Ferencak v. Department

• Decision Date: 22 January 2008
• Docket Number: No. 58878-8-I.,58878-8-I.
• Citation: 142 Wn. App. 713,175 P.3d 1109
• Court: Washington Court of Appeals
• Parties: Ivan FERENĆAK, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES and Board of Industrial Insurance Appeals, Respondent.

175 P.3d 1109

142 Wn. App. 713

Ivan FERENĆAK, Appellant, v. DEPARTMENT OF LABOR & INDUSTRIES and Board of Industrial Insurance Appeals, Respondent.

No. 58878-8-I.

Court of Appeals of Washington, Division 1.

January 22, 2008.

Ann Pearl Owen PS, Seattle, WA, for Appellant.

Masako Kanazawa, Attorney at Law, Seattle, WA, for Respondent.

Johnna Skyles Craig, Spencer Walter Daniels, Office of The Attorney General, Olympia, WA, for Respondent Intervenor.

AGID, J.

¶ 1 Ivan Ferenćak, an injured worker with limited English proficiency (LEP), appeals a superior court order granting the Board of Industrial Insurance Appeals (Board) leave to intervene and the court's judgment affirming the Board's decision affirming the decisions of the Department of Labor and Industries (Department). Ferenćak challenges the Board's wage calculation, its ruling denying his request for interpreter services for his communications with counsel, and various procedural decisions. But neither the law nor the facts support his wage calculation. And, as we held in Kustura v. Department of Labor & Industries, non-indigent LEP claimants are not entitled to free interpreter services for communications with counsel outside of legal proceedings.¹ We therefore affirm the trial court and the Board. Finally, the trial court's intervention order was proper.

FACTS

¶ 2 Ferenćak is an LEP Bosnian immigrant. On March 20, 2002, he injured his right knee in the course of his employment at Travis Industries, Inc. (Travis). He applied for and the Department allowed a claim for worker's compensation benefits. The Department calculated his total gross wage as $2,199 per month, based solely on his hourly wage of $11.50 per hour for a 40 hour week and health care benefits of $175 per month. Ferenćak appealed this determination and other Department orders paying or adjusting his benefits based on this wage determination.

¶ 3 In his notices of appeal to the Board, in addition to challenging the wage determination, Ferenćak argued that chapter 2.42 RCW, chapter 2.43 RCW, and due process entitled him to interpreter services provided by the Department or the Board for all necessary communications relating to his receipt of benefits, including those with his lawyer and treating physicians. Citing the same authority, he, also asked the Industrial Appeals Judge (IAJ) to provide him with an interpreter for all hearings and communications with his attorney. The IAJ granted this request for interpreter services at hearings, but not for depositions or confidential communications between Ferenćak and his attorney.

¶ 4 After a hearing, the IAJ issued a proposed decision and order apparently affirming the Department's wage determinations, but using different values in the wage calculation reflected in the findings of fact. The IAJ valued Ferenćak's health benefits at $197.15. The IAJ also concluded that Ferenćak was not entitled to Board-provided interpreter services for communications with his attorney and that the wage calculation properly excluded "employer-paid contributions to social security, Medicare, life and/or disability insurance policies, 401(K) or Money Purchase Pension plans, or . . . industrial insurance and unemployment compensation coverage."

¶5 Ferenćak petitioned for review by the Board, challenging the wage determinations, denial of interpreter services for communications with his attorney, and failure to enforce subpoenas designed to obtain evidence showing his overtime pay, rate of pay, and year end bonus payments. The Board affirmed both the Department's original wage calculation and the IAJ's proposed decision and order, including the IAJ's finding of fact related to health care benefit costs that conflicted with the Department's original calculation. The Board also concluded that Ferenćak was not entitled to have the Board pay for interpreter services for communications with his attorney and declined to address his claim for denial of translation services at the Department level because there was no written denial of those services in the record.²

¶ 6 Ferenćak appealed the Board's decision to the superior court, seeking not only reversal and remand but also reimbursement for interpreter fees from the Board or Department. The Board moved for intervention of right or permissive intervention in the alternative. The court granted the Board's motion to intervene,³ affirmed the Board's decision, and awarded the Department $200 in statutory attorney fees. Ferenćak appeals.

DISCUSSION

¶ 7 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.⁴ 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."⁵ 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.'"⁶ Substantial evidence is "sufficient to persuade a fair-minded, rational person of the truth of the matter."⁷ "Unchallenged facts are verities on appeal."⁸

I. Intervention

¶ 8 We will reverse an intervention of right only if the trial court committed an error of law.⁹ We review a decision granting permissive intervention for an abuse of' discretion.¹⁰ Although the superior court did not disclose its basis for granting intervention, we must affirm if either kind of intervention was appropriate. To grant intervention of right under CR 24(a) the intervenor must satisfy four criteria: (1) the application is timely; (2) the applicant claims an interest that is the subject of the action; (3) the disposition will likely adversely affect the applicant's ability to Protect the interest; and (4) the applicant's interest is not adequately protected by the existing parties.¹¹ For permissive intervention under CR 24(b) the application need only be timely and present a common question of law or fact with the main action, though the court will also consider whether the intervention would unduly delay or prejudice the rights of the original parties.¹²

¶ 9 Here, contrary to Ferenćak's assertions, the Board's motion to intervene was timely. Because the notice of appeal did not name the Board as a party, there was no way for the Board to know that Ferenćak was seeking a judgment against it for reimbursement of interpreter fees until the Department informed it of this fact after reading Ferenćak's trial brief. The Board moved for intervention within three days after it learned that Ferenćak had essentially made the Board a party to his appeal. The Board's interest in not paying a judgment for reimbursement of interpreter fees is obvious. And, while not the only issue on appeal, the extent to which the Board must provide interpreter services to LEP claimants was the central claim. What is less clear on this record is why the Board's interest would not be adequately protected by the Department. But, while this failing may mean that the Board was not entitled to intervention of right, nothing suggests that the superior court abused its discretion by allowing, permissive intervention.¹³

¶ 10 Ferenćak's argument against intervention relies on the holding in Kaiser Aluminum & Chemical Corp. v. Department of Labor & Industries that the Board generally cannot appeal adverse superior court decisions because it is a quasi-judicial agency.¹⁴ But Kaiser is distinguishable. There, the Board sought to appeal a superior court decision reversing its earlier ruling.¹⁵ Here, the Board did not appeal the superior court decision; it merely sought to intervene in a proceeding that might have adverse legal and financial implications. Further, Kaiser does not stand for the principal that the Board can never appeal a decision by the superior court. In fact, the court in Kaiser explained that one exception to the general rule against allowing a Board appeal is that quasi-judicial agencies may appeal decisions about their own procedures. ¹⁶ Here, the Board sought to intervene in an appeal challenging its internal procedures; that is, whether it must provide free interpreter services to all LEP benefits claimants both for legal proceedings and for confidential communications with counsel. Kaiser does not support Ferenćak's arguments against Board intervention.

¶ 11 City of Milford v. Local 1566,¹⁷ a Connecticut Supreme Court case cited in Kaiser for the proposition that an appeal by a quasi judicial body concerning its own procedures is proper,¹⁸ supports the superior court's decision to allow intervention. There, the court upheld a lower court's decision allowing intervention by the Board of Mediation and Arbitration in an action to determine whether its arbitrators must take an oath before arbitrating every dispute, reasoning that the board's "significant interest" in protecting the validity of its procedures justified' intervention.¹⁹ Here, the issue of whether the Board must provide free interpreter services to all LEP claimants is similarly procedural and potentially has significant budgetary impacts. The Board has a similar interest in seeing that the issue is resolved in its favor. We hold that the superior court did not err by allowing the Board to intervene.

II. Wage Calculation

A. Health Care Benefits

¶ 12 Under RCW 51.08.178(1) wage calculation for time-loss benefits includes the value of employer-paid health care premiums.²⁰ Ferenćak argues that the Board undervalued his health care benefits because it erroneously found his employer paid $175 monthly even though a human resources manager testified that benefit payments were $202.84 per month. This is a misstatement of the record. The Board actually found the employer paid $197.15 monthly for health care coverage. To support his contention that the Board undervalued his benefits, Ferenćak points to testimony from Travis' human resources manager where he...