Kustura v. Department
| Decision Date | 22 January 2008 |
| Docket Number | No. 57446-9-I.,No. 57447-7-I.,No. 57445-1-I.,57445-1-I.,57446-9-I.,57447-7-I. |
| Citation | 175 P.3d 1117,142 Wn. App. 655 |
| Court | Washington Court of Appeals |
| Parties | Hajrudin KUSTURA, Gordana Lukic, and Maida Memisevic, Appellants, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
Ann Pearl Owen, Ann Pearl Owen PS, Seattle, WA, Johnna Skyles Craig, Spencer Walter Daniels, Office of The Attorney General, Olympia, WA, for Appellants.
John R. Wasberg, Office of The Atty. Gen., Masako Kanazawa, Attorney at Law, Seattle, WA, for Respondent.
Johnna Skyles Craig, Office of The Attorney General, Olympia, WA, John R. Wasberg, Office of The Atty. Gen., Masako Kanazawa, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent.
Ann Pearl Owen, Ann Pearl Owen PS, Seattle, WA, for Respondent/Cross-Appellant.
Johnna Skyles Craig, Spencer Walter Daniels, Office of The Attorney General, Olympia, WA, for Respondent Intervenor.
Kelby Dahmer Fletcher, Peterson Young Putra Et Al, Seattle, WA, Michael J. Pontarolo, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, for Amicus Curiae on behalf of Washington State Trial Lawyers Assoc.
Kelly Ann Owen, Northwest Justice Project, Bellingham, WA, Katherine Frances Laner, Northwest Justice Project, Seattle, WA, Patrick Michael Pleas, Northwest Justice Project, Wenatchee, WA, for Amicus Curiae on behalf of Northwest Justice Project.
Christie Lynn Snyder, Pamela Jo Devet, Gordon Tilden Thomas & Cordell LLP, Aaron Hugh Caplan, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of ACLU.
Bryan Patrick Harnetiaux, Michael J. Pontarolo, Attorney at Law, Spokane, WA, for Amicus Curiae on behalf of Washington State Trial Lawyers Assn. Foundation.
Paula Tuckfield Olson, Burgess Fitzer PS, Tacoma, WA, for-Amicus Curiae on behalf of Washington Self-Insurers Association.
¶ 1 Three injured workers of limited English proficiency (LEP) appeal a superior court order affirming orders of the Board of Industrial Insurance Appeals (the Board). The superior court concluded: (1) two of the workers' failure to appeal orders from the Department of Labor and Industries (the Department) determining their wages for the time-loss compensation rate prevented appellate review of those wage calculations, (2) the timely-appealed Department order correctly calculated the wage rate, and (3) the workers were not entitled to additional interpreter. services for Department claim administration and Board appeals. Because the unappealed Department orders became final and binding, the timely-appealed wage rate order correctly excluded additional employer-paid benefits, and the workers fail to show that they were prejudiced by the Department's notices and the Board's interpreter procedures, we affirm.
¶ 2 Hajrudin Kustura is a Bosnian immigrant who does not understand or speak English and became an employee of Dependable Building Maintenance (DBM) in March 1999. As a union member, he was eligible for medical, life, accidental death and dismemberment insurance, and short-term disability insurance. DBM made payments of $110 per month to the union health and welfare trust fund, and the trust paid his health insurance premiums. DBM also made regular payroll deductions from wages for contributions to Social Security, Medicare, unemployment compensation, and industrial insurance.
¶ 3 On October 12, 1999, Kustura suffered a back injury while working for DBM and applied for and received benefits which the Department based on a wage rate that included DBM's contribution to his health care coverage. He timely appealed to the Board from Department orders that determined this wage rate. He argued that the rate should have included his cost of replacing health care insurance rather than the employer's contribution amount. He also asserted it should include employer contributions to life, disability, accidental death and dismemberment insurance, pension benefits, and government-mandated benefits, including Social Security, Medicare, unemployment compensation, and industrial insurance. Additionally, he requested interpreter services on appeal and reimbursement for his interpreter costs.
¶ 4 At a hearing before an Industrial Appeals Judge (IAJ), Kustura received interpreter services for his testimony, but the IAJ denied his request for an interpreter for his communications with counsel. The IAJ heard testimony that the employer paid $110 monthly for Kustura's health care benefits, but that the trust paid monthly premiums of $167.49 for health care coverage and $37.31 for dental coverage. This testimony was not interpreted.
¶ 5 The IAJ issued a proposed decision and order, affirming the Department's order and concluding that it correctly used the $110 per month figure as the value of DBM's contribution to his health care coverage. The IAJ also found that the wage calculation properly excluded the value of DBM's contributions to his dental coverage, his life, disability, accidental death and dismemberment insurance, pension benefits, and government-mandated benefits of unemployment compensation, workers' compensation, Social Security and Medicare. The IAJ further concluded that interpreter services were not necessary for the other witnesses' testimony and that the Board was not required by statute to provide interpreter services for his communications with counsel.
¶ 6 Kustura appealed the IAJ's order to the full Board, which issued a decision and order affirming the IAJ's decision that the Department used the correct amount to calculate the employer's contribution to the health benefits and properly excluded the other employer-paid benefits and contributions to government-mandated benefits.1 The Board's order did not specifically address the IAJ's order on the interpreter services issue, but stated generally that it affirmed the IAJ's rulings.
¶ 7 Gordana Lukic came to the United States from Serbia, and, like Kustura, she is not fluent in English. In 1998 she began working for the Four Seasons Olympic Hotel as a housekeeper and received employee benefits that included medical, dental, life, and long-term disability insurance. In January 2000, she injured her back while working and later developed a major depressive disorder related to the injury. She applied for and received benefits from the Department. In February 2000, the Department issued an order terminating time-loss compensation because she returned to work, but left the claim open and established a wage rate. She filed a protest and request for reconsideration of this wage rate based on Cockle v. Department of Labor & Industries,2 and the Department issued an order on March 15, 2001, calculating her wage rate to include an additional $109.36 in employer-paid, health care benefits. She did not protest or appeal this order.
¶ 8 She did appeal later Department orders that denied time-loss compensation during certain time periods and closed the claims with time-loss compensation without an award for permanent partial disability. In these appeals, she also challenged her wage-rate calculation asserting, like Kustura, that other employer-paid benefits should be included. She also requested interpreter services during the appeal hearings, including communications with her attorney.
¶ 9 During a conference with the IAJ on these appeals, Lukic asserted that she was entitled to Cockle benefits in the wage rate calculation, and the IAJ allowed her to proceed on that issue despite her failure to appeal the order that determined the rate. At some point during the appeal hearing, the IAJ recused herself and a different IAJ presided over the hearing. The new IAJ noted "a problem with the jurisdiction" on the "Cockle issue" and gave the parties time to provide argument on the Board's jurisdiction over this issue.
¶ 10 The IAJ then heard testimony about Lukic's disability status and need for further treatment. Lukic also presented testimony about the value of the employer-paid benefits she sought to include in the wage calculation. The IAJ provided interpreter services for the witnesses' testimony, but not for Lukic's communications with counsel.
¶ 11 In a proposed decision and order, the IAJ concluded that the Department orders should be reversed, finding that Lukic was a temporarily and totally disabled worker under RCW 51.32.090 and ordered the Department to pay time-loss compensation and reopen her claim for further treatment. The IAJ deemed waived her challenge to the wage rate calculation because she did not appeal the Department's March 15, 2001 order determining that rate. Neither party submitted argument or authority on the Board's jurisdiction over the issue.
¶ 12 Lukic appealed the IAJ's decision to the full Board and asked the Board to provide interpreter services for all aspects of claim administration and all phases of litigation. The Board agreed with the IAJ that it did not have jurisdiction over the wage computation issue because Lukic did not appeal the original order determining the wage rate. The Board further agreed with the IAJ that the Department's other orders should be reversed and remanded for the Department to determine that she was permanently totally disabled and pay time-loss compensation benefits accordingly.
¶ 13 On the interpreter issue, the Board concluded that it only had appellate jurisdiction and lacked authority to direct the De partment in its initial claim administration. The Board also concluded that RCW 2.43.040 does riot require interpreters at Board expense for trial preparation. "It ruled that Lukic did not demonstrate that the Board's failure to provide and pay for these additional services violated her due process rights or deprived her of equal protection of the law. The Board further concluded that it was within the IAJ's discretion to provide interpreter services only while in open court and not for Lukic's communications with her attorney.
¶ 14 Maida Memisevic is also a Bosnian immigrant...
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