian Workcover Authority [2025] VCC 1127

(a) Which symptoms can Ms Keating rely on in this application?

(b) How reliable is Ms Keating's evidence of the consequences of her injury?

Which symptoms can Ms Keating rely on in this application?

1. Ms Keating claimed that, as a result of her workplace injury, she had suffered an impairment of her right upper limb. She contended that this included pain in her right hand, wrist and forearm, as well as pain and dysfunction in her right little finger.
2. The defendant accepted that Ms Keating could rely on right little finger pain. It also accepted that, in the abstract, the impairment of the function of any part of Ms Keating's right upper limb could be considered impairment of "a body function" for the purpose of the definition of serious injury. However, it denied the pain which Ms Keating reported in her right hand, wrist and forearm was a consequence of the workplace injury. Accordingly, it said Ms Keating could only rely upon pain and dysfunction in her right little finger.

1. The definition of serious injury in s325 of the Act places the burden on Ms Keating to establish that any pain she wishes to rely upon:

(a) was a consequence of the impairment of a body function which arose out of, or in the course of, or due to the nature of, her employment;[2] and

(b) was not a psychological or psychiatric consequence.[3]

1. Ordinarily, this would require medical opinion. In this case, the medical opinion in relation to the cause of Ms Keating's reported pain in her right hand, wrist and forearm is minimal. General Practitioner, Dr Nadee Samarawickrama, in a report dated 26 February 2025, refers to Ms Keating experiencing "episodic referred pain through to forearm."[4] However, he is not a specialist in hand injuries and provides no explanation for his opinion that pain through to Ms Keating's forearm is "referred pain." As a general practitioner, it is likely that his opinion was largely based on self-report by Ms Keating.
2. The treating and medico-legal specialists either do not record right hand, wrist or forearm pain, or are unable to confirm that this pain was a consequence of the right little finger injury. Thus:

(a) treating orthopaedic surgeon, Mr Grant Pang, who first saw Ms Keating on 2 May 2022 and reviewed her on 6 May 2022, 6 June 2022 and 21 July 2022, did not describe pain extending to the right hand or arm in his report. He expressed the view that:

"... Fracture of her terminal phalanx of her little finger should not cause any significant long term loss of function or restrictions in personal, recreational nor occupational activities;"[5]

(b) treating orthopaedic surgeon, Mr Eugene Lim, who first saw Ms Keating in August 2022 and who performed a curettage and synthetic bone grafting in October 2022, stated:

"... [Ms Keating] has reduced flexion due to loss of coordination and co-contracture of the digits that cannot be explained by the injury itself. I am unsure of the cause or diagnosis of her forearm and wrist pain;"[6]

(c) medico-legal pain specialist, Dr Symon McCallum, who was retained by Ms Keating and assessed her on 19 December 2024, carefully distinguishes between the pain and dysfunction in Ms Keating's right little finger and the pain and dysfunction in Ms Keating's right wrist and right forearm:

"Yes, I do believe that Ms Keating's problems in her right little finger are due to the workplace incident. I am not able to give an exact cause for the wrist and the forearm pain.

"...Yes, there is clearly an organic injury for the right little finger injury.

I am unable to give a cause for the wrist or forearm pain.

"...I believe the majority of her restrictions are related to the right little finger injury. ... ."[7]

"...I cannot give a cause for the wrist pain. There seems to be no mechanism of injury. I think the forearm pain is going to be muscular;"[8]

(d) medico-legal hand surgeon, Mr Damon Thomas, who was also retained by Ms Keating and assessed Ms Keating on 21 April 2025, was apparently not able to obtain any history of symptoms in the right hand, forearm or wrist, stating:

"On questioning Ms Keating multiple times, she does not feel she has had an injury of the hand, wrist or arm beyond the right little finger in isolation. Again, on review of [Ms Keating's] clinical file, I cannot see anything to indicate anything apart from the right little finger has been injured.

Again, on questioning Ms Keating does not feel she has had an injury beyond the right little finger."[9]

"As documented, on specific questioning multiple times, Ms Keating does not believe that she has had any injury to her right upper limb and wrist beyond the right little finger.

She does not have any functional or physical deficits beyond the right little finger... ."[10]

(e) medico-legal surgeon, Dr Murray Stapleton, who was retained by the defendant and assessed Ms Keating on 24 January 2025, does not refer to symptoms beyond the right little finger;

(f) medico-legal consultant occupational and environmental physician, Dr Umberto Boffa, who was retained by the defendant and assessed Ms Keating on 26 October 2023, also does not refer to symptoms beyond Ms Keating's right little finger; and

(g) medico-legal occupational physician, Dr Joseph Slesenger, who was retained by the defendant and assessed Ms Keating on 13 May 2024, describes residual pain in the right hand at the base of the little finger and restricted range of movements, together with weakness in the right hand. He recorded no difference in range of motion between the left and right wrist. His diagnosis was of:

• Crush injury.
• Pathological fracture for which Ms Keating has undergone curettage and bone graft right little finger enchondroma.
• Chronic right little finger pain."[11]

1. Hand therapist, Hannah Tarrant, who first saw Ms Keating in May 2022, does state in her report of 20 May 2022 that:

"Ms Keating advised that over the last week she has begun to get pain in her wrist and forearm. Which could be as a result of hold her arm in an un natural position to protect her finger"[12] [sic]

1. Physiotherapist, Nathan Palmieri, in a report dated 8 January 2025, also describes "[r]educed grip strength and functional limitations" as "secondary to pain experienced in the right little finger which may [be] caused by the initial incident causing injury."[13] However, he continued:

"... Ongoing pain or other subjective reports may be influenced by psychological/psychiatric factors which may require external assessment/diagnosis."[14]

1. These tentative opinions from a hand therapist and physiotherapist are not sufficient to establish that the pain Ms Keating reports in her right hand, wrist and forearm, can be relied on in this application. This is particularly so in the context of the absence of evidence supporting such a link from any of the specialist medical doctors described above.
2. In some cases, it may be possible to establish causation without express medical opinion, for example when there is a strong temporal nexus between injury and symptoms, together with a plausible mechanism of injury. However, the evidence in this case falls well short of the detail and specificity which would be required for this purpose. Thus, in paragraph 27 of her first affidavit, Ms Keating states, "I also started to experience pain in my other fingers/hand, right wrist and forearm."[15] However, she provides no other evidence in relation to the nature, origin or development of this pain. She then states the pain "goes into"[16] or "continues to travel"[17] from her right finger to other parts of her right upper limb. Otherwise, she describes the consequences on which she relies as resulting from pain in her right little finger, hand, wrist and forearm without any attempt to differentiate between different sites of pain. For example, when describing the impact of the injury on her ability to ride a bike, she said:

"... Trying to grip the handlebar increased the pain in my right little finger, hand, wrist and forearm. I have not been able to return to bike riding with my family."[18]

1. Ms Keating's evidence is not sufficient to establish that the pain she describes in her right hand, wrist and forearm has the required connection to her workplace injury, particularly given the concerns about the reliability of her evidence that I describe below.
2. I am not satisfied that the right hand, wrist and forearm pain described by Ms Keating:

(a) was a consequence of the impairment of a body function which arose out of, or in the course of, or due to the nature of her employment;[19] or

(b) was not a psychological or psychiatric consequence.

1. Accordingly, in this application, Ms Keating can only rely upon the consequences of pain and dysfunction in her right little finger.
2. Throughout her affidavit evidence, Ms Keating speaks of the consequences of the pain in her right little finger, hand, wrist and forearm without attempting to identify the consequences, specifically, of the pain in her right little finger. Further, in her oral evidence she agreed:

(a) she had quite an intense aching pain in her right wrist that was there every day,[20] and also an aching in her forearm;[21]

(b) the pain in her right wrist limits heavier cleaning, gardening, biking, driving long distances, ability to lift weights, ability to lift heavier objects and ability to grip something strongly;[22] and

(c) the pain in her forearm limits her ability to do more arduous cleaning jobs, garden and weed, ride bikes, drive long distances or lift weights at gym.[23]

1. Given I have determined that pain in her right wrist, hand and forearm cannot be relied on as part of the workplace injury, this undermines the strength of her contention that the consequences she relies upon are consequences of the workplace injury.

How reliable is Ms Keating's evidence of the consequences of her injury?

1. Counsel for Ms Keating contended that Ms Keating had given evidence in a forthright, honest and straightforward manner and her evidence should be accepted. Counsel for the defendant contended Ms Keating was not a reliable witness and that the reports of treating and medico-legal practitioners, and surveillance, gave a more accurate picture of Ms Keating's symptoms. He focused particularly on five topics in which he contended significant reliability issues arose:

(a) her use of Panadol and Nurofen;

(b) whether there had been any improvement after surgery with Mr Lim;

(c) her attendances at her usual GP, Dr Masantharubi Govender at the Kealba Family Practice;

(d) the genesis of gastrointestinal issues which led to a colonoscopy;

(e) her grip strength; and

(f) her general day-to-day function.

1. The defendant did not invite me to find that Ms Keating was a liar; and I make no such finding. However, I have formed the conclusion Ms Keating was not a reliable witness. I have arrived at this conclusion from the way she delivered her oral evidence; the inconsistencies between her evidence and the histories and observations of treating and medico-legal practitioners; and the contrast between how she appeared in court and her appearance in surveillance.
2. First, in relation to the way she delivered her oral evidence. At times, Ms Keating made frank concessions. However, her evidence shifted according to her focus. Her oral evidence commenced with assertions of disability and causation expressed in absolute terms. When shown documents that contradicted this evidence she could make quite frank concessions. But then, when her attention was drawn to her previous evidence, she would attempt to redefine or resile from her earlier agreement. Thus:

(a) in relation to her usage of Panadol, she first confirmed her affidavit evidence that she took Panadol most days of the week. However, she then said she had to cut back on both Nurofen and Panadol because of stomach issues,[24] while continuing to maintain (when reminded of her affidavit evidence) that she took Panadol on most days.[25] After being shown a number of medical reports which did not refer to Panadol usage, she described herself as taking it "occasionally" or "not regularly."[26] At one stage she agreed that she took Panadol approximately weekly.[27] But then, when reminded of her affidavit evidence, asserted that she did not view taking Panadol once per day as taking it regularly;[28]

(b) when questioned in relation to the cause of stomach issues which had led her to have a gastroscopy, she first emphatically insisted "I'm positive[!]"[29] this was due to taking a lot of Panadol and Nurofen.[30] She also denied being prescribed Mobic for a knee injury in mid-2023, or that this could be a cause of her stomach issues. She was then taken to clinical notes which recorded her being prescribed Mobic for her knee injury on 29 June 2023 and then telephoning the next day complaining of a bad reaction to "TAKING MOBIC LAST NIGHT."[31] The clinical note goes on to describe her symptoms in some detail. A further clinical note, about one month later, notes that she has "?GORD SINCE ANTI-INFLAMMATORY MEDS", suggesting it be monitored and "? GASTROSCOPY."[32] At first, she suggested it was an antibiotic, rather than Mobic, which was prescribed for her knee injury. Ultimately, though, she said she was "really not sure" and "possibly could have taken one and had a reaction, but I specifically remember I did ring back the next day;"[33] and

(c) as I will discuss further below, she commenced her oral evidence nursing her right hand in her left hand, with her little finger outstretched. She said she held her little finger in this position "most of the time"[34] and agreed this was how she tended to live her life now.[35] After being shown surveillance in which she did not appear to be holding out her little finger, she explained that the pain tended to come on as the day went by. She was then read paragraph 18 of her second affidavit, in which she states she continues to rely more on her left hand and arm for daily tasks. She then denied the pain was just at the end of the day. But when reminded of her earlier evidence that the pain came on as the day went by, she agreed that up until early afternoon she was able to use her left and right hand relatively equally.[36]

1. Second, there was a marked contrast between Ms Keating's evidence and what was recorded or observed in the reports of both treating and medico-legal practitioners. Thus:

(a) she claimed in her oral evidence to suffer constant pain, but is recorded in Dr McCallum's report as suffering an "intermittent"[37] ache and in Dr Stapleton's report as having a "dull ache in the right little finger at rest;"[38]

(b) Mr Lim recorded her as moving from a range of motion of only 10 degrees two months post-surgery,[39] to having a full range of motion "with concentration"[40] a bit over a year after surgery. Ms Keating, on the other hand, maintained she had not improved at all since the surgery[41] and described communicating to him that she was experiencing excruciating pain when he examined her;

(c) she claimed to take Panadol most days of the week, but Dr McCallum does not record Panadol use under medications in his report of 19 December 2024; Dr Boffa refers to her taking a weekly Panadol;[42] and Dr Slesenger says that "in the past, she was taking anti-inflammatory medication and analgesic medication, but ceased due to gastrointestinal side effects;"[43] and

(d) she claimed to have a loss of grip strength of "absolutely"[44] 80 per cent, which is so severe she is unable to do upper-body weight work. However, grip strength or lifting ability is recorded by surgeon, Mr Lim, and physiotherapist, Mr Palmieri, as a reduction in capacity more in the region of 20 to 25 per cent when compared to the left.[45] Indeed, Mr Palmieri certifies her as capable of bilateral lifting of up to 25 kilograms.[46]

1. Finally, there was a marked contrast between Ms Keating's presentation in court and her evidence in court, on the one hand, and surveillance footage. Ms Keating delivered her oral evidence cradling her right hand in her left, with her right little finger sticking out at an angle. When asked to demonstrate making a fist which her right hand, she did so by curling all her fingers but her little finger, leaving her right little finger at an angle of approximately 90 degrees. When questioned, she said "most of the time" she holds her finger outstretched[47] and that nursing her right hand in her left was how she tends to live her life now.[48] She said she tended to use her left hand for activities such as operating a cash register, and that when given a choice she would use her left hand. Yet surveillance footage taken over a number of days showed her using her right hand to operate the cash register. It showed her using her right hand to open a door, including twisting a key in the lock. I could see no sign in this surveillance of her favouring her left hand or holding her right little finger at the awkward angle she demonstrated in court. Her explanation of her presentation in the surveillance was that her pain was less at the beginning of the day and became severe at the end of a day's work. Yet, she had not worked prior to giving evidence in court, and the surveillance included footage from the early afternoon.
2. I am conscious that surveillance is merely a snapshot and that it is not necessarily possible to "see" pain in video footage. I am conscious that medical professionals do not always take accurate notes and that miscommunications can occur when history taking. I am also conscious that some may not view Panadol as medication for the purposes of a medical report. I have also considered the supportive affidavit of Ms Keating's partner, Daniel Ash. That affidavit is quite general and based largely on Ms Keating's presentation and statements to him. As such, it is only as reliable as that presentation and those statements.[49]
3. Minor inconsistencies and shifts in evidence may be expected. However, after considering the matters outlined above as a whole, I have concluded Ms Keating's evidence is not sufficiently reliable to be accepted.

Has Ms Keating satisfied the Court she has suffered a serious injury?

1. Having regard to my findings above, I accept Ms Keating continues to suffer from pain and dysfunction in her right little finger as a result of the accident. However, I do not accept this pain is continuous, nor do I accept it increases to a severe level on a daily or near daily basis. It is more likely to be an intermittent dull ache which at times increases in severity, as described in the reports of Dr McCallum and Dr Stapleton.
2. I accept Ms Keating has a reduced range of motion in her right little finger. However, I do not accept the range of motion she demonstrated in court is typical. I find she can make an almost complete, if not complete, fist as demonstrated in the surveillance and recorded by Mr Lim.
3. I also accept Ms Keating has reduced grip strength in her right hand as a result of her workplace injury. However, this is in the order of a 20 to 25 per cent reduction in grip strength or lifting capacity and not so severe as to prevent her bilaterally lifting up to 25 kilograms.
4. I accept that, as a result of the workplace injury, surgery was required to remove a pre-existing benign tumour in her right little finger. I also accept hand therapy and home-based exercises are a reasonable treatment for the ongoing intermittent pain and reduced range of motion in her right little finger.
5. I do not accept she takes Panadol on most days of the week. I do not accept she takes more than an occasional Panadol for her right little finger pain. She has not relied on any other medication taken for her right little finger pain or dysfunction.
6. Ms Keating did not rely upon loss of income earning capacity consequences. Nor did she rely upon loss of an occupation she found meaningful. In accordance with the certificate of Mr Palmieri, I find she is capable of working full time with appropriate modifications, such as rest breaks and a lifting limit of no more than 25 kilograms bilaterally.
7. Although there may be times where Ms Keating favours her left hand over her right, I do not accept that, on a day-to-day basis she tends to use her left hand rather than her right, or that when given the choice she uses her left hand. Her presentation in surveillance is more likely to be an accurate representation of her daily function than her presentation in court.
8. Ms Keating is still able to cook and perform most housework tasks, although she may have to modify or reduce her performance of some heavier tasks. I accept the pain and dysfunction in her right little finger may require her to modify or pace heavier gardening tasks. However, I am not satisfied it prevents her from effectively maintaining a garden, or that her ceasing to grow vegetables can fairly be viewed as a consequence of pain and dysfunction in her right little finger.
9. I accept Ms Keating's right little finger pain and dysfunction impacts her capacity to do upper-body gym work and that some modification of her program may be required. However, I do not accept her evidence of the extent of that impact. The level of functioning described by treating and medico-legal practitioners is not consistent with a complete inability to do upper-body gym work as a result of right little finger symptoms.
10. Given my findings that right hand, wrist and arm pain are not a consequence of her workplace injury, and my findings as to the lack of reliability of her evidence, I am not satisfied that cessation of bike riding can fairly be viewed as a consequence of her workplace injury. However, it is reasonable to assume that a flare-up of right little finger pain would reduce her enjoyment of this and other physical activities. I have taken this into account.
11. Ms Keating remains able to drive. I am not satisfied that right little finger pain and dysfunction significantly impacts on her ability to drive, although it may have resulted in a reluctance to drive long distances. I have taken this into account.
12. As I said at the outset, the threshold for a serious injury under s325(1) of the Act requires the relevant consequences to be not just permanent, but also "very considerable". I accept Ms Keating suffers ongoing intermittent pain and dysfunction in her right little finger and that this has some impact on her activities of daily life and her recreational activities. I accept this can be described as a permanent impairment of a body function. However, I am not satisfied that, when judged by comparison with other cases in the range of possible impairments of a body function, the consequences of that impairment can fairly be described as "at least very considerable."
13. I am not satisfied Ms Keating has suffered a serious injury within the meaning of s325(1) of the Act. Ms Keating's serious injury application is dismissed.

[1] This is a paraphrase of the relevant portions of the section.

[2] Ss 325(1), 325(2)(b)-(c), 326 and 327 of the Act

[4] Plaintiff's Amended Court Book ('PCB') 35

[15] Paragraph [27] of the affidavit of Betty Keating sworn 29 February 2024 ("first affidavit") at PCB 20.

[16] For example, see paragraph [43] of the first affidavit at PCB 22.

[17] For example, see paragraph [15] of the affidavit of Betty Keating sworn 19 March 2025 ("second affidavit") at PCB 27.

[18] Paragraph [22] of the second affidavit at PCB 28

[19] Ss 325(1), 325(2)(b)-(c), 326 and 327 of the Act

[20] Transcript ("T") 5, Lines ("L") 17-23

[24] For example, T7, L22-24 and T8, L6-10

[26] For example, T14, L8-10 and T14, L18-19

[30] For example, T7, L22-24, T8, L6-10; and T8, L11-12

[31] Defendant's Further Supplementary Court Book ("'DFSCB') 142

[46] See Certificate of Capacity dated 2 November 2024, DFSCB 3

[49] Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraphs [68]-[69]