Zovidavi v Pro-Pac Packaging (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zovidavi v Pro-Pac Packaging (Aust) Pty Ltd [2025] NSWPIC 529
APPLICANT:	Mahmoud Zovidavi
RESPONDENT:	Pro-Pack Packaging (Aust) Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	7 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment compensation; whether the applicant suffered injuries in the nature of disease processes to his lumbar spine, right knee and/or ankle in addition to accepted frank injuries to those body systems; applicant suffered accepted frank injuries to his lumbar spine and right lower extremity; also claims injuries in the nature of disease processes or aggravations of disease processes to the same body systems; respondent denies liability in relation to the claimed disease injuries; Held – applicant suffered disease injury to his right lower extremity (knee) and lumbar spine; applicant also suffered frank injuries to these body systems and to his right ankle; award for the respondent on the claim for disease injury to the right ankle; matter remitted to President for referral of above injuries to medical assessor to determine degree of permanent impairment; questions of aggregation are adjourned for further preliminary conference post-medical assessment certificate.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant suffered an injury to his right lower extremity (knee) and lumbar spine in the course of his employment with the respondent, with a deemed date of injury of 12 August 2011. 2. The applicant suffered an injury to his right lower extremity (knee and ankle) in the course of his employment with the respondent on 10 October 2013. 3. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 9 January 2014. 4. Award for the respondent in relation to the claim for disease injury to the right lower extremity (ankle). 5. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: (a) Date of injury: · 12 August 2011 (deemed); · 10 October 2013, and · 9 January 2014. (b) Body systems referred: · lumbar spine; · right lower extremity (knee), and · right lower extremity (ankle). (c) Method of assessment: whole person impairment. 6. The claim for medical and treatment expenses is adjourned until after the issuing of the Medical Assessment Certificate. 7. The matter is to be listed for further preliminary conference before me following the issuing of the Medical Assessment Certificate for the purposes of determining any questions arising from the Medical Assessment Certificate relating to aggregation of impairment. 8. It is specifically noted that the applicant’s right ankle injury only arose from the frank incident on 10 October 2013. 9. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mahmoud Zovidavi (the applicant) was employed as a truck driver with the respondent, Pro-Pack Packaging (Aust) Pty Ltd in or about 2008 on a full-time basis.
The applicant claims to have suffered injury in the nature of a disease process or aggravation of such a process to his lumbar spine and right lower extremity (knee and ankle) as a result of the nature and conditions of his employment with the respondent from 2008 until 2015. That injury is disputed by the respondent, however, there is no issue the applicant suffered a right knee injury in a frank incident on 10 October 2013 and a frank injury to his lumbar spine on 9 January 2014.
The applicant originally claimed a deemed date of injury of 29 June 2015, however, at the hearing, it became apparent that if there is any deemed date of injury, the first incapacity suffered by the applicant as a result of his injury was on 12 August 2011, which would therefore be the correct deemed date of injury.
The applicant claims permanent impairment compensation and medical and treatment expenses in relation to his alleged injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered an injury in the nature of a disease process or aggravation to a disease process to his lumbar spine as a result of his employment with the respondent;
(b)    whether the applicant suffered an injury in the nature of a disease process or aggravation of a disease process to his right lower extremity and (knee and/or ankle) as a result of the nature and conditions of his employment with the respondent, and
(c)    if the answer to either (a) and/or (b) above is in the affirmative, whether any impairment suffered by the applicant can be aggregated with that suffered in the frank injurious events in 2013 and 2014.
At the hearing, the parties agreed that whether there was a finding of injury in the nature of disease process or not, the affected body systems would be the subject of referral to a Medical Assessor.
It was also agreed between the parties that any questions of aggregation would be adjourned until after the issuing of any Medical Assessment Certificate (MAC), noting the findings of the Medical Assessor will be relevant to any questions of aggregation or attributability to various injurious events.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 30 September 2025. The applicant was represented by Mr Scigliatano, instructed by Ms David. The respondent was represented by Mr Stiles, instructed by Ms Whiting.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attachments, and
(b) Reply and attachments;

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a disease injury or aggravation of a disease to his lumbar spine

The applicant came to Australia in or about October 2004, against the background of obtaining a Technical Diploma majoring in Electrical Engineering in his native Iran. In his native country, the applicant worked as an installer of park equipment mostly used for children’s playgrounds from approximately 1981 for 10-11 years. In or about 1992, the applicant worked with a company in Iran repairing gas appliances, an occupation in which he remained until approximately 2001.
On arrival in Australia, the applicant attended English classes for approximately one year from October 2004. He then registered with employment agencies before commencing work with the respondent in or about 2008, his position becoming permanent on 9 March 2009.
The respondent is a packaging company which packaged numerous products including palette wraps, safety products, bags, cleaning supplies, labels, signs and consumables. The products were obtained by the respondent and packed in appropriate packaging at their factory before distribution to various customers. The applicant’s duties involved number of repetitive and heavy physical movements which he set out at [22] of his statement.
I do not propose to repeat the applicant’s evidence verbatim, suffice to say it is uncontested and there is no suggestion that his duties were anything other than heavy and repetitive. Relevantly, the applicant noted his time spent loading parcels onto his truck would take about one hour each shift, and the time spent unloading the parcels, including locating them in the appropriate section of the truck and delivering them to site would be two to three hours each shift. He stated that on each run, he would deliver to between 10 and 20 different locations.
The applicant described the physical movements involved in his work as delivering individual parcels weighing between 15 to 20 kg, which meant he had to repetitively twist, bend, squat, kneel, lift, carry, load, unload, push and pull parcels together with jumping onto and off the truck and opening and closing the truck’s side gates and curtains. The applicant also stated he had to walk for prolonged periods and drove a manual truck for between three to four hours per day along with having three to four long distance trips per month in which he would drive two hours each way for delivery of various items.
The respondent’s Independent Medical Examiner (IME) Dr Breit gave indication in one of his reports that the nature of the applicant’s employment was not heavy. The applicant’s evidence plainly shows this not to be the case, and given that evidence is substantively uncontradicted, I accept it.
The applicant noted clinical records provided by his general practitioner (GP) support a finding of the onset of back pain before the frank incidents in 2013 and 2014. A review of the material demonstrates this is plainly the case.
On 7 February 2011, the applicant attended on his GP, Dr Botros, at which time, the clinical entry noted he had been on medication for two years for severe back pain. The entry suggests this timeframe extends to either late 2008 or early 2009.
The applicant then consulted Dr Botros again on 12 August 2011 complaining of lower back pain. That entry recorded no history of “trauma or heavy lifting”, however, that history is plainly contradicted by the applicant’s version of events surrounding his duties. It was at this entry, the applicant was first advised to stay away from work because of his back pain, and the parties agreed at the hearing that this date is the correct deemed date of injury, in accordance with the Court of Appeal’s decision in Haddad v Geo Gould Australia Pty Ltd [2024] NSWCA 135 (5 June 2025) (Haddad).
In that matter, the worker made a claim for weekly payments and medical expenses from his first date of incapacity, namely 20 January 2017 onwards. Having withdrawn the claim for weekly payments in November 2021, the worker alleged the correct deemed date of injury was the date of claim (19 January 2021) rather than the date of first incapacity, 20 January 2017.
The Court of Appeal held that when a worker suffers incapacity, the fact they later make a claim for a benefit which does not rely on that incapacity does not mean the fact of the incapacity can be ignored, and as such the correct deemed date of injury was 20 January 2017, being the first date of incapacity.
Applying the Court of Appeal’s reasoning in Haddad to the facts of this matter, it follows the correct deemed date of injury is that of the applicant’s first date of incapacity, namely 12 August 2011. This being so, in the event there is a finding of an injury in the nature of a disease process or an aggravation of a disease process, this date will be the correct deemed date of injury.
For the respondent, Mr Stiles noted, it was unclear as to whether the applicant had suffered any issues with his back before he commenced working with the respondent, and as such, the fact radiological investigations from as early as 2012 demonstrated advanced degenerative changes was suggestive of employment was not the cause of any disease process in the applicant’s spine.
Mr Scigliatano, however, noted that absent any evidence to the contrary, it was appropriate to accept the applicant and note his employment and the duties therein which were heavy, repetitive and consistent with either having caused or aggravated the pathology in the applicant’s lumbar spine.
Dr Breit, the respondent’s IME attributed the applicant’s lumbar spine condition to the underlying pathology contained in that body system, which he did not attribute to the applicant’s employment. Dr Breit did, however, concede the injurious event in January 2014 was causative of an aggravation in the applicant’s lumbar spine, and as such, there is no question that event will be referred to a Medical Assessor for determination.
The applicant attended his GP on 29 August 2012, at which time he was noted as suffering back pain with radiculopathy. He was advised to take pain killers and anti-inflammatories.
The applicant further attended on 13 September 2012, also complaining about his low back and to discuss the results of a CT scan, which showed advanced discogenic pathology in his lumbar spine. At that time, the applicant accepted a proposed cortisone injection to his lumbar spine.
On 25 September 2012, the applicant returned to his doctor noting he felt much better after the injection but was feeling pain in both his knees. At that time, his doctor noted a collateral tendons injury on the right knee.
At a consultation on 26 November 2012, the applicant’s back pain had returned. On 13 December 2012, there was bilateral knee pain with limping.
Further consultations continued from time to time up until a visit to the GP on 10 October 2013, which recorded the relevant forward work on the same day. On that day, the applicant complained of pain in his right ankle, which later developed into pain in his right knee.
The clinical records revealed there was no prior complaint of right ankle pain before the incident on 10 October 2013. This being so, I am not satisfied there was an injury in the nature of a disease process to the applicant’s right lower extremity (ankle).
The applicant suffered a further injury on 9 January 2014, when he was trying to pull back the curtains on a truck at work and developed a severe onset of back pain with radiculopathy radiating into his legs. At that consultation, the GP noted a history of back pain in the past. The applicant then was sent for an MRI on his lumbar spine which revealed a disc herniation with nerve compression. The applicant was prescribed pain killing opioid medication together with anti-inflammatories.
On balance, I had no difficulty in accepting the applicant had pre-existing lumbar pathology before he commenced employment, however, I accept that pathology was asymptomatic until it was aggravated by the nature and conditions of his employment with the applicant. As noted, the applicant’s duties were heavy and repetitive.
Although I cannot be satisfied that the main contributing factor to the onset of the pathology in the applicant’s lumbar spine was his employment, having found the employment aggravated the pathology, it is only necessary to examine the aggravation, and whether the employment was the main contributing factor to it. A long line of authorities since the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 make it clear that when examining injuries and the nature of aggravations, it is necessary to only deal with the injury which is caused by that aggravation, not by the underlying pathology itself.
In this instance, I accept the applicant as a witness of truth, and find his lumbar spine was asymptomatic until the onset of the aggravation caused by his employment.
As noted, the applicant’s evidence is uncontested. There is no suggestion that his duties were anything different to that which he described. They were heavy, repetitive, and involved placing great stress on his spine.
Although care must be taken in relying on treating medical material to disprove or discredit the claims of an injured person, in this instance, the clinical material supports the applicant’s complaints of a gradual onset of symptomology once he started working with the respondent, and indeed support a finding that the pathology which was present in his lumbar spine became symptomatic due to the aggravation caused by the nature and conditions of his employment.
That aggravation was present before the injurious event in January 2014 which is admitted.
Support for the presence of an injury in the nature of an aggravation is also found in the reports of Dr Sun, IME for the applicant.
Although, as Mr Styles noted, Dr Sun does not provide a detailed description of the applicant’s duties, he does note their broad nature including the loading and unloading of various materials from his truck, managing the side curtain, climbing up and down from the vehicle and lifting and carrying items weighing up to 30kg. That recitation is broadly consistent with the applicant’s version, and in any event, as a specialist tribunal and noting the applicant’s own accepted evidence, I have no difficulty accepting his duties as a truck driver in this type of employment were heavy and repetitive as alleged.
I prefer the views of Dr Sun to those of Dr Breit, noting the latter did not have access to the clinical records of the applicant’s GPs until late in the piece when he provided his final two reports, and even then did not seem to take into account the presence of pre-existing problems in the applicant’s spine before the injurious events to which he attributed the totality of the applicant’s impairment. Both IMEs have the benefit of a relatively consistent history from the applicant, and each acknowledges the frank injurious incidents.
The point of disagreement between the experts is whether a disease injury took place or was aggravated over time. In my view, the contemporaneous treating material supports Dr Sun’s opinion, noting as it does fairly consistent and worsening symptoms of low back pain over the years while the applicant was in the respondent’s employ, and before the specific event of January 2014 in which the applicant’s lumbar spine was impacted. I also have no difficulty accepting the incident in January 2014 aggravated this disease process.
Accordingly, there will be a referral of the applicant’s lumbar spine with a deemed date of injury of 12 August 2011 and for the frank injurious event which occurred on 9 January 2014.

Whether the applicant suffered an injury in the nature of a disease or aggravation of a disease process to his right knee as a result of the nature and conditions of his employment

In my view, the evidence in relation to the applicant’s right knee is also compelling. There is treating medical evidence of the onset of knee pain before the injurious event of 10 October 2013, such onset being consistent with repetitive loading and unloading of heavy materials and with climbing into and out of a truck on a daily basis. Although there was undoubtedly also an injurious event on 10 October 2013, in my view, the evidence is clear that the applicant suffered a right knee condition to which the nature and conditions of his employment was the main contributing factor. That injury was no doubt aggravated by the injurious event on 10 October 2013.
This being so, it will also be the subject of a referral to a Medical Assessor with both a deemed date of injury of 12 August 2011 and a frank injury date of 10 October 2013.

Whether the applicant suffered an injury in the nature of a disease process to his right ankle

There is no evidence the applicant suffered any ankle symptomology or injury before the injurious event of 10 October 2013. Despite the compendious notes attached to the Application, there is no suggestion of any ankle issue before that date. Accordingly, I am not satisfied the applicant has discharged his onus of proof in establishing the presence of an injury in the nature of a disease process or aggravation thereto concerning his right ankle. There will therefore be an award for the respondent on the claim for injury in the nature of disease process to the right ankle.

Aggregation of entitlements

The parties agree the questions in relation to aggregation of any entitlements should be determined following the issuing of any MAC. That is an entirely appropriate course of action, and any issue in relation to aggregation will therefore be deferred until the applicant has been medically assessed.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 529

7 October 2025