[No. 58878-8-I. Division One. January 22, 2008.]
[1] Industrial Insurance — Judicial Review — Burden of Proof. Under RCW 51.52.115, a Board of Industrial Insurance Appeals decision in an industrial insurance case is prima facie correct. The burden of proving otherwise is on the party challenging the decision. [2] Industrial Insurance — Judicial Review — Standard of Review — Agency Record. Under RCW 51.52.115, a superior court reviewing a Board of Industrial Insurance Appeals decision in an industrial insurance case 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. [3] 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. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the matter. Unchallenged findings of fact are verities on appeal. [4] Parties — Intervention — Matter of Right — Review — Standard of Review. A trial court's grant of intervention as a matter of right under CR 24(a)(2) will not be disturbed by a reviewing court absent an error of law. [5] Parties — Intervention — Permissive Intervention — Review — Standard of Review. A trial court's grant of permissive intervention under CR 24(b)(2) is reviewed for an abuse of discretion. [6] 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. [7] Parties — Intervention — Permissive Intervention — Grounds — Factors. A party may intervene in an action by the permission of the court under CR 24(b)(2) if the application is timely and the party's claim or defense presents a common question of law or fact with the main action, though the court will also consider whether the intervention would unduly delay or prejudice the rights of the original parties. [8] 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. [9] Industrial Insurance — Disability — Total Disability — Temporary Total Disability — Time-Loss Compensation — Basis — Wages — Employer Contributions — Health Insurance — In General. The value of employer-paid health care premiums 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. [10] Industrial Insurance — Disability — Total Disability — Temporary Total Disability — Time-Loss Compensation — Basis — Wages — Paid Leave — Holiday and Vacation Days — Earned But Not Taken. The value of holiday and vacation days that a worker has earned but not taken 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. [11] Industrial Insurance — Disability — Total Disability — Temporary Total Disability — Time-Loss Compensation — Basis — Wages — Profit Sharing Bonus — Time of Payment — Effect. The value of an injured worker's profit sharing bonus that was not earned in the year prior to the injury 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. [12] 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. [13] Appeal — Assignments of Error — Argument — Basis in Record — Specific Citation — Necessity. An appellate court may decline to consider a claim or argument that is unsupported by citation to the record. [14] Appeal — Assignments of Error — Authority — Absence — Effect. An appellate court may decline to consider a claim or argument that is unsupported by authority explaining why the alleged actions of the tribunal below constitute prejudicial error. [15] 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. [16] 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. A decision that has not been reduced to writing and served on the worker is not properly before the Board of Industrial Insurance Appeals for review; i.e., the board does not have jurisdiction to consider an alleged departmental decision if there is no written decision in the record. [17] 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 or to have the interpreter services paid as a public expense absent a determination that the worker is indigent. [18] 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. [19] Industrial Insurance — Judicial Review — Decisions Reviewable — Industrial Appeals Judge Decision — Failure To Appeal — Effect. An industrial insurance claimant's failure to petition the Board of Industrial Insurance Appeals for review of an Industrial Appeals Judge's ruling precludes court review of the ruling. [20] Administrative Law — Judicial Review — Appellate Review — Issues Not Raised Previously. An appellate court reviewing an agency order following review by a superior court may decline to consider issues or argument that were not raised before either the agency or the superior court. [21] Industrial Insurance — Administrative Review — Decisions Reviewable — Industrial Appeals Judge Decision — Petition for Review — Sufficiency. Under RCW 51.52.104, a petition for review of an Industrial Appeals Judge's decision must set forth in detail the grounds for appeal. A failure to do so will result in waiver of the issue. [22] Industrial Insurance — Judicial Review — Attorney Fees — Prevailing Party — Department of Labor and Industries — Statutory Attorney Fees. When the Department of Labor and Industries prevails in an action by an industrial insurance claimant for judicial review of an adverse administrative decision, the department may be awarded statutory attorney fees under RCW 4.84.030. 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: After granting the board's motion to intervene, the Superior Court for King County, No. 05-2-37144-7, Michael Hayden, J., on August 24, 2006, entered a judgment affirming the board's decisions. Court of Appeals: Holding that the superior court properly allowed the board to intervene in the action, that neither the law nor the facts supported the plaintiff's claimed wage rate calculation, and that the plaintiff was not entitled to interpreter services for communications with counsel outside of legal proceedings, the court affirms the judgment. Ann Pearl Owen- (of Ann Pearl Owen, PS), for appellant. Robert M. McKenna-, Attorney General, and Masako Kanazawa-, Assistant, for respondent Department of Labor and Industries. Robert M. McKenna-, Attorney General, and Johnna S. Craig- and Spencer W. Daniels-, Assistants, for respondent Board of Industrial Insurance Appeals. ¶1 AGID, J. — Ivan Ferencak, an injured worker with limited English proficiency (LEP), appeals a superior court order granting the Board of Industrial Insurance Appeals (Board) leave to intervene and the court's judgment affirming the Board's decision affirming the decisions of the Department of Labor and Industries (Department). Ferencak challenges the Board's wage calculation, its ruling denying his request for interpreter services for his communications with counsel, and various procedural decisions. But neither the law nor the facts support his wage calculation. And, as we held in Kustura v. Department of Labor & Industries, nonindigent LEP claimants are not entitled to free interpreter services for communications with counsel outside of legal proceedings. FACTS ¶2 Ferencak is an LEP Bosnian immigrant. On March 20, 2002, he injured his right knee in the course of his employment at Travis Industries, Inc. He applied for and the Department allowed a claim for worker's compensation benefits. The Department calculated his total gross wage as $2,199.00 per month, based solely on his hourly wage of $11.50 per hour for a 40 hour week and health care benefits of $175.00 per month. Ferencak appealed this determination and other Department orders paying or adjusting his benefits based on this wage determination. ¶3 In his notices of appeal to the Board, in addition to challenging the wage determination, Ferencak argued that chapter 2.42 RCW, chapter 2.43 RCW, and due process entitled him to interpreter services provided by the Department or the Board for all necessary communications relating to his receipt of benefits, including those with his lawyer and treating physicians. Citing the same authority, he also asked the Industrial Appeals Judge (IAJ) to provide him with an interpreter for all hearings and communications with his attorney. The IAJ granted this request for interpreter services at hearings but not for depositions or confidential communications between Ferencak and his attorney. ¶4 After a hearing, the IAJ issued a proposed decision and order apparently affirming the Department's wage determinations but using different values in the wage calculation reflected in the findings of fact. The IAJ valued Ferencak's health benefits at $197.15. The IAJ also concluded that Ferencak was not entitled to Board-provided interpreter services for communications with his attorney and that the wage calculation properly excluded "employer-paid contributions to social security, Medicare, life and/or disability insurance policies, 401(K) or Money Purchase Pension plans, or . . . industrial insurance and unemployment compensation coverage." ¶5 Ferencak petitioned for review by the Board, challenging the wage determinations; denial of interpreter services for communications with his attorney; and failure to enforce subpoenas designed to obtain evidence showing his overtime pay, rate of pay, and year end bonus payments. The Board affirmed both the Department's original wage calculation and the IAJ's proposed decision and order, including the IAJ's finding of fact related to health care benefit costs that conflicted with the Department's original calculation. The Board also concluded that Ferencak was not entitled to have the Board pay for interpreter services for communications with his attorney and declined to address his claim for denial of translation services at the Department level because there was no written denial of those services in the record. ¶6 Ferencak appealed the Board's decision to the superior court, seeking not only reversal and remand but also reimbursement for interpreter fees from the Board or Department. The Board moved for intervention of right or permissive intervention in the alternative. The court granted the Board's motion to intervene, DISCUSSION I. Intervention ¶10 Ferencak's argument against intervention relies on the holding in Kaiser Aluminum & Chemical Corp. v. Department of Labor & Industries that the Board generally cannot appeal adverse superior court decisions because it is a quasi-judicial agency. ¶11 City of Milford v. Local 1566, II. Wage Calculation A. Health Care Benefits B. Holiday/Vacation Pay C. Bonus If, within the twelve months immediately preceding the injury, the worker has received from the employer at the time of injury a bonus as part of the contract of hire, the average monthly value of such bonus shall be included in determining the worker's monthly wages. Ferencak was injured in March 2002. He claims he received a yearly bonus in December 2001, but there is no evidence of this bonus in the record and he cites none in his opening brief. In his reply brief, he claims that exhibit 14, an e-mail, shows the December 2001 bonus. But this exhibit is not included in the record, and it was admitted during the course of a discussion about the 2002 bonus, suggesting it likely did not reference a 2001 bonus. D. Employer Payments for Government-Mandated General Fund Benefits The term "wages" shall include the reasonable value of board, housing, fuel, or other consideration of like nature received from the employer as part of the contract of hire . . . . We have already determined that Social Security, Medicare, and Industrial Insurance payments cannot be considered in calculating wages under RCW 51.08.178(1). Employers make payments for board, housing, fuel, or health care benefits directly to or on behalf of their employees, so the payments directly benefit the employees. In contrast, employer payments for Social Security, Medicare, and Industrial Insurance go to government programs that provide benefits for all qualified individuals. These payments are not earmarked for a specific employer's employees even though the payment amounts are based on the employees' gross cash wages. The plain language of RCW 51.08.178 requires that any "consideration" must be received from the employer as part of the contract for hire. An employer's mandatory payments for Social Security, Medicare, and Industrial Insurance are not "consideration" for its employees' services and therefore not "wages" under RCW 51.08.178. Even if the payments were "consideration," they are not "consideration of like nature". . . . ¶16 In Erakovic, we declined to consider whether unemployment compensation, another government-mandated general fund employer payment, should be considered in the wage calculation because the injured worker failed to cross-appeal on this issue. E. IAJ's Evidentiary Rulings III. Scope of Review ¶19 The Board refused to consider arguments on appeal related to the Department's English-only communications with Ferencak because the record contained no written copy of a decision by the Department to communicate in English only. Ferencak argues that the Department's repeated use of English-only communications when it knew of his LEP status should be considered an appealable decision within the meaning of RCW 51.52.060 despite the absence of a written decision. Because he provides no authority for this assertion, we decline to consider his argument IV. Interpreter Services V. Statutory Attorney Fees ¶23 Ferencak also requests attorney fees on appeal. Because he has not prevailed on any issue, we deny his request. ¶24 We affirm. BAKER and DWYER, JJ., concur.