Opinion
No. 60139-3-I.
April 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-17514-0, Laura C. Inveen, J., entered May 14, 2007.
Affirmed by unpublished per curiam opinion.
Ferid Maši an injured worker with limited English proficiency (LEP), appeals a superior court order affirming the Board of Industrial Insurance Appeals (Board) order dismissing his appeal of the Department of Labor and Industries (Department) denial of his claim for workers' compensation benefits. The Board dismissed Maši's appeal on the basis that it was not timely filed and that he was not entitled to equitable relief from the applicable time limitations. The superior court further ruled that neither the Department nor the Board violated any of Maši's statutory, due process, or equal protection rights under the United States or Washington State constitutions regarding the provision of interpreter services. Ferencak v. Dep't of Labor Indus., 142 Wn. App. 713, 175 P.3d 1109 (2008), Mestrovac v. Dep't of Labor Indus., 142 Wn. App. 693, 176 P.3d 536 (2008), and Kustura v. Dep't of Labor Indus., 142 Wn. App. 655, 175 P.3d 1117 (2008), are dispositive on the majority of the issues raised by Maši. The remaining errors claimed are supported by neither the facts nor the law. Further, the facts in Maši's claim do not warrant the application of equitable relief for his failure to timely file his appeal. Accordingly, we affirm.
I
Maši is a Bosnian immigrant. On June 19, 2003, he injured his arm and leg while using a power tool during the course of his employment with Seattle Concrete Design (SCD). Maši filed a claim for workers' compensation benefits with the Department, which denied his claim on the basis that it was unable to substantiate an employer-employee relationship at the time of the alleged injury. Maši filed a protest of that order on May 8, 2004. He also advised the Department in his protest letter that he was utilizing the services of a Bosnian interpreter, and that he was not fluent in English. On September 28, 2004, the Department mailed to Maši an order affirming its denial of his claim.
Maši retained counsel, and his counsel's notice of representation was filed with the Department on October 28, 2004. Through his attorney, Maši appealed the order to the Board on December 6, 2004 — more than 60 days following its issuance.
Maši alleged that chapter 2.42 RCW, chapter 2.43 RCW, and due process entitled him to free interpreter services for all necessary communications relating to his request for benefits and dealings with the Department. Maši also argued that the same authority required the Board to provide him with an interpreter for all hearings, as well as all communications with his attorney outside of legal proceedings in preparation for hearings, and in response to discovery requests and motions. The Industrial Appeals Judge (IAJ) granted Maši's request for interpreter services at hearings, but not for conferring with counsel during the proceeding, or for hearing preparation and response to motions and discovery requests. The IAJ issued a proposed decision and order holding that the notice of appeal was not timely filed and, as such, the Board did not have jurisdiction over the subject matter of the appeal. The IAJ did not specifically address the issue of interpreter services raised by Maši in his appeal, as the finding as to the untimeliness of the appeal was dispositive. Maši filed a petition for review to the three-member Board, which was denied.
Maši subsequently appealed the Board order to the King County Superior Court. Maši reiterated his prior arguments that he was entitled to interpreter services provided by the Department for all necessary communications relating to his receipt of benefits before the Department. In addition, he argued that Executive Order 13,166 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2004), further supported the right to free interpreter services. Maši argued that the same authority had required the Board to provide him with an interpreter for all hearings, as well as all communications with his attorney outside of any legal proceeding in preparation for hearings and in response to discovery requests and motions. The superior court affirmed the conclusions of law of the Board's decision and order, and further ruled that neither the Department nor the Board violated any of Maši's statutory, due process, or equal protection rights. Lastly, the court held that Ma Šic was not entitled to equitable relief from the requirements of RCW 51.52.060(1) that an appeal be filed within 60 days of the date the order is communicated to the worker, and awarded attorney fees to the Department. MaŠic appeals.
II
On appeal, the Board's decision is viewed as being prima facie correct and the burden of proof is on the party challenging that decision. RCW 51.52.115; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). The superior court reviews decisions of the Board de novo, but "cannot consider matters outside the record or presented for the first time on appeal." Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 316, 450 P.2d 940 (1969). We review the findings of the superior court's decision de novo to determine whether "substantial evidence" supports them, and whether its "'conclusions of law flow from the findings.'" Ruse, 138 Wn.2d at 5 (quoting Young v. Dep't of Labor Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)). Substantial evidence is "evidence sufficient to persuade a fair-minded, rational person of the truth of the matter." RG Probst v. Dep't of Labor Indus., 121 Wn. App. 288, 293, 88 P.3d 413 (2004).
Maši alleges that the IAJ's decision to provide him with interpreter services only during the proceeding before the Board, and not for communications with counsel outside of the hearing, violated chapter 2.43 RCW, constitutional due process, and equal protection. He further alleges that he is entitled to interpreter services in his native language as well as communication of Department orders or interpretation thereof in his native language. We addressed these issues in Kustura, Mestrovac and Ferencak, holding that "neither chapter 2.43 RCW nor constitutional due process or equal protection considerations entitle nonindigent LEP injured workers to free interpreter services for communications with counsel outside of legal proceedings for which an interpreter has already been appointed during an appeal." Ferencak, 142 Wn. App at 728 (citing Kustura, 142 Wn. App. at 679-83, 686-89). Accord Mestrovac, 142 Wn. App. at 707-08. Thus, we find no error in the IAJ's decision concerning Maši's identical claims for interpreter services outside of the proceeding. Further, Department action and claim administration are not "legal proceedings" for which interpreter services are authorized pursuant to RCW 2.43.030. Kustura, 142 Wn. App. at 679. The remaining issues, therefore, are whether, based on the facts in Mšic's case, he is entitled to equitable relief from the time bar on his appeal, whether due process requirements were met, and whether the additional authority cited by Maši requires the Department and the Board to provide free interpreter services.
III
A Department order or judgment based on findings of fact becomes a complete and final adjudication binding upon both the claimant and the Department unless it is set aside on appeal or vacated. Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 538, 886 P.2d 189 (1994). "The failure to appeal an order, even one containing a clear error of law, turns the order into a final adjudication, precluding any reargument of the same claim." Marley, 125 Wn.2d at 538. A person aggrieved by a Department order must file a notice of appeal to the Board "within sixty days from the day on which a copy of the order, decision, or award was communicated to such person." RCW 51.52.060(1). Maši contends that the order affirming the denial of his claim was not "communicated" to him within the meaning of RCW 51.52.060(1) because it was written in English, rather than in his native language of Bosnian. The Washington Supreme Court has held that "communicated" as used in this statute requires only that the worker received the order, not that he or she understood it. Rodriguez v. Dep't of Labor Indus., 85 Wn.2d 949, 952-53, 540 P.2d 1359 (1975). Maši contends that the court's decision of this issue in Rodriguez is dicta, and that, because of equitable concerns, the court's decision to equate delivery with communication should not apply to cases in which there is a language barrier. But Maši misstates the court's holding. The court's evaluation of whether there was communication of a Department order is distinct, and precursory, to its analysis of whether equitable relief should be granted to excuse a claimant from the statutory time bar once the court has found that the order was communicated. The granting of equitable relief does not equate to a determination that there was a lack of communication; rather, it relieves a claimant from the time limit for filing an appeal which begins to run after communication of the order is accomplished.
In this case, the record reveals that the Department mailed the order on September 28, 2004, and that Maši filed his appeal on December 6, 2004. Once mailing of an item is established, a presumption of receipt by the person to whom it is addressed is created. Scheeler v. Empl. Sec. Dep't, 122 Wn. App. 484, 489, 93 P.3d 965 (2004). Maši attempted to rebut the presumption of receipt with testimony that, due to an error in mailing, he did not receive the order until October 9, 2004. The IAJ initially held that the appeal was timely, but on the basis of additional evidence, found Maši's testimony lacking veracity and ultimately reversed the decision set forth in the interlocutory order. Maši contends that the IAJ's reversal of the interlocutory decision on jurisdiction was improperly premised upon impeachment on a collateral matter. This argument is unconvincing. Pursuant to RCW 51.52.102, the Board may continue hearings on its own motion to secure additional evidence that, in its opinion, is deemed necessary to decide the appeal fairly and equitably. If such evidence is admitted, all parties are to be given a full opportunity for cross-examination and to present rebuttal evidence. RCW 51.52.102.
Maši assigned error in his appeal to the Board order and to all of the Board's rulings, thus encompassing the IAJ's determination that the opportunity for rebuttal to the declarations was sufficient. Maši did not, however, present any argument in his opening brief that his opportunity for rebuttal or cross-examination of the declarants was insufficient, and thus any error in that regard is waived. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Moreover, Maši was given a full opportunity to, and did, submit equivalent rebuttal evidence and argument concerning the evidence. As such, the IAJ did not err in exercising his discretion pursuant to RCW 51.52.102 and WAC 263-12-120 in securing or admitting the additional evidence, or in allowing such rebuttal evidence and cross-examination of witnesses as was deemed appropriate in his discretion.
WAC 263-12-120 provides that an IAJ may, when all parties have rested, receive and present additional evidence as deemed necessary to decide the appeal fairly and equitably. Any such evidence is received subject to "full opportunity for cross-examination by all parties. If a party desires to present rebuttal evidence to any evidence so presented by the industrial appeals judge, the party shall make application immediately following the conclusion of such evidence." WAC 263-12-120 .
Maši additionally contends that the interpreter services provided at the Board were inadequate, and that poor translation resulted in the IAJ being informed that Maši said his mother had "died" on October 9, 2004, when, in fact, he indicated that she was "dying." The IAJ rejected this contention, noting that the additional evidence he received indicated Maši's mother had only been ill, and that her illness did not occur during the time period in question. More importantly, the IAJ specifically asked Maši's counsel whether she had any objection to the use of the interpreter at the hearing, and she indicated that she had no further comment beyond her previously filed pleadings. The IAJ's questioning of counsel was a clear attempt to induce counsel to raise any further issues in need of resolution. By declining to raise the issue when questioned by the IAJ, any argument on appeal from the IAJ's ruling was waived. Moreover, MaŠic did not actually argue the issue in his petition for review, and did not raise it in his appeal to the superior court. Because no objection was made at the Board, or raised in the petition for review, the issue of adequacy of the interpreter services was waived on this basis also.
Maši next contends that even if we find he failed to comply with the 60-day appeal time limit, he should be granted equitable relief from strict compliance with the appeal time bar. Such relief has been granted where the claimant is incompetent or illiterate. See Rodriguez, 85 Wn. 2d at 955. We recognize that such relief may not be limited only to those cases involving incompetent or illiterate claimants. Kustura, 142 Wn. App. at 673 (citing Fields Co. v. Dep't of Labor Indus., 112 Wn. App. 450, 459, 45 P.3d 1121 (2002)). But "[e]quity aids the vigilant, not those who slumber on their rights." Leschner v. Dep't of Labor Indus., 27 Wn.2d 911, 927, 185 P.2d 113 (1947). Thus, when the claimant fails to act diligently in pursuing the claim, we will not grant equitable relief. Kustura, 142 Wn. App. at 672 (citing Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 176-77, 937 P.2d 565 (1997)).
Here, Maši was available, mentally competent, and literate at the time he received the Department order. The preponderance of evidence before the IAJ did not support a finding that there were extraordinary circumstances preventing Maši from receiving the order, or filing a timely appeal. Maši had demonstrated access to interpreter services, had filed a protest to the original order denying his claim, and was thus familiar with the process. Maši was represented by counsel for over half of the 60-day time period during which an appeal could have been filed. The Board did not err by finding that Maši was not entitled to equitable relief from the 60-day requirement.
Maši has also argued that the Department order failed to comply with the black faced type requirements of RCW 51.52.050, and thus the order did not meet the communication requirement. However, Maši did not raise this argument in his petition for review to the Board. Thus, the claim of error is waived. RCW 51.52.104; RAP 2.5(a).
RCW 51.52.050 provides that a copy of a final Department decision must be sent to the worker and
shall bear on the same side of the same page on which is found the amount of the award, a statement, set in black faced type of at least ten point body or size, that such final order, decision, or award shall become final within sixty days from the date the order is communicated to the parties unless a written request for reconsideration is filed with the department of labor and industries, Olympia, or an appeal is filed with the board of industrial insurance appeals, Olympia.
IV
Due process requires that the Department give Maši adequate notice and an opportunity to be heard, and that procedural irregularities not undermine the fundamental fairness of the proceeding. Kustura, 142 Wn. App. at 674 (citing Sherman v. State, 128 Wn.2d 164, 184, 905 P.2d 355 (1995)). Maši contends that the Department violated due process requirements by failing to send him the order denying his claim to him in his native language of Bosnian.
Our determination of what process is required in a particular situation involves analysis of the following factors:
(1) the private interest at stake in the governmental action;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government interest, including the additional burdens that added procedural safeguards would entail.
Kustura, 142 Wn. App. at 674 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
Where notice is provided in English to a non-English speaker, such notice does not violate due process requirements if it would put a reasonable recipient on notice that further inquiry is required. Kustura, 142 Wn. App. 676 (quoting Nazarova v. I.N.S., 171 F.3d 478, 483 (7th Cir. 1999)). In this case, the Department notice reasonably informed Maši that he should make further inquiries concerning its contents and meaning. Maši had filed a protest to a prior order, and thus had knowledge of the process. Shortly after the issuance of the order in question here, Maši had obtained counsel. Maši had previously used an interpreter, including for the filing of his claim. As in Kustura, Maši has not shown that the procedures used by the Department caused a risk of erroneous denial of benefits.
While we recognize that Kustura has not foreclosed the possibility of establishing a due process violation, we note that existing Department procedures allow workers to seek relief from appeal deadlines based on equitable considerations. See Kustura, 142 Wn. App. at 673 n. 20. The existence of this potential remedy is now part of the Department's "procedures." Given the availability of this remedy as a possibility, it is difficult to envision the circumstances that would constitute a due process violation.
Maši also contends that the Department's and Board's denial of his request for additional interpreter services (1) violates Washington's Law Against Discrimination, chapter 49.60 RCW; (2) violates WAC 263-12-020 ; and (3) impermissibly shifts the costs of seeking benefits onto the injured LEP worker. However, RCW 51.52.104 states that a petition for review of an IAJ decision shall "set forth in detail" the grounds for such review and failure to do so results in waiver of the issue. Because Maši failed to raise these issues in his petition, we decline to consider them on appeal.
WAC 263-12-020(1)(a) provides for injured workers' right to be represented by counsel in Board proceedings: "Any party to any appeal may appear before the board at any conference or hearing held in such appeal, either on the party's own behalf or by an attorney at law or other authorized lay representative of the party's choosing as prescribed by [WAC 263-12-020(3)]."
Maši next cites Executive Order 13,166 as authority for his allegation that he is entitled to interpreter services both during Department claim adjudication and in all communications relative to his appeal to the Board. MaŠic's reliance on Executive Order 13,166 is misplaced. That order requires federal agencies to examine the services they provide, and implement a system by which the LEP person can meaningfully access those services, without unduly burdening the agency. Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (August 11, 2000). The Department and the Board have taken substantial steps, including the provision of interpreter services and assistance to claimants as noted by both parties in briefing, to comply with the order. Moreover, the order "does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers or employees, or any person." Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (August 16, 2000). Thus, Maši has no private right of action enforceable against any person on the basis of Executive Order No. 13,166.
Maši next claims that the Department's actions discriminated against him based on his national origin, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2004). Section 601 of Title VI prohibits recipients of federal financial assistance from discriminating based on race, color, or national origin. Alexander v. Sandoval, 532 U.S. 275, 278, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). While there is a private right of action to enforce Section 601 of Title VI in circumstances of intentional discrimination, there is no private Title VI right of action with regard to disparate-impact claims. Alexander, 532 U.S. at 279, 293. Maši has offered no evidence whatsoever to prove that the Department intentionally discriminated against him on the basis of his national origin. Moreover, in Kustura, we held that "the Department's procedures have not singled out these and other Bosnian workers as one particular language group and denied them benefits on that basis. As such, they did not create a suspect class based on national origin." Kustura, 142 Wn. App. at 687. The facts of this case do not require a different result.
Citing State v. Marintorres, 93 Wn. App. 442, 969 P.2d 501 (1999), Maši argues for the first time in his brief that there is no rational basis for treating LEP claimants differently from hearing-impaired claimants, who are provided free interpreter services. However, hearing-impaired claimants are distinctly different from LEP claimants. A hearing impairment is a physical disability. Being limited in English proficiency is not. Moreover, Marintorres involved interpreter costs for defendants in criminal cases. "In this state, the right of a defendant in a criminal case to have an interpreter is based upon the Sixth Amendment constitutional right to confront witnesses and 'the right inherent in a fair trial to be present at one's own trial.'" State v. Gonzales-Morales, 138 Wn.2d 374, 379, 979 P.2d 826 (1999) (quoting State v. Woo Won Choi, 55 Wn. App. 895, 901, 781 P.2d 505 (1989)). Given that the Sixth Amendment does not apply to civil actions, Maši's reliance upon Marintorres is unavailing.
V
Maši next contends that the "legal proceeding" before the Board includes discovery and pretrial motions, and thus free interpreter services were required during those portions of this litigation. In Kustura, we held that RCW 2.43.030 requires the Board to appoint an interpreter to assist a non-English-speaking claimant "'throughout the hearing.'" Kustura, 142 Wn. App. at 680 (quoting RCW 2.43.030). "This includes all communications during the hearing, but the statute does not include matters beyond the hearing itself, including communications with counsel outside of the hearing and other trial preparation." Kustura, 142 Wn. App. at 680 n. 47. That decision is dispositive.
VI
Finally, Maši contends the trial court erred in awarding the Department attorney fees and interest. His arguments are indistinguishable from those we rejected in Ferencak. The superior court has discretion to award $200 in statutory attorney fees to the prevailing party under RCW 4.84.030 and RCW 4.84.080. Ferencak, 142 Wn. App. at 730. Accordingly, the trial court may impose interest pursuant to RCW 4.56.110.