[Nos. 58200-3-I; 58505-3-I. Division One. January 22, 2008.]
[1] Administrative Law Agency Authority Right To Appeal Quasi-Judicial Agencies Integrity of Decision-Making Process. Although a quasi-judicial agency generally is not permitted to appeal an adverse court decision, a quasi-judicial agency interested in preserving the integrity of its decision-making process may appeal a decision that affects its procedures. [2] Industrial Insurance Judicial Review Appellate Review Standing Board of Industrial Insurance Appeals Interpreter Services Integrity of Board Procedures. In the interest of preserving the integrity of its decision-making process, the Board of Industrial Insurance Appeals has standing to appeal a superior court's rulings, made in an action in which the board was not a party, that the board's interpreter services are constitutionally deficient and that the board is required to alter those procedures and allocate funds for additional services. [3] Appeal Standing Nonparty to Trial Proceedings Aggrievement What Constitutes. Under some circumstances, a person who was not a formal party to a trial court proceeding but who is aggrieved by an order entered in the course of the proceeding may appeal the order as an "aggrieved party" within the meaning of RAP 3.1. "Aggrieved" means a denial of some personal or property right, legal or equitable, or the imposition of a burden or obligation. [4] Industrial Insurance Judicial Review Appellate Review Standing Board of Industrial Insurance Appeals Interpreter Services Aggrieved Party. The Board of Industrial Insurance Appeals can have standing as an aggrieved party to appeal a superior court's rulings, made in an action in which the board was not a party, that the board's interpreter services are constitutionally deficient and that the board is required to alter those procedures and allocate funds for additional services. [5] Industrial Insurance Judicial Review Appellate Review Standard of Review. An appellate court reviews de novo a judgment entered by a superior court on judicial review of a Board of Industrial Insurance Appeals decision to determine whether substantial evidence supports the superior court's findings of fact and whether the superior court's conclusions of law flow from those findings. [6] Industrial Insurance Judicial Review Standard of Review Agency Record. A superior court reviewing a Board of Industrial Insurance Appeals decision acts in an appellate capacity, reviewing the board's decision de novo, but it cannot consider matters outside of the record or presented for the first time on appeal. [7] Industrial Insurance Administrative Review Board of Industrial Insurance Appeals Scope of Review Issues Decided by Department of Labor and Industries. When reviewing a Department of Labor and Industries decision on an industrial insurance claim, the Board of Industrial Insurance Appeals may consider only those issues actually decided by the department. [8] Industrial Insurance Administrative Review Decisions Reviewable Written Decision in Record Necessity. Under RCW 51.52.050 and .060, for a Department of Labor and Industries decision on a worker's industrial insurance claim to be appealable by the worker, the decision must be in writing and served on the worker. The board does not have jurisdiction to consider an alleged departmental decision if there is no written decision in the record. [9] Industrial Insurance Administrative Review Decisions Reviewable Denial of Language or Interpreter Services No Appealable Decision. When an injured worker with limited English proficiency believes that the Department of Labor and Industries has been unresponsive to requests for language or interpreter services but there is no decision thereon from which the worker can appeal, the worker may seek relief by a writ of mandamus. Where there does not exist a specific department decision addressing the issue of interpreter or language services, the department's continued use of English-only notices despite its knowledge that the worker has limited English proficiency is not an appealable department action. [10] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Necessity Legal Authority. Neither chapter 2.43 RCW nor constitutional due process or equal protection considerations entitle an injured worker with limited English proficiency to interpreter services for communications with counsel outside of legal proceedings before an Industrial Appeals Judge or the Board of Industrial Insurance Appeals for which an interpreter has been appointed or to have the interpreter services paid as a public expense absent a determination that the worker is indigent. [11] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Scope Breaks and Off-the-Record Proceedings. When an interpreter is appointed for an injured worker with limited English proficiency for proceedings before an Industrial Appeals Judge or the Board of Industrial Insurance Appeals, the worker is entitled to use the interpreter for communicating with counsel during the entire course of the proceedings, including breaks and proceedings off the record. [12] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services BIIA Proceedings "Throughout the Proceeding" Denial Effect. A failure by an Industrial Appeals Judge or the Board of Industrial Insurance Appeals to allow a non-English-speaking claimant to use an appointed interpreter at all appropriate times during a proceeding as required by chapter 2.43 RCW and WAC 263-12-097 is not reversible error if the claimant was not prejudiced by such failure. The worker is not prejudiced if the failure did not likely affect the outcome of the proceeding. [13] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Necessity Matters Outside of Board Hearing. There is no authority for requiring the Board of Industrial Insurance Appeals to provide interpreter services for a non-English-speaking claimant for matters outside of the board hearing. [14] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services BIIA Proceedings Payment by Board Statutory Provisions. Under chapter 2.43 RCW, which authorizes interpreter services for non-English-speaking persons in legal proceedings, the Board of Industrial Insurance Appeals is not required to pay for interpreter services for a non- indigent party in proceedings before the board because the board is not an "initiating" government agency. [15] Parties Intervention Timeliness In General. There is no rule limiting the time within which a person must file a motion to intervene in an action. The timeliness of a motion to intervene is determined by considering the specific circumstances of the case and the reasonableness of the movant's actions. [16] Parties Intervention Matter of Right Test. A party may intervene in an action as a matter of right under CR 24(a)(2) if (1) the party has made a timely application for intervention, (2) the party claims an interest that is the subject of the action, (3) the disposition of the case likely will adversely affect the party's ability to protect the interest, and (4) the party's interest is not adequately represented by the existing parties. [17] Industrial Insurance Judicial Review Parties Intervention Board of Industrial Insurance Appeals Liability for Expenses. The Board of Industrial Insurance Appeals should be allowed to intervene in an industrial insurance claimant's action for judicial review of an adverse administrative decision if the claimant is seeking a judgment against the board for reimbursement of expenses that the claimant alleges the board should bear. [18] Judgment Parties Absent Party Motion To Intervene Denial Abuse of Discretion. A trial court abuses its discretion by entering a judgment against a person who is not a party and then refusing to allow the person to defend against that judgment. [19] Costs Attorney Fees On Appeal Request To Appellate Court Necessity. Under RAP 18.1, a request for attorney fees incurred before an appellate court must be made to that court. [20] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Overtime Hours Overtime Rate of Pay Applicability. An overtime rate of pay may be used for valuing overtime hours worked by an injured worker in calculating the worker's wage basis for time-loss compensation purposes only as provided in RCW 51.08.178. Under the statute, an overtime rate of pay may be used only if the worker's employment is "exclusively seasonal" or "part-time or intermittent." [21] Administrative Law Judicial Review Findings of Fact Failure To Assign Error Effect. An unchallenged administrative finding of fact is a verity before a reviewing court. [22] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Paid Leave Calculation. Holiday pay and vacation pay may be included in the calculation of an injured worker's wage basis for time-loss compensation purposes by either (1) including the cash value of the employer's contributions for hourly leave in determining the hourly pay rate or (2) including the leave hours taken in determining the total number of hours worked. Where a 40-hour workweek is used to calculate a worker's wage basis, the days may be counted as days worked even if the worker took them as vacation days. The worker is not entitled to any additional amounts if no claim is made that additional leave was taken that is unaccounted for in the base calculation. [23] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Employer Contributions Government Mandated Benefits. The value of employer-paid contributions to the Social Security fund, the Medicare fund, the industrial insurance fund, and the unemployment compensation fund on a worker's behalf does not constitute "wages" within the meaning of RCW 51.08.178, which defines the wage basis on which an injured worker's time-loss compensation is calculated. Nature of Action: An injured worker with limited English proficiency sought judicial review of Board of Industrial Insurance Appeals decisions involving his wage-rate calculation for time-loss compensation purposes and his entitlement to interpreter services at public expense. Superior Court: The Superior Court for King County, No. 05-2-22775-3, Deborah D. Fleck, J., on March 21 and April 19, 2006, entered a judgment partly in favor of the Department of Labor and Industries and partly in favor of the plaintiff, ruling that the plaintiff's wage basis was properly calculated but that the plaintiff was improperly denied interpreter services. The court later denied the board's motion to intervene in the action. Court of Appeals: Holding that the plaintiff was not entitled to any greater interpreter services than were provided, that the plaintiff was not prejudiced by the board's failure to provide an interpreter for communications with counsel during the review hearing, that the board's motion to intervene in the action should have been granted, and that the plaintiff's wage basis for time-loss compensation purposes was properly calculated, the court affirms the judgment in part and reverses it in part. Robert M. McKenna-, Attorney General, John R. Wasberg-, Senior Counsel, and Masako Kanazawa-, Assistant, for appellant Department of Labor and Industries. Robert M. McKenna-, Attorney General, and Johnna S. Craig- and Spencer W. Daniels-, Assistants, for appellant Board of Industrial Insurance Appeals. Ann Pearl Owen- (of Ann Pearl Owen, PS), for respondent. Paula Tuckfield Olson- on behalf of Washington Self-Insurers Association, amicus curiae. Bryan P. Harnetiaux- and Michael J. Pontarolo- on behalf of Washington State Trial Lawyers Association Foundation, amicus curiae. Ά1 AGID, J. The Department of Labor and Industries (Department) and the Board of Industrial Insurance Appeals (Board) appeal a superior court order directing both the Department and the Board to reimburse Enver Mestrovac, a Department benefit claimant with limited English proficiency (LEP), for the cost of interpreter services not provided by either the Department or the Board. The Board also appeals from the superior court's order denying its motion to intervene and awarding attorney fees to Mestrovac. Mestrovac cross-appeals, challenging the superior court's ruling affirming the Department's wage rate calculation for his time-loss compensation. Because the Constitution does not require interpreter services beyond that which the Department and the Board provided, and Mestrovac demonstrates no prejudice resulting from the Board's failure to provide an interpreter for communications with counsel during the hearing, we reverse the rulings requiring the Department and Board to reimburse Mestrovac for his interpreter expenses. Additionally, because the superior court's order imposed a judgment against the Board and affected the integrity of its procedures, we reverse its order denying the Board's motion to intervene. But because the Board correctly accounted for Mestrovac's holiday and vacation pay and properly excluded other employer-paid benefits as not critical to his basic health and survival, we affirm the wage calculation. FACTS Ά2 Mestrovac is a Bosnian immigrant and is not fluent in the English language. In 2003, he injured his wrist while unloading furniture containers for A-America, Inc., and applied for and received benefits from the Department. On October 10, 2003, his attorney informed the Department that she was representing Mestrovac, that the Department was to communicate through her on his claim, and that Mestrovac "does not speak English as his native language." On October 20, 2003, his attorney sent the Department a letter requesting an order authorizing interpreter services and payment for Mestrovac's interpreter bills for services "in connection with [his] communications with his health care providers, [the Department], the Board, voc[ational] rehab[ilitation] personnel, IME [independent medical examination] examiners, and his counsel through all phases of his claim and appeals thereon." The Department did not issue an order or otherwise specifically respond to this request. Ά3 In October and November 2003, the Department issued three time-loss computation orders for certain time periods during which Mestrovac was temporarily totally disabled. In each of these orders, the Department computed his monthly wage at $1,584 based on eight-hour work days, five days a week, at $9 per hour. All three orders were issued in English; one was sent to Mestrovac on October 10, 2003, and the other two were sent to his attorney on October 24 and November 7, 2003. Mestrovac appealed all three orders. Ά4 In his appeal he challenged his wage computation, asserting that it should have included (1) employer-provided health benefits; (2) average of regular overtime hours; (3) bonuses; (4) vacation and holiday pay; (5) employer contributions to retirement benefits, life insurance, accidental death and dismemberment insurance, and short-term disability insurance; and (6) employer taxes for Medicare, Social Security, and unemployment insurance. He also asserted that the Department did not provide him sufficient interpreter services during claim administration and that he was entitled to the following services from both the Department and the Board: [interpreter services for] [a]ll communications addressed to him, his lawyer, to any of his treating physicians or other health care providers, to any [other] provider for the Department, with the Department, with his employer, with his counsel, with IME examiners, with the Board, and associated with vocational rehabilitation. . . . Ά5 During a scheduling telephone conference, the Industrial Appeals Judge (IAJ) ruled that the Board would provide and pay for interpreter services at the hearing, but not for communications with counsel during the hearing. Mestrovac's attorney then informed the IAJ that if he needed to hire an interpreter for attorney communications, he would be seeking reimbursement for these services as costs of the hearing. The IAJ also denied Mestrovac's claim for additional interpreter services at the Department level, concluding that the Board had no jurisdiction to grant such relief because the appeal before it was an appeal of the time-loss orders and no appealed Department order addressed the interpreter issue. Mestrovac sought interlocutory review of this order, which was denied. Ά6 The IAJ then held a hearing on the wage computation issue but refused to hear evidence on the interpreter issue. The IAJ provided interpreter services during the hearing, but not for Mestrovac's communications with his attorney. The IAJ then issued a proposed decision and order reversing the time-loss orders and concluding that overtime hours, health care benefits, bonuses, holiday pay, and vacation pay should have been included in the wage computation. The IAJ also ruled that the value of other employer paid benefits and taxes should be excluded. The IAJ's ruling increased the monthly wage to $2,119.41. Ά7 Both Mestrovac and the Department appealed the IAJ's proposed decision to the full Board. The Department challenged the wage computation that included holiday and vacation pay, and Mestrovac challenged the IAJ's adverse rulings on the wage computation issues. He also asserted that he incurred interpreter expenses at both Department and Board proceedings and requested that the Department: (1) determine the amount of expenses he incurred in pursuing his claim; (2) reimburse him for these expenses; and (3) provide him with interpreter services "until final closure occurs on the claim," including representation at the Department, Board, superior court, Court of Appeals, and Supreme Court levels. Ά8 The Board issued a decision and order agreeing with the IAJ's decision, except for the issue of holiday and vacation pay, concluding that the Department had already included those hours in its base wage calculation. The Board also concluded that the IAJ complied with the applicable law relating to interpreter services to be provided at Board hearings. The Board held that it lacked subject matter jurisdiction to consider any issues relating to interpreter services at the Department level. Ά9 Mestrovac appealed the Board's order to the superior court. On March 20, 2006, the superior court issued a letter opinion, findings of fact and conclusions of law, and a judgment, affirming the Board on the wage computation issues but reversing on the interpreter issues. In the letter opinion, the court concluded that it had the authority to address Mestrovac's procedural due process claims, even if not addressed by the Board, and declined to include an attorney fees award to Mestrovac because he did not prevail on any of the substantive claims. In its conclusions of law, the court ruled that it did not have jurisdiction over the issue of the Department's provision of interpreter services, but that the Board had jurisdiction over issues Mestrovac raised on appeal relating to his LEP status, and that both the IAJ and the Board erred by failing to consider these issues. The court then entered judgment for the Department but ordered the Department to determine the amount of Mestrovac's interpreter expenses and to reimburse him with interest. Ά10 The Department moved for reconsideration and clarification of the court's rulings on the interpreter issue. On April 17, 2006, the court issued an order on this motion and revised its conclusions of law to state: (1) it had jurisdiction "over the issue of the Department's use of English to communicate with Mr. Mestrovac"; (2) the Board erred by failing to include findings on issues "regarding communications with him in English, his right to communications with his employer, the Department, and counsel of his choice regarding his industrial injury in his primary language or through interpreter services paid for by the Department"; (3) the Board must hold a hearing to determine the amount of interpreter expenses he incurred because of the Department's and the Board's failure to provide additional interpreter services; and (4) the Department must pay interpreter expenses incurred until the Board assumed jurisdiction, and the Board must pay those expenses incurred after Mestrovac filed his first notice of appeal to the Board. Ά11 On May 11, 2006, after receiving notice of the court's revised order, the Board moved to intervene in the superior court matter. A day later, the Department filed with this court a notice of appeal of the revised order, and both the Board and Mestrovac filed cross-appeals. On June 15, 2006, the superior court entered a proposed order that denied the Board's motion to intervene, contingent upon this court's permission to enter the order. The proposed order also granted attorney fees to Mestrovac against the Department, reversing its earlier decision denying Mestrovac an attorney fees award, and awarded attorney fees against the Board for work performed on Mestrovac's response to the Board's motion to intervene. Ά12 On July 18, 2006, we granted Mestrovac's motion to enter the superior court's proposed order but denied his motions to dismiss the Board's appeals to this court. On August 1, 2006, with this court's permission, the superior court entered a second order to include an additional attorney fees award of $1,750 against the Board for Mestrovac's work before this court, seeking to enter the superior court's proposed order. The Board filed timely appeals of both superior court orders. I. Department and Board Appeal of Superior Court Orders Ά13 We first address the Department's and Board's appeal of the superior court's March 20, 2006 and April 17, 2006 orders. Both the Department and the Board argue that the superior court did not have jurisdiction over Mestrovac's due process claims at the Department level, that neither the Department nor the Board violated his due process rights by denying his request for additional interpreter services, and that neither the Department nor the Board should reimburse Mestrovac for his additional interpreter expenses. The Board also contends that the trial court erred by requiring it to hold a hearing to determine the amount of interpreter fees to be reimbursed to Mestrovac because doing so would compromise its impartiality. A. Board Standing To Appeal B. Appellate Review of Department Interpreter Services Ά16 The Department and the Board contend that the superior court erred by concluding that both the court and the Board had jurisdiction to address the Department's interpreter procedures because there was no Department order addressing these procedures from which Mestrovac could appeal. Mestrovac contends that the Department's repeated use of English-only communications with its knowledge of his LEP status amounts to an appealable decision within the meaning of RCW 51.52.060, despite the absence of a written decision from the Department addressing this procedure. Ά19 Thus, if Mestrovac believed the Department was unresponsive to his requests but had no decision from which to appeal, he had available to him the remedy of filing a writ of mandamus. There is no legal support for his argument that absent a specific Department decision addressing this procedure, the Department's continued use of the English-only notices despite its knowledge of his LEP status is an appealable Department action. C. Due Process and Equal Protection Ά21 As we held in the Kustura opinion, neither the Department's nor the Board's interpreter procedures conflict with the constitutional guaranties of due process or equal protection, as Mestrovac contends. Ά22 As did the claimants in Kustura, Mestrovac fails to demonstrate any prejudice caused by the Board's failure to provide him an interpreter for his communications with counsel during the hearing. Mestrovac identifies the prejudice as the added financial cost of an interpreter to provide these additional services and asserts that by having to pay these additional costs, his benefits were reduced. But he does not allege that this additional language assistance likely affected the outcome of his claim. Indeed, his attorney reviewed all Department orders, he filed a timely appeal, he had an evidentiary hearing before the Board which was interpreted for him, and his attorney submitted extensive briefing on the legality of the wage computation. As in Kustura, it is unlikely that he could have offered any additional input that would have been critical to his case and that required an interpreter for his communications with counsel. Mestrovac makes no showing to the contrary. Most importantly, he ultimately obtained the correct amount of benefits from the Department. II. Denial of Board's Motion To Intervene Ά25 The Board also had an obvious interest in not paying a judgment against it for reimbursement fees, but because it was not a party, it could not defend against the claim. Nor was the Board's interest adequately protected by the Department. The Department had its own interest in not paying for the same fees and could dispute the way in which the court allocated the fees between itself and the Board. III. Wage Calculation Ά27 Finally, we address Mestrovac's cross-appeal in which he challenges the Department's wage calculation. He contends the Board erroneously excluded overtime pay, holiday and vacation pay, and employer contributions to government-mandated benefits. We disagree. Ά32 We reverse in part and affirm in part. BAKER and DWYER, JJ., concur.