[Nos. 57445-1-I; 57446-9-I; 57447-7-I. Division One. January 22, 2008.]
[1] Industrial Insurance Award Finality In General. The Industrial Insurance Act (Title [2] Industrial Insurance Award Finality Unappealed Order Res Judicata Effect. An unappealed order issued by the Department of Labor and Industries on an industrial insurance claim is res judicata on the issues the order encompasses. The failure to appeal an order, even one containing a clear error of law, turns the order into a final adjudication, precluding any reargument of the same claim. [3] Industrial Insurance Administrative Review Unappealed Final Order Res Judicata In General. An unappealed order issued by the Department of Labor and Industries on an industrial insurance claim is res judicata on the issues the order encompasses. The failure to appeal an order, even one containing a clear error of law, turns the order into a final adjudication, precluding any reargument of the same claim. [4] Industrial Insurance Award Computation Wage Basis Unappealed Final Order Res Judicata Effect. An unappealed final order of the Department of Labor and Industries that establishes the wage basis for an award of time-loss compensation to an injured worker and that provides sufficient information to determine how the wage basis was calculated is res judicata as to any subsequent claim by the worker that the rate should have included an additional element of consideration. [5] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Review Timeliness. The Department of Labor and Industries' application of a previously determined wage rate in determining an injured worker's time-loss compensation does not subject the wage rate calculation to review if the time for seeking review of the wage rate has expired. Where administrative review is sought of an order applying the wage rate, the Board of Industrial Insurance Appeals has jurisdiction only over the propriety of the order, not the underlying unappealed wage rate order upon which it is based, and the board is precluded from considering the wage rate calculation. [6] Industrial Insurance Administrative Review Notice of Order What Constitutes Receipt of Order Understanding of Contents Necessity. An order issued by the Department of Labor and Industries on a claim for industrial insurance benefits is "communicated" to the worker within the meaning of RCW 51.52.060(1) for purposes of an appeal thereof if the order is received by the claimant. Under the statute, whether an order has been "communicated" depends on whether it is received, not on whether it is understood. [7] Appeal Review Issues Raised by Amici Curiae In General. An appellate court may decline to consider an issue raised solely in an amicus curiae brief. [8] Industrial Insurance Administrative Review Timeliness Limitation Period Expiration Excusal Equity Test. Equity will not lie to relieve a party from strict application of the statutory time limit for filing an appeal of an order issued by the Department of Labor and Industries on an industrial insurance claim if the party was not mentally incompetent, physically confined, or completely illiterate at the time of receiving notice of the order or if the party was not diligent in pursuing the claim and there was no misconduct by the department. [9] Industrial Insurance Judicial Review Issue Raised for First Time on Review. A court reviewing a Board of Industrial Insurance Appeals decision may decline to consider an argument that was not first raised to the board. [10] Administrative Law Due Process Procedural Due Process Requirements In General. An agency proceeding satisfies procedural due process of law if adequate notice and an opportunity to be heard are provided and any alleged procedural irregularities do not undermine the fundamental fairness of the proceeding. [11] Constitutional Law Due Process Procedural Due Process Scope In General. Procedural due process of law requires such procedural protections as the particular situation demands. [12] Constitutional Law Due Process Procedural Due Process Scope Factors. A court determines what process is due in a particular situation by weighing (1) the private interest at stake in the governmental action; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government interest involved, including the additional burdens that added procedural safeguards would entail. [13] Industrial Insurance Award Amount Dispute Interest at Stake Vested Interest. Where the Department of Labor and Industries has determined that an injured worker is entitled to industrial insurance coverage but there is a dispute between the worker and the department over the amount of coverage, the worker has a vested right at stake in the dispute. [14] Constitutional Law Due Process Notice Sufficiency Test In General. Procedural due process of law requires notice reasonably calculated, under all of the circumstances, to apprise interested persons of the pendency of the proceeding and to afford such persons an opportunity to present their objections. [15] Industrial Insurance Award Notice Sufficiency Limited English Proficiency Claimant Due Process. Written notice of a Department of Labor and Industries decision on a claim for industrial insurance benefits and of the procedure for seeking administrative review thereof that is given only in English to an injured worker having limited English proficiency may be sufficient to satisfy due process of law if the decision grants benefits, the notice reasonably informs the worker that further inquiry should be made and does not put the worker at risk of being wrongfully denied benefits, the worker is represented by counsel, the worker has an interpreter available, and the worker has knowledge of the appeal process from having previously filed a timely appeal. [16] Constitutional Law Due Process Imposition of Procedural Safeguards Fiscal Burden. The budgetary burden on an agency of providing a particular procedural safeguard is a factor a court may consider in determining whether a person deprived of the safeguard has been denied due process of law. [17] Constitutional Law Due Process Procedural Due Process Violation Prejudice Necessity. A person is not denied due process of law by an agency's failure to provide a procedural safeguard if the person is not significantly prejudiced by such failure. [18] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Necessity Statutory Provisions. The language interpreter services for non-English-speaking persons authorized by chapter 2.43 RCW do not apply to the administration of industrial insurance claims by the Department of Labor and Industries but do apply to proceedings before the Board of Industrial Insurance Appeals. The department's administration of a claim is not a "legal proceeding" within the meaning of the statute. A proceeding before the Board of Industrial Insurance Appeals does constitute a "legal proceeding" within the meaning of the statute and requires the board to appoint an interpreter to assist a non-English-speaking claimant "throughout the hearing." [19] 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 nonindigent party in proceedings before the board because the board is not an "initiating" government agency. [20] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services BIIA Proceedings "Throughout the Proceeding" Necessity. When the Board of Industrial Insurance Appeals appoints an interpreter for a non-English-speaking claimant at board expense under WAC 263-12-097, the board may not prevent the interpreter from translating whenever necessary to assist the claimant during the hearing. This includes all witness testimony and communications with counsel during hearings. [21] 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 does not render the decision in the case invalid if the claimant was not prejudiced by such failure. [22] Constitutional Law Due Process Deprivation Statutory Procedure Effect. A court may decline to consider a due process claim if the right sought by the claimant is provided by statute. [23] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Necessity Due Process. Due process of law does not provide a right to language interpreter services in industrial insurance claim proceedings beyond what is authorized by statute and Board of Industrial Insurance Appeals rules. [24] Constitutional Law Equal Protection Different Treatment for Different Persons In General. The equal protection requirements of the Fourteenth Amendment and Const. art. I, § 12 require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. [25] Constitutional Law Equal Protection Classifications Minimal Scrutiny Applicability. The rational basis test is used to analyze an equal protection challenge to a legislative classification if the classification does not draw a suspect or semisuspect class or implicate a fundamental right. [26] Constitutional Law Equal Protection Classifications Level of Scrutiny Suspect Class What Constitutes Test. For equal protection analysis purposes, a suspect class is a class of persons that has suffered a history of discrimination; that has as a defining characteristic an obvious, immutable trait that frequently bears no relation to the ability to perform in or contribute to society; and that is a minority or politically powerless class. Race, alienage, and national origin are examples of suspect classifications. [27] Constitutional Law Equal Protection Classifications Level of Scrutiny Suspect Class Language. Language, alone, does not identify one as a member of a suspect class. [28] Civil Rights National Origin Discrimination Language as Proxy Services Provided in English. The government does not use language as a proxy for discriminating on the grounds of national origin or ethnicity merely by offering a government program or service only in English and/or some other major language. [29] Industrial Insurance Claims Non-English-Speaking Claimant Services Provided in English and Spanish Only Validity Equal Protection. The Department of Labor and Industries' policy of providing services only in English and Spanish does not deprive non-Spanish speaking workers with limited English proficiency of the equal protection of the laws. The department's policy is rationally related to its legitimate interest in providing services to claimants in the most effective and cost effective way and reflects the department's recognition that English and Spanish are the primary languages spoken in Washington and the United States. [30] Constitutional Law Equal Protection Discriminatory Intent What Constitutes. A government agency's facially neutral conduct does not indicate unlawful discrimination absent an intent to discriminate against a suspect class. Discriminatory purpose implies more than intent as volition or intent as awareness of circumstances. It requires a showing that the challenged state action was taken at least in part because of and not merely in spite of its adverse effects upon an identifiable group. [31] Constitutional Law Equal Protection Classifications Minimal Scrutiny Test. Under the rational basis test for analyzing an equal protection challenge to a legislative classification, the classification will be upheld unless it rests on grounds that are unrelated to achieving its objectives. [32] Industrial Insurance Claims Non-English-Speaking Claimant Interpreter Services Necessity Equal Protection. The fact that the Department of Social and Health Services provides interpreter services to benefit recipients with limited English proficiency and the Department of Labor and Industries does not provide such services to claimants for industrial insurance benefits does not deprive industrial insurance claimants with limited English proficiency of the equal protection of the laws. There can be a rational basis for the distinctions made among different state agencies: the Department of Labor and Industries may legitimately determine that it would be fiscally and logistically impractical to provide interpreter services based on its limited public funds, or the Department of Social and Health Services may have a particularized legal obligation to provide interpreter services. [33] Constitutional Law Equal Protection Scope Partial Remedy. The equal protection clause does not require the State to choose between attacking every aspect of a problem or not attacking the problem at all. It is enough that the State's action be rationally based and free from invidious discrimination. [34] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Employer Contributions Dental Coverage. The value of employer-paid contributions for an employee's dental coverage constitutes "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. [35] 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. Such contributions are not consideration for services under the contract for hire, do not constitute other consideration of a like nature to wages, and are not critical to protecting the worker's basic health and survival. [36] Industrial Insurance Judicial Review Appellate Review Role of Appellate Court. Appellate review of a judgment entered by a superior court on judicial review of a Board of Industrial Insurance Appeals decision is limited to determining whether substantial evidence supports the superior court's findings of fact and whether the trial court's conclusions of law flow from those findings. [37] Industrial Insurance Disability Total Disability Temporary Total Disability Time-Loss Compensation Basis Wages Employer Contributions Health Insurance Contributions to Union Trust Fund Amount Paid to Fund or Amount Paid by Fund for Coverage. Where an employer contributes to a union trust fund on behalf of a worker for the worker's health care coverage, the amount of the health care benefit contribution that is included in the worker's wage basis for time-loss compensation purposes is the amount the employer paid to the trust fund, not what the trust actually paid in premiums for the health care coverage. The focus is on the payment for the benefit, not the entitlement to coverage, because the payment for the benefit is what was being received at the time of injury. [38] Industrial Insurance Judicial Review Attorney Fees Prevailing Employee Effect on Accident Fund Necessity. RCW 51.52.130 does not authorize an attorney fee award to an injured worker who obtains a favorable ruling by a court on appeal of a Board of Industrial Insurance Appeals decision if the court's order does not suggest a remand or adjustment of the worker's benefits as a result of the ruling. Nature of Action: Three injured workers of limited English proficiency sought judicial review of Board of Industrial Insurance Appeals decisions involving their wage-rate calculations for time-loss compensation purposes and their entitlement to interpreter services at public expense. Superior Court: After consolidating the cases, the Superior Court for King County, No. 04-2-26427-8, William L. Downing, J., on November 21, 2005, entered a judgment affirming the board's orders, ruling that (1) the failure of two of the plaintiffs to have appealed prior orders determining their wage rates precluded review of those rates in later orders applying the rates, (2) the third plaintiff's wage rate orders were correct because the additional employer-paid benefits he sought to have included in his wage rate calculation were not "in-kind consideration that a worker must replace while disabled" or "critical to the worker's health or survival," and (3) language interpreters are required only during legal proceedings. Court of Appeals: Holding that the unappealed wage rate orders were final and binding, that the timely-appealed wage rate order correctly excluded additional employer-paid benefits, and that the plaintiffs failed to show that they were prejudiced by the notices provided by the Department of Labor and Industries or the interpreter procedures employed by the Board of Industrial Insurance Appeals, the court affirms the judgment. Ann Pearl Owen- (of Ann Pearl Owen, PS), for appellants. Robert M. McKenna-, Attorney General, John R. Wasberg-, Senior Counsel, and Johnna S. Craig-, Spencer W. Daniels-, and Masako Kanazawa-, Assistants, for respondent. Christie L. Snyder-, Pamela Jo DeVet-, and Aaron H. Caplan- on behalf of American Civil Liberties Union of Washington, amicus curiae. Kelly A. Owen-, Katherine Frances Laner-, and Patrick M. Pleas- on behalf of Northwest Justice Project, amicus curiae. Paula T. Olson- on behalf of Washington Self Insurers Association, amicus curiae. Bryan P. Harnetiaux-, Kelby D. Fletcher-, and Michael J. Pontarolo- on behalf of Washington State Trial Lawyers Association Foundation, amicus curiae. Ά1 AGID, J. Three injured workers of limited English proficiency (LEP) appeal a superior court order affirming orders of the Board of Industrial Insurance Appeals (Board). The superior court concluded: (1) two of the workers' failure to appeal orders from the Department of Labor and Industries (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. FACTS Kustura Ά2 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, and 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. Ά3 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, and 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. Ά4 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 $110.00 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. Ά5 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, and 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. Ά6 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. Lukic Ά7 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, Ά8 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. Ά9 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. Ά10 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. Ά11 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. Ά12 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. Ά13 On the interpreter issue, the Board concluded that it only had appellate jurisdiction and lacked authority to direct the Department in its initial claim administration. The Board also concluded that RCW 2.43.040 does not 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. Memisevic Ά14 Maida Memisevic is also a Bosnian immigrant who is not fluent in English. Like Kustura, she worked as a janitor for DBM and received benefits under the union contract. DBM contributed to the union trust fund that paid for her health care; pension benefits; and life, accidental death, and disability insurance benefits, and made regular payroll deductions from wages for contributions to government-mandated programs. Ά15 On November 1, 2001, Memisevic injured her back on the job and applied for and received benefits from the Department. On February 22, 2002, the Department issued an order calculating her wage rate for time-loss compensation to include $252.00 for monthly employer-paid health care insurance. She did not protest or appeal this order. Ά16 In January and February 2003, the Department issued three additional orders paying time-loss compensation based on this rate. She appealed these three orders, requesting recalculation of benefits, translation services, issuance of orders in Bosnian, and a declaration that she did not waive any right to relief because decisions were not communicated to her in her native language. She also appealed a Department letter that denied her request to provide interpreter services for communications with her attorney. Ά17 On appeal, the IAJ heard testimony about DBM's contributions to her health care coverage and other employer-paid benefits. Memisevic also testified that she used an interpreter "every time" she received a Department document. In a proposed decision and order, the IAJ affirmed the Department orders, concluding that Memisevic's failure to appeal the February 22, 2002 order determining the wage rate precluded review of that order and that she was not entitled to Department payment for interpreter services for communications with her attorney. She appealed this decision to the full Board, which affirmed the IAJ's order. Appeal to Superior Court Ά18 All three workers sought review of the Board orders in appeals to the superior court. The superior court consolidated the appeals and affirmed the Board's orders, concluding: (1) Lukic and Memisevic's failure to appeal orders determining their wage rates precludes review of those rates in later orders applying those rates, (2) Kustura's wage rate orders were correct because the other employer-paid benefits he sought to include in the wage calculation were not "in-kind consideration that a worker must replace while disabled" or "critical to the worker's health or survival," and (3) interpreters are only required during legal proceedings and not for matters outside of the proceeding itself. All three workers moved for reconsideration of the superior court's order, which was denied. I. Appeals of Wage Rate Orders Ά19 Lukic and Memisevic contend that the Board erred by ruling that their failure to appeal the initial wage rate orders prevents them from challenging that rate. They argue that because the appeal notice was not communicated to them in their primary language, the appeal time limits were not triggered when they received the orders. Alternatively, they argue that they are entitled to equitable relief from strict compliance with the appeal deadlines. We disagree. Ά21 RCW 51.52.060(1) establishes appellate jurisdiction of Department orders. It provides that 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." Ά22 But neither Lukic nor Memisevic ever appealed the wage rate orders. Thus, these are not untimely appeals of Department orders, but complete failures to appeal them. The only appeals before the Board were those of orders that applied the previously-determined wage rate: those that denied benefits and closed claims for Lukic, and those that authorized compensation for specified time periods for Memisevic. Thus, the Board has jurisdiction only over the propriety of those orders, not the underlying unappealed wage rate orders upon which they were based, and it is precluded from reconsidering their wage rate calculations. Ά24 We hold that the record here demonstrates that Department orders were sufficiently "communicated" to Lukic and Memisevic to trigger the appeal time limit. Not only did they receive the orders, but most were sent to their attorneys, and they filed timely appeals of some of them, dispelling any suggestion that they were uninformed about the appeal process when they received the wage rate orders. Ά26 In Rodriguez, an injured worker was entitled to equitable relief from the 60-day time limit to file an appeal of a Department order that had closed his claim when the worker was "extremely illiterate," his interpreter was hospitalized and unable to interpret for him when he received the Department notice, and he left the area for six months to be with his ill mother. Ά27 Similarly in Ames v. Department of Labor & Industries, Ά28 But in Kingery v. Department of Labor & Industries, the court declined to grant equitable relief from strict compliance with the same appeal time limits when the claimant, the worker's widow, failed to show that she was incompetent when she received the Department's order or that the Department engaged in misconduct. Ά29 Here, the record shows that unlike the claimants in Rodriguez and Ames, both Lukic and Memisevic were available and competent at the time they received the Department orders. And unlike the appellants in Rodriguez and Ames, they cite no extraordinary circumstances preventing them from receiving the orders or timely challenging them. They were not mentally incompetent or physically confined like Ames, nor were they completely illiterate, without English speaking assistance, and physically out of the area during the appeal filing time period like Rodriguez. Rather, they both had attorneys and/or interpreters to assist them and did not explain why they did not appeal the wage orders when they were able to file timely appeals of other Department orders. Thus, as in Kingery, they are not entitled to equitable relief absent a showing that they were incompetent, that the Department committed misconduct, or that they exercised diligence in pursuing their claims. shall bear on the same side of the same page on which is found the amount of the award, a statement, set in black faced type . . . that such final order, decision, or award shall become final within sixty days from the date the order is communicated to the parties unless a written request for reconsideration is filed with the department of labor and industries, Olympia, or an appeal is filed with the board of industrial insurance appeals, Olympia. II. Department Notices and Due Process Ά33 Here, the Department made such a determination by allowing all the injured workers' claims and issuing orders entitling them to compensation. Their claims on appeal were only challenges to the amount of that compensation. They therefore had a vested right at stake. Ά34 Considering the second Mathews factor, the workers argue that the Department's procedures of providing notice of appeal deadlines in only English or Spanish and limiting LEP claimants' use of interpreters during Board hearings pose significant risks to LEP claimants. They argue that the inadequate notices of appeal deadlines are not reasonably calculated to inform them of the proceedings, so they may be wrongfully denied benefits. They contend that the Department knew the workers did not speak English but took no steps to ensure that they would receive actual intelligible notice of the appeal deadlines. Ά36 We hold that on these facts, the Department's notices reasonably informed the recipients that they should make further inquiries and did not put them at risk of being wrongfully denied benefits. Both Lukic and Memisevic had counsel, Memisevic used an interpreter, and both had knowledge of the appeal process, having previously filed timely appeals. Most importantly, they both obtained benefits from the Department and Lukic also obtained permanent disability status which increased her benefits. Thus, they have not shown that the procedures used here caused a risk that they would be erroneously denied benefits. III. Interpreter Services for "Proceedings" under chapter 2.43 RCW Whenever an interpreter is appointed to assist a non-English-speaking person in a legal proceeding, the appointing authority shall, in the absence of a written waiver by the person, appoint a certified or a qualified interpreter to assist the person throughout the proceedings. [W]hen a non-English-speaking person is a party to a legal proceeding, or is subpoenaed or summoned by an appointing authority or is otherwise compelled by an appointing authority to appear at a legal proceeding, the appointing authority shall use the services of only those language interpreters who have been certified by the administrative office of the courts, unless good cause is found and noted on the record by the appointing authority. . . . Board regulations provide that when a non-English-speaking person is a party or a witness in a hearing before the Board, the IAJ "may appoint an interpreter to assist the [non-English-speaking] party or witness throughout the proceeding." Ά39 RCW 2.43.040 addresses the cost of such services and provides: In all legal proceedings in which the non-English-speaking person is a party, or is subpoenaed or summoned by the appointing authority or is otherwise compelled by the appointing authority to appear, including criminal proceedings, grand jury proceedings, coroner's inquests, mental health commitment proceedings, and other legal proceedings initiated by agencies of government, the cost of providing the interpreter shall be borne by the governmental body initiating the legal proceedings. In other legal proceedings, the cost of providing the interpreter shall be borne by the non-English-speaking person unless such person is indigent according to adopted standards of the body. In such a case the cost shall be an administrative cost of the governmental body under the authority of which the legal proceeding is conducted. Board regulations authorize the Board to pay for interpreter services when the IAJ appoints an interpreter. Ά40 The workers argue that the Department's and the Board's failure to provide an interpreter at every stage of the proceedings violated RCW 2.43.030. Ά41 The workers argue that interpreters are required during all Department and Board actions, urging us to adopt a broad interpretation of "legal proceeding" and hold that it encompasses "[a]ny procedural means for seeking redress from a tribunal or agency." Ά42 In the phrase "hearing before an inquiry judge, or before an administrative board, commission, agency, or licensing body of the state or any political subdivision thereof," the second clause, "before an administrative board, commission, [etc.]," modifies only the word "hearing," which immediately precedes those qualifying prepositional phrases. Ά45 Here, the Board did appoint interpreters for each of the hearings at Board expense. Thus, we need only determine whether the Board provided sufficient interpreter services to assist the workers throughout the hearing, in compliance with the statute and Board regulations. The Board provided interpreters for all witness testimony for Lukic's and Memisevic's hearings and for Kustura's testimony. But by not providing an interpreter for all other witness testimony at Kustura's hearing or for communications with counsel during any of the hearings, the Board failed to comply with the statute's directive and its own regulations which require it to provide an interpreter to assist the workers "throughout the proceeding." Ά46 While the workers contend that the Department's procedures prevented them from speaking with counsel or understanding certain witness testimony, they do not demonstrate actual resulting prejudice. In Kustura's case, the wage determination issues were largely legal and involved expert testimony about what employer contributions should be included in the wage rate. As the Board noted, there was no conflict in that testimony. Thus, it is unlikely that Kustura could have offered critical input on these issues even if the entire hearing was translated for him, and he makes no offer of proof to the contrary. Likewise Lukic and Memisevic fail to demonstrate prejudice. In both cases, the Board provided an interpreter for all testimony taken and statements made throughout the hearings but did not provide an interpreter for perpetuation depositions or attorney communications. IV. Interpreter Services and Due Process V. Equal Protection Ά48 The workers also contend that their right to Equal Protection was violated because the Department's procedures gave preferential treatment to Spanish-speaking claimants and because they are not entitled to the same interpreter services as LEP recipients of benefits from the Department of Social and Human Services (DSHS). Unlike race, place of birth, or sex, language is not one of those "immutable characteristic[s] determined solely by the accident of birth" which typically are the basis for finding a suspect class. Frontiero v. Richardson, 411 U.S. 677, 686, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583 (1973). Although our first choice of language may be initially determined to some extent "by the accident of birth," id., we remain free thereafter to choose another should we decide to undertake the initiative. Indeed, bilingualism or multilingualism is hardly an extreme rarity today, as [plaintiff's] own bilingualism exemplifies. Moreover, even if a significant percentage of those speaking a particular language can be shown to be of one "discrete and insular" racial or ethnic minority, United States v. Carolene Products Co., 304 U.S. 144, 152 n.4, 58 S. Ct. 778, 783 n.4, 82 L. Ed. 2d 1234 (1938), not all persons speaking that language would be so situated. The court would thus face the problem of blurred lines defining those persons entitled to heightened protection from use of the challenged classification, with the possibility of overbroad protection leading to the striking down of otherwise rationally based official action. . . . While there is some authority that singling out speakers of a particular language merits strict scrutiny, no case has held that the provision of services in the English language amounts to discrimination against non-English speakers based on ethnicity or national origin. Were the government to target a particular language group for differential treatment, the inference might be drawn that the intended target is the racial or ethnic group closely associated with that language group. But the facts and allegations here do not involve the singling out of one language group for a denial of interpreter services or the scrutiny or compulsion of persons speaking a particular language.