Resulovic v. Department of Labor and Industries, No. 59614-4-I (Wash. App. 4/21/2008)
| Decision Date | 21 April 2008 |
| Docket Number | No. 59614-4-I.,59614-4-I. |
| Court | Washington Court of Appeals |
| Parties | EMIRA RESULOVIC, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. |
Appeal from King County Superior Court. Docket No: 06-2-07059-3. Judgment or order under review. Date filed: 02/05/2007. Judge signing: Honorable Douglass A North.
Counsel for Appellant(s), Ann Pearl Owen, Ann Pearl Owen PS, 2407 14th Ave S, Seattle, WA, 98144-5014.
Counsel for Respondent(s), Masako Kanazawa, Attorney at Law, 800 5th Ave Ste 2000, Seattle, WA, 98104-3188.
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.
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.1
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.2
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.3
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,4 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.
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." R&G 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)).
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.
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 (cit...
To continue reading
Request your trial