Gray v J C Butko Engineering - [2025] NSWPIC 370

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gray v J C Butko Engineering & Ors [2025] NSWPIC 370
APPLICANT:	Eric Gray
FIRST RESPONDENT:	J C Butko Engineering Pty Ltd
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	Duncans Holdings Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	1 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; industrial deafness claim for lump sum compensation pursuant to section 66; issue in dispute as to which respondent was the “last noisy employer” in New South Wales; first respondent asserts it employed the applicant in Victoria; third respondent agreed if the state of connection in relation to the employment of the applicant by the first respondent was not New South Wales then the third respondent was the last noisy employer in New South Wales and the matter could be referred for assessment of permanent impairment; Held – pursuant to section 9AA (3)(c) the employment of the applicant with the first respondent is not connected to the state of New South Wales; pursuant to section 9AA (1) compensation is not payable by the first respondent; award for the first and second respondents; the lump sum claim against the third respondent is remitted to the President for referral to a Medical Assessor to assess the permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 9AA (3)(c) of the Workers Compensation Act 1987 the employment of the applicant with the first respondent, JC Butko Engineering Pty Ltd, is not connected to the state of New South Wales. 2. Pursuant to s 9AA (1) of the Workers Compensation Act 1987 compensation is not payable by the first respondent. 3. Award for the first and second respondents. 4. The lump sum claim against the third respondent, Duncans Holdings Limited, is remitted to the President for referral to a Medical Assessor to assess the permanent impairment as follows: Date of injury: 20 April 2012 (deemed) Body System: hearing loss Method of assessment: whole person impairment Documents to be referred: a copy of this Certificate of Determination and Reasons; Application to Resolve a Dispute; Replies filed by the second and third respondents and attached documents; Application to Admit Late Documents dated 2 September 2024 filed by the first respondent attaching the first respondent’s reply; Application to Lodge Additional Documents dated 9 December 2024 filed by the applicant; Application to Lodge Additional Documents dated 9 January 2025 filed by the first respondent; Application to Lodge Additional Documents dated 16 January 2025 filed by the third respondent, and Application to Lodge Additional Documents dated 21 January 2025 filed by the applicant. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The Application to Resolve a Dispute (ARD) relates to a claim for lump sum compensation for industrial deafness brought by Mr Eric Gray. There are two different dates of injury pleaded. The first is 21 January 2019 (deemed) relating to the allegations against the first respondent, JC Butko Engineering Pty Ltd.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gray v J C Butko Engineering and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWPIC 370
Decision Date: 1 August 2025

CaseChat Overview and Summary

In the case of Gray v J C Butko Engineering, the applicant, Gray, sought lump sum compensation for industrial deafness under the Workers Compensation Act 1987. The dispute involved identifying which of the respondents was the "last noisy employer" in New South Wales, a determination crucial for the assessment of permanent impairment and the allocation of liability for compensation. The first respondent, J C Butko Engineering, argued that Gray was employed in Victoria, and therefore, the connection to New South Wales was severed. The third respondent conceded that if the connection to New South Wales was not established, it would be the last noisy employer in that state.

The legal issues before the court were the interpretation of sections 9AA (3)(c) and 9AA (1) of the Workers Compensation Act 1987, particularly in determining the state of connection for the purposes of compensation liability. The court needed to ascertain whether Gray's employment with the first respondent was connected to New South Wales, which would impact the liability for compensation. The court also had to consider the implications of the third respondent's concession regarding the state of connection and its effect on the assessment of permanent impairment.

The court found that pursuant to section 9AA (3)(c), Gray's employment with the first respondent was not connected to New South Wales. Consequently, under section 9AA (1), compensation was not payable by the first respondent. The court dismissed the award against the first and second respondents. Given the third respondent's concession, the lump sum claim against it was remitted to the President for referral to a Medical Assessor to assess the permanent impairment. This decision ensures that the matter is properly assessed for permanent impairment, aligning with the statutory provisions regarding the connection to New South Wales.

The final orders of the court dismissed the award against the first and second respondents, and remitted the lump sum claim against the third respondent to the President for the assessment of permanent impairment.

Orders