Opinion
No. 59614-4-I.
April 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-07059-3, Douglass A. North, J., entered February 5, 2007.
Affirmed by unpublished per curiam opinion.
Emira Resulovic, an injured worker with limited English proficiency (LEP), appeals from a superior court judgment affirming a Board of Industrial Insurance Appeals (Board) order dismissing, as untimely, Resulovic's appeals of two Department of Labor and Industries (Department) orders. Resulovic contends that the Department was required to communicate the orders to her in Bosnian, her primary language, as well as provide her with interpreter services for all discovery and all communications between her and her attorney. Resulovic also contends that the superior court erred in awarding the Department a statutory attorney fee and interest. Most of the issues raised by Resulovic were recently resolved in Ferencak v. Dep't of Labor Indus., 142 Wn. App. 713, 175 P.3d 1109 (2008), Kustura v. Dep't of Labor Indus., 142 Wn. App. 655, 175 P.3d 1117 (2008), or Mestrovac v. Dep't of Labor Indus., 142 Wn. App. 693, 176 P.3d 536 (2008). We affirm.
I
The first challenged Department order, entered on April 2, 2001, set Resulovic's rate of time loss compensation related to an industrial injury. In the second order, entered on February 20, 2004, the Department closed Resulovic's claim with a permanent partial disability award. Resulovic, through an attorney, appealed the two orders to the Board on January 19, 2005, and requested interpreter services for all communications addressed to her and her English-speaking attorney. Subsequently, the Board provided an interpreter to assist Resulovic at the Board hearing, but neither the Board nor the Department agreed to reimburse or compensate Resulovic for any other interpreter expenses she incurred after filing the appeals.
Resulovic obtained the services of an interpreter to assist her in responding to the Department's request for admissions.
Because 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), the Board accepted Resulovic's appeal subject to proof of timeliness.
Resulovic, who is literate only in Bosnian, contended that the orders were not timely communicated to her because the orders were not in her primary language.
At the hearing, Resulovic testified that over the years she has had several telephone conversations with a Department representative via an interpreter, including an hour-long conversation in 2000, for which she requested and received interpreter assistance. Janet Grigsby, a Department claims adjustor assigned to Resulovic's claim, testified that the Department has a language line available to translate oral conversations with claimants. Grigsby testified that she recalled speaking to Resulovic one time, but could not remember if the language line was used. Grigsby also testified that she remembers having spoken with Resulovic's husband in English. The Board found that at all relevant times, Bosnian was the only language in which either Resulovic or her husband was literate, and that Bosnian was the only language spoken in their home.
The Board's factual findings actually describe Resulovic's primary language as Bosnian/Serbo-Croatian. Resulovic testified that her native language in Yugoslavia was called Serbo-Croatian when she was growing up, but that it is now called Bosnian. Accordingly, we refer to her language as Bosnian.
Resulovic acknowledged at the hearing that she had previously signed several English language forms that were submitted to the Department. However, she testified that she only understood these forms after someone translated them into Bosnian. Resulovic explained that she had many Bosnian neighbors and acquaintances from the former Yugoslavia and that "there was always somebody who would help me out." The Board found that that Resulovic, prior to filing her appeals in this case, did not seek translation of the challenged orders from English to Bosnian.
Resulovic challenged this factual finding, but fails to cite to any portion of the record that indicates otherwise.
Resulovic further testified that her first understanding of the need to appeal a Department order she believed was wrong arose upon her doctor telling her that her bills had not been paid. This conversation occurred "immediately prior" to Resulovic's initial meeting with her attorney on January 18, 2005.
An Industrial Appeals Judge (IAJ) issued a proposed decision dismissing the appeals as untimely. The Board affirmed the dismissals. The Board found that the orders were directed to Resulovic at her last known address as shown by the records of the Department, that each order contained black-faced ten-point type on the same side as the decision advising Resulovic of the Department's decisions, that each order was timely communicated to Resulovic by U.S. mail in due course and only in the English language, and that Resulovic did not file a protest or appeal within sixty days of the communication of either order. The Board further found that Resulovic did not exercise necessary diligence in perfecting and prosecuting her claim for compensation. Thus, the Board concluded that no basis existed to grant Resulovic equitable relief from applicable time requirements.
With one exception, the superior court adopted the findings of the Board, affirmed the dismissal of the appeals as untimely, and awarded the Department $200 in statutory attorney fees plus interest from the date of entry of the judgment.
The superior court struck a finding by the Board that Resulovic "did not file an appeal within sixty days after the time her doctor told her that his bills had not been paid and that she had to appeal any Department order she thought was incorrect."
II
We begin our analysis with the following observations. "Under RCW 51.52.115, the Board's decision is prima facie correct and the burden of proof is on the party challenging that decision." Ferencak, 142 Wn. App. at 719 (citing Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999)). "The superior court acts in an appellate capacity, reviewing the Board's decision de novo, but 'cannot consider matters outside the record or presented for the first time on appeal.'" Ferencak, 142 Wn. App. at 719 (quoting Sepich v. Dep't of Labor Indus., 75 Wn.2d 312, 316, 450 P.2d 940 (1969)). "We review the superior court's decision de novo to determine whether substantial evidence supports its findings and whether its 'conclusions of law flow from the findings.'" Ferencak, 142 Wn. App. at 719 (quoting Ruse, 138 Wn.2d at 5). 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). Unchallenged factual findings are verities on appeal. Willoughby v. Dep't of Labor Indus., 147 Wn.2d 725, 733 n. 6, 57 P.3d 611 (2002) (citing State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).
III
Resulovic contends that the orders were not final because the Department did not, pursuant to RCW 51.52.060(1), properly "communicate" the contents of the orders sent to her because they were written in English, rather than in her primary language, thus precluding her from comprehending their import. However, the argument now advanced by Resulovic was recently decided adversely to her by this court. Kustura, 142 Wn. App. at 670 (citing Rodriguez v. Dep't of Labor Indus., 85 Wn. 2d 949, 952-53, 540 P.2d 1359 (1975)).
Resulovic next contends that Executive Order 13,166 requires federally assisted programs to communicate with LEP benefit applicants in their primary language and that, accordingly, she should prevail on this issue on that basis. We disagree.
Initially, we note that Executive Order 13,166 does not in fact require the Department to send all notices to LEP workers in their primary language. Instead, the order provides that
[e]ach Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency. Each Federal agency shall also work to ensure that recipients of Federal financial assistance (recipients) provide meaningful access to their LEP applicants and beneficiaries.
Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (August 11, 2000). We further note that the Department provides interpreters through a language line to assist in oral communications between claimants and the Department. Finally, we note that the executive order "is intended only to improve the internal management of the executive branch and 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). Because the executive order does not provide a private right of action in favor of any person as against any person, it does not bestow an enforceable right upon Resulovic.
IV
Resulovic next contends that the Department's failure to notify her by letter written in her primary language violated her right to receive due process of law. "Due process requires that the agency gave the appealing party adequate notice and an opportunity to be heard, and that procedural irregularities did not undermine the fundamental fairness of the proceedings." Kustura, 142 Wn. App. at 674 (citing Sherman v. State, 128 Wn.2d 164, 184, 905 P.2d 355 (1995)). Because due process requires such procedural protections as the particular situation demands, in analyzing this contention,
we weigh the following factors to determine what process is due in a particular situation: (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)).
As we noted in Kustura, "all workers suffering an industrial injury 'have a vested interest in disability payments upon determination of an industrial injury.'" Kustura, 142 Wn. App. at 675 (quoting Willoughby v. Dep't of Labor Indus., 147 Wn.2d 725, 733, 5 P.3d 611 (2002)). Here, as in Kustura, the Department made a determination allowing Resulovic's claim and issuing orders entitling her to compensation. Her attempt to appeal was prompted by her desire to challenge the amount of compensation awarded. She had a vested right at stake. See Kustura, 142 Wn. App. at 675.
In considering the next question, whether the Department's procedures created the risk of an erroneous deprivation of such interest, we must examine whether the notice given was "'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Kustura, 142 Wn. App. at 675-76 (quoting Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).
To satisfy requirements of due process, the Department's notices must have reasonably informed Resulovic that she should make further inquiries and not put her at risk of being wrongfully denied benefits. Kustura, 142 Wn. App. at 675. Resulovic had on multiple occasions communicated with the Department over the telephone via an interpreter provided by the Department. She also had many neighbors who spoke her primary language who helped her understand Department forms before she signed and returned them. She testified that there was always someone who could help her. Most importantly, Resulovic obtained benefits from the Department, including a permanent partial disability award. This consideration does not militate in favor of Resulovic's position.
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.
The third question was recently resolved.
[W]ere we to find a due process problem under Mathews v. Eldridge, the Department provides convincing arguments that the burden of providing complete, free interpreter services for all LEP workers would create a huge budgetary burden it is not able to withstand. In the absence of a showing that workers are significantly prejudiced by the Department's procedures, there is no due process violation.
Kustura, 142 Wn. App. at 677. Resulovic has not established that the Department procedures violated her due process rights.
V
Resulovic next contends that the IAJ's decision to provide her with interpreter services only for testimony at the hearing, but not for communications with her counsel outside of the hearing, violated chapter 2.43 RCW, public policy as expressed by that chapter, and constitutional due process and equal protection concerns. We addressed similar issues in Kustura, Ferencak, and Mestrovac, and held 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 of the Department's benefits calculation." Ferencak, 142 Wn. App. at 728 (citing Kustura, 142 Wn. App. at 679-83, 686-89). Accord Mestrovac, 142 Wn. App. at 707-08. Here, the Board properly provided an interpreter throughout Resulovic's hearing. Under these circumstances, she is not entitled to be reimbursed for interpreter expenses incurred outside of that hearing.
Citing State v. Marintorres, 93 Wn. App. 442, 969 P.2d 501 (1999), Resulovic argues for the first time in her reply 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, Resulovic's reliance upon Marintorres is unavailing.
Claim administration at the Department level is not a "legal proceeding" governed by RCW 2.43.030. Kustura, 142 Wn. App. at 679. The statute "applies only to hearings before the Board and requires the Board to appoint an interpreter to assist a non-English-speaking claimant 'throughout the hearing,'" which "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 (quoting RCW 2.43.030).
Resulovic also contends that by denying her request for interpreter services the Board violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2004), which prohibits discrimination based on national origin. 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.
The Department contends that Resulovic waived this claim for review because she failed to raise it to the Board in her petition for review on appeal. The Department is wrong. Resulovic did raise such a claim in her petition for review to the Board.
Resulovic's claim fails for several reasons. Initially, Resulovic does not explain how a worker may raise such a discrimination claim in an appeal under Title 51 RCW, rather than in an independent action. In addition, Resulovic has not established that the Department intentionally discriminated against her based on her national origin. As we recently held, "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. That decision is dispositive.
Resulovic cites to a portion of a Department bulletin that discusses whether a failure to provide interpreter services violates Title VI. However, this bulletin was not presented to the Board but, rather, was presented to us, in partial form, as an appendix to Resulovic's brief on appeal. Thus, we will not consider it. We do note, however, that the bulletin expressly states that the policy does "not apply to interpretive services for legal purposes." Interpretive Servs. Payment Policy, Provider Bulletin (Dep't of Labor Indus. Health Servs. Analysis Section, Olympia, WA), March 2005, at 2. Thus, even were we to consider it, our analysis would remain unchanged.
VI For the first time on appeal, Resulovic raises several additional arguments. First, she contends that denying her request for additional interpreter services violates both Washington's Law Against Discrimination, chapter 49.60 RCW, and her right to counsel pursuant to WAC 263-12-020 . In addition, she claims that the Board's rulings and the Department's actions impermissibly shift the costs of seeking benefits onto the injured LEP worker. Finally, she contends that the challenged orders did not constitute final orders because the Department's notice failed to comply with the black face type requirements in RCW 51.52.050. Generally, we will not consider issues raised for the first time on appeal. RAP 2.5(a). Furthermore, RCW 51.52.104 states that a petition for review of an IAJ decision shall "set forth in detail" the grounds for appeal and failure to do so results in waiver of the issue. Ferencak, 142 Wn. App. at 729; Kustura, 142 Wn. App. at 673-74 n. 22. Because Resulovic failed to properly and timely raise these issues, we will not discuss them further.
WAC 263-12-020(1)(a) discusses who may appear before the Board: "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)].
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.
VII
Even if her appeals were untimely, Resulovic contends that the appeal deadline should be waived on equitable grounds. This argument is similar to the argument made by two of the appellants in Kustura. Indeed, Resulovic cites the same authority in support of her argument as was cited by the Kustura litigants. See Kustura, 142 Wn. App. at 669-73 (discussing Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 937 P.2d 565 (1997); Rodriguez v. Dep't of Labor Indus., 85 Wn.2d 949, 540 P.2d 1359 (1975); Ames v. Dep't of Labor Indus., 176 Wash. 509, 30 P.2d 239 (1934); Fields Corp. v. Dep't of Labor Indus., 112 Wn. App. 450, 45 P.3d 1121 (2002)).
In Kustura, two workers, one from Serbia and one from Bosnia, were not fluent in English. Kustura, 142 Wn. App. at 665. Both failed to appeal their respective wage rate orders, but each did appeal other orders issued at different times. Kustura, 142 Wn. App. at 670. We held that the workers were not entitled to equitable relief absent a showing that they were incompetent, that the Department committed misconduct, or that they exercised diligence in pursuing their claims. Kustura, 142 Wn. App. at 673. We noted that "unlike the claimants in Rodriguez and Ames, both [workers] were available and competent at the time they received the Department orders. And unlike the appellants in Rodriguez and Ames, they cite no extraordinary circumstances preventing them from receiving the orders or timely challenging them." Kustura, 142 Wn. App. at 673.
The Kustura decision resolved the consolidated appeals of three workers. Our discussion herein refers to appellants Gordana Lukic and Maida Memisevic. Kustura, 142 Wn. App. at 665.
Although equitable relief is not limited to those cases involving incompetent or illiterate claimants, that in and of itself did not assist the workers in Kustura "because both were represented by counsel and/or had access to interpreters and neither adequately explained the failure to appeal the wage orders, evidencing a lack of diligence." Kustura, 142 Wn. App. at 673 n. 20 (emphasis added).
Here, Resulovic both had access to neighbors who translated Department forms for her and knew that she could request and obtain an interpreter when talking to Department representatives on the telephone. She cites no extraordinary circumstances that prevented her from receiving the orders, taking timely steps to facilitate her understanding of their import, or timely challenging the orders by filing an appeal with the Board. She has not adequately explained why she did not make further inquiries when she received the orders. The superior court did not err when it adopted the Board's findings that Resulovic did not exercise necessary diligence in perfecting and prosecuting her claim for compensation. Thus, neither the superior court nor the Board erred by concluding that she is not entitled to equitable relief.
Resulovic also cites to Rabey v. Dep't of Labor Indus., 101 Wn. App. 390, 3 P.3d 217 (2000), a case that was not discussed in Kustura. However, Rabey is not helpful to Resulovic. In Rabey, the court granted equitable relief to a widow who failed to file an application for survivor benefits within one year of her husband's death. Rabey, 101 Wn. App. at 392. The court found that the widow was shocked and disoriented by her husband's death. Rabey, 101 Wn. App. at 397. The court also noted the significance of the fact that when the widow was attempting to pick up the pieces of her life and console her children, she asked her husband's employer's human resource manager to determine if she had a legitimate claim for benefits. Rabey, 101 Wn. App. at 397. Although the manager agreed to do so, the widow never heard back from the manager. The court found that the widow reasonably believed that she had no claim. Rabey, 101 Wn. App. at 398. Unlike Resulovic, the widow did not exhibit a lack of diligence in perfecting her claim, thus precluding equitable relief. Rabey, 101 Wn. App. at 398.
VIII
Citing RCW 51.52.130, Resulovic next contends that the trial court erred in awarding the Department a statutory attorney fee and interest. We held such an award proper in Ferencak, 142 Wn. App. at 729-30. The superior court may 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. There was no error.
Affirmed.