Sarcia v Enjin Clean Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Sarcia v Enjin Clean Pty Ltd [2025] NSWPICPD 56
APPELLANT:	Charli Rose Sarcia
RESPONDENT:	Enjin Clean Pty Ltd
INSURER:	DXC Technology
FILE NUMBER:	A1-W1694/25
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	5 August 2025
ORDERS MADE ON APPEAL:	1. The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied and there is no right of appeal.
CATCHWORDS:	WORKERS COMPENSATION – The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998: application of Grimson v Integral Energy [2003] NSWWCCPD 29, Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 3, Popovic v Liverpool City Council [2017] NSWWCCPD 49
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Ms E Gorry, solicitor
Hicksons Lawyers
DECISION UNDER APPEAL:	Sarcia v Enjin Clean Pty Ltd [2025] NSWPIC 245
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	3 June 2025

INTRODUCTION AND BACKGROUND

Charli Rose Sarcia (the appellant) responded to an online advertisement for a casual position as a domestic cleaner with Enjin Clean Pty Ltd (the respondent).[1] She dealt with James Reed, a director of the respondent. Mr Reed stated that the appellant “did 5 trial cleans for me between the 11th and 16th of July 2024”.[2] The appellant stated that she thought she “did 3 or 4 jobs in total for James”. She did not remember “the order of the jobs, or the exact addresses”.[3] Mr Reed said that on 17 July 2024 the appellant attended a cleaning job at Kirrawee that he and the appellant were to perform together.[4] The appellant said that as she was opening her car boot and carrying cleaning products a bottle of oven cleaner spilled over her arm and stomach, burning her.[5] They started, but did not complete, that job. They left that site separately by car and the appellant said she attended the Caringbah Medical Centre.[6] The appellant did not work further for the respondent.
[1] Appellant’s statement 16/8/24, [18], Reply to Application to Resolve a Dispute (reply), p 12.
[2] Mr Reed’s statement 15/8/24, [8]–[9], Reply p 20.
[3] Appellant’s statement 16/8/24, [30], Reply p 13.
[4] Mr Reed’s statement 15/8/24, [63]–[64], Reply p 28.
[5] Appellant’s statement 16/8/24, [58]–[59], Reply p 16.
[6] Appellant’s statement 13/2/25, [13], Application to Resolve a Dispute (ARD), p 2.
The respondent’s insurer, DXC Technology (the insurer), issued a dispute notice dated 2 September 2024.[7] It disputed that the appellant was a ‘deemed worker’ within the meaning of Sch 1, cl 2 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It additionally disputed the appellant’s entitlement to weekly payments and to medical and related expenses.
[7] ARD, pp 16–18.
The insurer, at the appellant’s request, conducted a review and issued a ‘review outcome’ dated 17 September 2024.[8] The insurer disputed that the appellant was a worker or a deemed worker. It maintained its dispute pursuant to ss 33, 59 and 60 of the Workers Compensation Act 1987.
[8] Reply, pp 72–75.
The appellant, through her then solicitors, commenced proceedings no. W29014/24 on 21 November 2024. Her injury was alleged to have occurred on 15 July 2024 in the course of her employment when “she spilled oven cleaner on herself which caused severe burns to her stomach and hand. She also sustained a fractured rib.” Her pre-injury average weekly earnings (PIAWE) were alleged to be $500. These proceedings came before Member Wynyard for a preliminary conference on 9 December 2024. The respondent’s solicitor sought orders for the issue of directions “in respect of an undisclosed prior injury that had been identified in the clinical notes”. A Certificate of Determination, issued on 12 December 2024, recorded the appellant did not consider the documents were relevant and made remarks about the insurer. The matter was stood in the list to permit the appellant’s solicitors to take instructions. When the conference resumed the appellant was reported to be “not present” and her solicitor said the appellant could not remember the name of her prior solicitors. The appellant’s solicitor reported the appellant “had not had time to search through her emails for the identity of her prior solicitors”. The appellant’s solicitor requested an adjournment for a few days so that the appellant could ascertain the identity of the prior solicitors. The Member dismissed the proceedings on the basis that the appellant “had failed to prosecute the proceedings with due despatch”.[9]
[9] Certificate of Determination, W29014/24, 12.12.24.
The current proceedings, no. W1694/25, were commenced by way of an Application to Resolve a Dispute dated 14 February 2025. It was listed for a preliminary conference before Member Wright on 18 March 2025. The respondent’s solicitor continued to seek information regarding the prior claim. There was reference to a letter from icare to the appellant dated 10 December 2024.[10] This referred to a prior injury on 25 August 2020 and stated that the final weekly benefit paid to the appellant was for the period 20 to 26 February 2024”. It stated “[w]e finalised your WID [work injury damages] settlement in February 2024 and after your settlement payment, the claim was officially closed on 28 April 2024”. The appellant’s solicitor, at this preliminary conference, also announced that “we have done an interim PIAWE calculation. The current amount at 100 percent is $208.75.”[11] The matter was set down for hearing on 28 April 2025, “in person in the city in Sydney, 2 o’clock”.[12]
[10] Reply, p 78.
[11] Transcript 18/3/25 (T1), T1 9.13–15.
[12] T1 19.19–20.
The matter came before Member Wright for hearing on 28 April 2025. Both parties were represented by counsel. Mr Barter appeared for the appellant and Mr Gaitanis appeared for the respondent. The Member noted “Ms Garcia, of course, is present.”[13]
[13] Transcript 28/4/25 (T2), T2 1.37–8.
The appellant’s weekly claim was quantified, in her case, at $475 per week, being 95 per cent of $500 per week, based on the documents in the appellant’s wages schedule.[14] The appellant’s weekly claim was amended without objection, ultimately pleaded as being over a closed period from 15 July 2024 to 15 August 2024.[15]
[14] T2 7.3–14.
[15] T2 5.17–29.
Both counsel addressed, Mr Barter first and then Mr Gaitanis.
The Commission issued a Certificate of Determination dated 3 June 2025.[16] The Member found that on or about 17 July 2024 the appellant was a worker in the respondent’s employ, and on that date she suffered injury in the course of the employment involving a burn to the left arm and stomach. He found that the appellant had failed to discharge her onus in respect of her claim for incapacity for work from 15 July 2024 to 15 August 2024 as a result of the injury. There was an award for the respondent on the claim for weekly compensation.
[16] Sarcia v Enjin Clean Pty Ltd [2025] NSWPIC 245 (the reasons).

THE MEMBER’S REASONS

The Member’s reasons dealt with multiple areas of dispute in the case. These were identified by the Member at the hearing:
“MEMBER: … correct me if I’m wrong about these understandings, but firstly the applicant worker – the applicant, I should say, seeks to rely upon the injury as pleaded in the Application, which is described, and I might describe it more generally as a burn injury, and with a date of, date of injury of 15 July 2024. And that is a burn injury to Ms Sarcia’s stomach and left arm. The applicant, I am informed, does not rely upon a[n] injury to the rib, nor does the applicant rely upon a secondary psychological injury. Is that correct, Mr Barter?
MR BARTER: Yes, that’s correct, Member. Thank you.”[17]
[17] T2 4.2–13.
And:
“MR GAITANIS: So, Member, what is in dispute is the issue of worker, the issue of deemed worker and the issue of capacity. What is also in issue is the issue of injury.
MEMBER: All right. Thank you. Anything to be said about that, Mr Barter.
MR BARTER: No, thank you, Member.
MEMBER: Thank you.
MR BARTER: That’s what was anticipated.”[18]
And:
“MEMBER: Mr Barter, I’ve been remiss. I should actually – I’m sorry to interrupt your flow – is note that the Application has been amended in relation to the weekly compensation claim, and Mr Barter, could you just outline that closed period for me again?
MR BARTER: Yes. It’s the 15th of July 2024 to the 15th of August 2024.
MEMBER: Thank you. And that, as I understand it the respondent doesn’t object to that as it’s a reduction of the period claimed and, accordingly, the Application is amended. All right. Thank you, Mr Barter. Please proceed further.
MR BARTER: Yes. Thank you. The period claimed is based on the report of Dr Peter Mikhail dated the 23rd of December 2024, and you’ll see on page 40 of the ARD he says in paragraph 2(b).
‘Burns. Was unable to lift or carry anything more than 2 kilograms for 4 weeks after the injuries. Impairment of activities of daily living also.’
So, those are the four weeks. I’ve chosen the 15th of July to the 15th of August being probably about four weeks. And you’ll see from the evidence of the applicant contained in her statements of the 13th of February ’25 and the 16th of August ’24, that the cleaning duties that she was required to carry out would involve carrying items of greater than two kilograms in weight, namely cleaning implements and vacuum cleaners and so on. So, she was unfit for that work for that period and that’s the period claimed and that’s the evidence upon which it’s claimed.”[19]
[18] T2 4.29–5.6.
[19] T2 5.17–6.17.
The appellant succeeded on the majority of the issues. The Member found that the appellant was a ‘worker’; it was unnecessary to go to the argument about deemed worker in those circumstances. The issue of ‘deemed worker’ would also have been decided in the appellant’s favour, had that been necessary.[20] The Member found the appellant sustained a burn injury to the left arm and stomach in the course of her employment on 17 July 2024.[21] The Member dealt with incapacity for work in his reasons at [77] to [90].
[20] Reasons, [61]–[70].
[21] Reasons, [71]–[76].
The appellant described her injury as occurring on 15 July 2024, while working for the respondent. She said she had to carry heavy cleaning products to a client’s residence. One of the containers spilled chemicals onto her stomach and arms. She also described having a fractured rib due to the physical strain of carrying vacuum cleaners. The Member noted this was not relied on in the proceedings. The Member also said the appellant referred to secondary psychological injuries. She said she had been diagnosed with PTSD prior to her injury with the respondent.[22]
[22] Reasons, [21], [23]–[25].
The Member referred to the appellant’s evidence that she attended Caringbah Medical Centre on the day of the injury, about pain and burn marks on her stomach and left arm and she was prescribed medication. The Member noted “[t]hat evidence was not before me.” The Member referred to the appellant’s evidence that she consulted with Dr Mikhail, her general practitioner, on 29 July 2024. She was treated and given a certificate of capacity. She saw Dr Mikhael again on the following day and was given a certificate that included her left rib injury.
The Member noted that the certificate dated 29 July 2024 and the report dated 23 December 2024, from Dr Mikhail, constituted the only relevant medical evidence.[23] The certificate certified there was no capacity for work from 29 July 2024 to 19 August 2024. This was based on both the burns and the rib injury; the rib injury was not relied on in the current proceedings. The report dated 23 December 2024 said that due to the burn injury the appellant was unable to lift or carry anything more than two kilograms for four weeks after the injury.[24]
[23] Reasons, [26]–[27].
[24] Reasons, [77]–[79].
The Member described the business records as relevant to the issue of incapacity. He said these indicated:
“(a)    the ABN held by the applicant from at least 26 August 2020 included business names of ‘Sparkle your place’ and ‘Cleopatra and Mark Anothy’;
(b)     the business name ‘Cleopatra and Mark Anothy’ was first registered on 1 March 2024 and was current at relevant times;
(c)     the business name ‘Sparkle your place’ was first registered on 17 July 2024, and
(d)     a person of the same name and address (as listed in these proceedings) as the applicant was appointed as Director and Secretary of the company “Cleopatra Boudoir Pty Ltd” on 12 June 2024. In my view, given the applicant’s evidence, and these details, this person was the applicant.”[25]
[25] Reasons, [82].
The Member identified a number of matters about the business activities that were not satisfactorily explained. This included the nature of such activities, the registration of the name “Sparkle your place” on about the date of injury, whether any business activity was conducted during the period of the weekly claim and the nature of what appears to be a cleaning advertisement for “Sparkle your place”. The Member referred to the appellant’s argument that reliance should be placed on the certificate of capacity dated 29 July 2024. He said the respondent, on the other hand, pointed to:
(a)    The lack of contemporaneous evidence of incapacity – the appellant did not attend Dr Mikhail after the injury until 29 July 2024;
(b)    The conflict between Dr Mikhail’s report and certificate – the report referred only to lifting restrictions;
(c)    Dr Mikhail’s lack of a history of the business activities;
(d)    The record of various court and tribunal matters – there was a headnote from a decision in Sarcia v Workers Compensation Nominal Insurer[26] on 2 March 2021 in which there was an award of continuing weekly compensation. That decision was not available nor was the complete identity of the applicant confirmed, and
(e)    There were continuing notes of psychological symptoms in Dr Mikhail’s notes during the relevant period. The Member said he could not discount the possibility of incapacity resulting from psychological symptoms.
[26] [2021] NSWPIC 1.
The Member said he was unable to determine the nature of the appellant’s incapacity during the period claimed. There were differing assessments of capacity from Dr Mikhail (in her report and certificate), there was the period between the date of injury and the first post-injury medical consultation with Dr Mikhail, and there was the history of business activities. He could not determine the appellant’s skills in business activities, nor what she may have done during the claimed period of incapacity. The Member concluded the appellant had failed to discharge her onus in respect of incapacity from 15 July 2024 to 15 August 2024.
The Member said it was unnecessary to determine PIAWE. He rejected the appellant’s submission that an appropriate figure was $500. He rejected any assertion that the appellant worked 35 hours per week and this should be calculated at $45 per hour. He concluded the relevant period was one week, based on Mr Reed’s evidence of the dates of work. He said the bank statement showed two payments totalling $417.50, in his view this was “the better figure for PIAWE”. He referred to reg 8C of the Workers Compensation Regulation 2016, for “a short term worker of less that four weeks”.

THRESHOLD MATTERS

The solicitors who acted on the appellant’s behalf filed a Notice of Ceasing to Act dated 3 June 2025, the day following Member Wright’s decision. The appellant has not subsequently been represented in the proceedings. The material before me includes an ‘Appeal Against Decision of Member’, dated 4 June 2025, on which a plaint no. W1694/25 has been written in. There is a letter from the Presidential Unit of the Commission to the appellant dated 11 June 2025. That letter refers to the “bundle of documents you sent”, received on 5 June 2025. It lists the documents that comprised the bundle. The letter noted “the provided documents would not generally be accepted by the Commission as they do not satisfy Procedural Direction WC3 – Presidential appeals and questions of law”. The letter said: “given you are self-represented, the Commission will accept the documents in full support of your Appeal Application”. The Commission’s letter had attached to it a Direction dated 11 June 2025 (which set a timetable for the appeal). The appeal was registered on 5 June 2025.
There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met.
Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The Commission issued a Direction dated 16 July 2025. It noted the parties had not addressed the issue of whether the monetary threshold in s 352(3) of the 1998 Act had been met. The respondent was to make its submissions on this issue by 22 July 2025 and the appellant by 6 August 2025.

The respondent’s submissions on the monetary threshold

The respondent’s submissions on the monetary threshold were dated 22 July 2025. It referred to the decision of Grimson v Integral Energy.[27] In that decision Fleming DP said:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘… amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.” (emphasis in original)
[27] [2003] NSWWCCPD 29 (Grimson), [30].
The respondent also refers to Sheridan v Coles Supermarkets Australia Pty Ltd,[28] from which it quotes the following:
“The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. The Application to Resolve a Dispute does not identify an amount of $6000.00 for a 10% permanent impairment of the Applicant’s back as being in dispute. On any reading of the Arbitrator’s statement of reasons for decision it is clear that he was not considering any such claim.”
[28] [2003] NSWWCCPD 3 (Sheridan), [16].
The respondent notes the originally pleaded weekly claim in the current matter was from 15 July 2024 to 3 October 2024 at $475 per week, and then from 11 October 2024 at $400 per week ongoing, which would have exceeded the threshold in s 352(3). The respondent submits the claim was amended to a closed period of four weeks at $500 per week, a total of $2,000. The respondent submits this does not meet the monetary threshold.[29]
[29] Respondent’s submissions 22/7/25, [1.3]–[1.11].

The appellant’s submissions on the monetary threshold

The appellant’s submissions on the monetary threshold were dated 22 July 2025. She refers to how her claim was originally pleaded on an ongoing basis, which she submits equated to “well over $20,000 in back pay”. She submits:
“Even if the Member only dealt with a closed period at hearing, the broader claim is still unresolved and under appeal. According to Grimson v Integral Energy [2003], where no award has been made, the amount of compensation ‘at issue’ is not what the member awarded, but what was claimed in the proceedings.”

The appellant submits the appeal “meets both limbs of section 352(3)”.

Consideration of the monetary threshold issue

In NSW Department of Education and Communities v Colefax Keating P said that Grimson has been “consistently applied in the Commission”.[30] In Patrick Operations Pty Ltd v Watson O’Grady DP said of the threshold in s 352(3):
“That monetary threshold is a mandatory requirement which must be met before the Commission may hear an appeal. Whilst the Rules make provision for the granting of leave to proceed in cases where the time requirements have not been met, no such discretion has been granted to the Commission in relation to the monetary threshold requirements.”[31]
[30] [2012] NSWWCCPD 63, [24]. See also O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, Abu-Ali v Martin Brower Australia Pty Ltd [2017] NSWWCCPD 25, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32, Weate v Racing NSW [2020] NSWWCCPD 40.
[31] [2013] NSWWCCPD 18, [13], applied in Kapp v St Josephs Village Ltd [2025] NSWPICPD 33, [25].
In Popovic v Liverpool City Council Keating P dealt with a matter in which $5,000 was claimed in respect of medical expenses, but this was then amended to claim only a general order for s 60 expenses. His Honour rejected a submission that the $5,000 threshold was satisfied, saying:
“It follows that the reference to a claim for ‘$5,000’ pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.”[32]
[32] [2017] NSWWCCPD 49 (Popovic), [25]–[28].
The appellant submits that her originally pleaded continuing claim “remains in dispute and on the record”. The appeal which the appellant seeks to bring is against the decision of Member Wright dated 3 June 2025. That decision dealt with a claim for a closed period of weekly compensation of four weeks. That was the sum claimed in the proceedings, as ultimately pleaded and decided by the Member. The sum at issue was, as the respondent correctly submits, less than $5,000. The passage from Sheridan, quoted above, makes it clear that s 352(3) in the circumstances requires reference to “the amount of compensation at issue in the proceedings before the Arbitrator at first instance” (emphasis added). The “way in which the Application was run and decided” was as a claim for a closed period of four weeks of compensation. Consistent with the reasons of Keating P in Popovic, this was the sum to be referenced in considering whether the monetary threshold was satisfied. The above discussion is also consistent with the recent decision of Wood DP in Kapp v St Josephs Village Ltd,[33] with which I agree.
[33] [2025] NSWPICPD 33.

CONCLUSION

The threshold in s 352(3) of the 1998 Act is not, in the circumstances, satisfied. There is no right of appeal.

Michael Snell
DEPUTY PRESIDENT

5 August 2025

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established