Tapia-Reyes v. Excel Corp.
| Decision Date | 21 January 2011 |
| Docket Number | No. S-10-474.,S-10-474. |
| Citation | 281 Neb. 15,793 N.W.2d 319 |
| Parties | Jesus TAPIA-REYES, appellee, v. EXCEL CORPORATION, appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. In determining whether to affirm. modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the finding of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.
2. Workers' Compensation: Appeal and Error. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.
3. Workers' Compensation: Evidence: Appeal and Error. The workers' compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law.
4. Workers' Compensation: Appeal and Error. Appeals from a workers' compensation trial court to a review panel are controlled by the statutory provisions found in the Nebraska Workers' Compensation Act.
5. Workers' Compensation. The Nebraska Workers' Compensation Act is construed liberally to carry out its spirit and beneficent purposes.
6. Principal and Agent: Words and Phrases. Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subjectto his control, and the consent of the other to so act.
7. Constitutional Law: Witnesses: Interpreters: Public Policy. It is the public policy of this state that the constitutional rights of persons unable to communicate the English language cannot be fully protected unless interpreters are available to assist such persons.
8. Constitutional Law: Witnesses: Interpreters. While a word-for-word translation best ensures that the quality of the translation does not fall below the constitutionally permissible threshold, there is no constitutional right to a flawless interpretation.
9. Rules of the Supreme Court: Interpreters: Appeal and Error. The failure to strictly adhere to the Nebraska Code of Professional Responsibility for Interpreters does not of itself create reversible error in an appeal from judicial proceedings.
10. Judges: Evidence: Presumptions. It is presumed that judges disregard evidence which should not have been admitted.
11. Trial: Witnesses: Interpreters. Matters concerning interpreters' conduct during judicial proceedings are left to the sound discretion of the court.
James D. Hamilton and Amanda A. Dutton, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.
Jesus Tapia-Reyes, pro se.
Jesus Tapia-Reyes suffered a permanent injury to his back while working as a loader for Excel Corporation (Excel). After 8 years of working in a different position offered by Excel to accommodate his physical restrictions, Tapia-Reyes was fired for an alleged act of sexual harassment of a coworker. After that, he filed his workers' compensation claim, which had been tolled by Excel's voluntary medical and partial disability payments. At the hearing before a single judge of the Nebraska Workers' Compensation Court, Tapia-Reyes and the alleged victim of the harassment testified with the assistanceof an interpreter. The single judge awarded a 30-percent permanent impairment, but denied vocational rehabilitation based on its finding that Tapia-Reyes was fired for cause. Tapia-Reyes appealed to the review panel. He alleged several errors, including that the interpreter had inappropriately commented on the testimony. The review panel agreed, and reversed and remanded for a hearing before a new judge. The panel did not address Tapia-Reyes' other assignments of error. Excel appeals and asks that we affirm the award of the single judge. Excel asserts that any interpreter error was harmless, because the reason for Tapia-Reyes' discharge is irrelevant to the question of entitlement to vocational rehabilitation. Excel also argues that this alleged error and others were not properly before the review panel, because it lacked authority to consolidate separate but timely filed applications for review by Tapia-Reyes' attorney and by Tapia-Reyes, pro se. We hold that the review panel erred in reversing on the issue of the interpreter, and we reverse the order of reversal on review and remand the cause to the review panel for consideration of the remaining errors presented in Tapia-Reyes' consolidated application for review.
In September 1999, Tapia-Reyes was hired by Excel to work on the "kill floor"as a loader. Prior to this, Tapia-Reyes worked several other jobs involving medium to heavy physical activity which did not require that he be proficient in English. He is 42 years old, and his education is limited to five grades of primary school. He suffers from epilepsy and, because of a seizure-related traffic incident, is currently unable to obtain a driver's license.
On April 13, 2000, Tapia-Reyes injured his lower back while working at Excel, lifting and twisting with boxes of meat product. A functional capacity examination conducted in 2002 recommended that Tapia-Reyes work under permanent work restrictions within a light to medium demand level. The compensation court appointed a vocational rehabilitation consultant who performed a loss of earning power evaluation and determined Tapia-Reyes had a 20-percent permanent loss.Tapia-Reyes obtained a rebuttal evaluation assigning a 40- to 45-percent loss. Excel voluntarily paid Tapia-Reyes' continuing medical expenses and placed him in the liver packaging and labeling department, a job within his physical restrictions. Excel also voluntarily paid Tapia-Reyes compensation based upon the 20-percent loss of earning power found by the court-appointed consultant. Tapia-Reyes did not pursue a workers' compensation award at that time. In August 2008, Tapia-Reyes was fired for the alleged sexual harassment of a female coworker.
On August 25, 2008, Tapia-Reyes, through his attorney, filed a petition before a single judge of the compensation court. The petition sought continuing reimbursement of medical bills, a determination of permanent partial disability benefits, and vocational rehabilitation.
On November 21, 2008, the single judge granted Tapia-Reyes' application for appointment of a new vocational rehabilitation consultant to redetermine Tapia-Reyes' loss of earning capacity and create a vocational rehabilitation plan. The newly appointed consultant evaluated Tapia-Reyes' loss of earning capacity at 30 percent, noting that the previous loss of earning capacity report had improperly utilized Tapia-Reyes' hourly wage rather than his average weekly wage. A new rebuttal evaluation assigned a 40- to 45-percent loss of earning capacity.
The court-appointed consultant's report also indicated that Tapia-Reyes had been actively seeking employment since August 2008 and had been unable to obtain any interviews. It was the consultant's conclusion that Tapia-Reyes lacked the English reading and writing skills needed to independently complete a job application and which would also be needed to work many jobs otherwise suitable to his physical restrictions and lack of ability to drive. The consultant set forth a 6-month plan designed to improve Tapia-Reyes' English skills. Excel objected to the plan on the grounds that Excel had continued to accommodate Tapia-Reyes and that Tapia-Reyes had lost his employment for reasons unrelated to his injury.
The hearing before the single judge was held on May 4, 2009. The principal issue at the hearing was whether Tapia-Reyes' employment was terminated for cause. Tapia-Reyes testified with the aid of an interpreter, who clarified that he was registered, but not certified. Tapia-Reyes did not object to the interpreter's qualifications.
Tapia-Reyes testified that he was fired based on Excel's belief that he had inappropriately touched a female coworker. But he denied that he had done anything wrong and explained that he had unintentionallytouched his coworker during an epileptic seizure. Medical records showed a history of epileptic seizures, some of which involved inappropriate behavior. Tapia-Reyes described that in August 2008, while at work, he felt an epileptic seizure coming on. He reached over to touch his coworker who was standing next to him to tell her he was not feeling well. Just then, he had a seizure and his hand unintentionally "slid down her back." The incident was captured by a video surveillance camera. Tapia-Reyes testified that his supervisor showed him the video when he was fired but that Tapia-Reyes believed the video portrayed events in a manner consistent with a seizure. By the time of the hearing before the compensation court, the video was no longer available. Excel had destroyed it after 30 days, as was its customary practice.
On cross-examination, Tapia-Reyes was asked about a prior complaint made against him in 2004 for using inappropriate language to his coworkers. He admitted that, because of prior complaints, he was put on "final warning status." Tapia-Reyes testified that he was guilty of yelling at his coworkers when they did not keep up with their work on the line and that he recognized he did not have the authority to do so. He denied using any vulgar language other than once saying, "hurry up, huevona."
At this point, the interpreter interjected and the following exchange took place:
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