Almalhi, Asad v. Indmar Products Co., Inc.

2024 TN WC App. 33
CourtTennessee Workers' Compensation Appeals Board
DecidedSeptember 10, 2024
Docket2023-08-1216
StatusPublished

This text of 2024 TN WC App. 33 (Almalhi, Asad v. Indmar Products Co., Inc.) is published on Counsel Stack Legal Research, covering Tennessee Workers' Compensation Appeals Board primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Almalhi, Asad v. Indmar Products Co., Inc., 2024 TN WC App. 33 (Tenn. Super. Ct. 2024).

Opinion

FILED Sep 10, 2024 11:40 AM(CT) TENNESSEE WORKERS' COMPENSATION APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD

Asad Almalhi ) Docket No. 2023-08-1216 ) v. ) State File No. 36624-2022 ) Indmar Products Co., Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Shaterra R. Marion, Judge )

Reversed and Remanded

This interlocutory appeal presents an issue of first impression. The employer asserts the trial court erred in ordering it to hire a certified or state-registered translator to translate certain written discovery requests into the employee’s first language. The employee asserts that although he has certain proficiency in the English language, he remains concerned that he may have misunderstood the discovery requests and therefore could have erred in responding to them. The employer asserts that there is no rule or statute that mandates they pay to have written documents used in the scope of litigation translated into another language. Upon careful consideration of the record, we reverse the trial court’s order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

Gregory H. Fuller and Houston M. Gunn, Brentwood, Tennessee, for the employer- appellant, Indmar Products Co., Inc.

Asad Almalhi, Memphis, Tennessee, employee-appellee, pro se

Timothy P. Kellum, Nashville, Tennessee, for the appellee, Subsequent Injury and Vocational Recovery Fund

Factual and Procedural Background

This case presents an issue of first impression. Although certain rules give the Court of Workers’ Compensation Claims the authority to order an employer to retain a

1 certified interpreter to attend hearings and assist in the interpretation of spoken words into an employee’s first language, there are no rules, regulations, or statutes that address whether an employer has an obligation to hire a certified translator to translate written documents used in the scope of litigation into the employee’s first language or translate an employee’s written documents into English for filing with the court.

In the present case, Asad Almalhi (“Employee”), whose first language is Arabic, worked as a welder for Indmar Products Co., Inc. (“Employer”). Employee asserted he was injured on or about May 24, 2022, when he was exposed to excessive heat, fumes, smoke, and loud noises at work. Prior to the filing of the current appeal, certain evidence was submitted to the trial court indicating Employee had applied to become a naturalized United States citizen and had passed English proficiency requirements. On his original petition for benefits, signed and filed on February 17, 2023, Employee marked that he did not require an interpreter. He also completed and signed a Rule 72 Declaration in English summarizing his factual assertions. 1

On August 26, 2023, Employee filed a motion asking the court to order an “Arabic Interpreter” to be present at an upcoming hearing. Employee asserted that he needed “to make sure I’ll understand the conversation properly.” The record contains no order specifically addressing this motion, but the court’s September 19 Status Hearing Order indicated that an interpreter was present. This order also reflected, however, that Employer noted Employee had not requested an interpreter for his deposition, and Employee apparently agreed that he had understood “almost 100%” of the deposition questions. In a subsequent order setting an expedited hearing, the court ordered Employer to provide an Arabic interpreter for the expedited hearing.

Due to various circumstances, including inclement weather on the original date set for the expedited hearing, the court reset the hearing and again ordered Employer to provide an Arabic interpreter. Several months later, after having responded to some written discovery requests, Employee filed a motion asking the court to order Employer to translate “all documents into Arabic language, including the first request for Admission and Interrogatory [sic] propounded to employee.” In support of this request, he asserted he needed to “understand complet[e]ly” those documents. 2

Employer objected to Employee’s motion for translation of the written documents into Arabic. It argued Employee had not requested the translation of these documents into Arabic when the discovery requests were sent, before he served his original

1 Although the Rule 72 Declaration is handwritten, it is unclear whether Employee himself wrote the statement. However, his signature appears on all three pages of the Declaration. 2 Generally, “interpretation” refers to spoken words, and “translation” refers to written words. See, e.g., “What’s the Difference Between a Translator and an Interpreter,” https://www.atanet.org/client- assistance/whats-the-difference-between-a-translator-and-an-interpreter/ (last visited Sept. 9, 2024). 2 responses, or when the expedited hearing was originally set. It also noted that, although Tenn. Comp. R. and Regs. 0800-02-21-.13(3) gives a trial court the authority to order an employer to provide state-certified interpreters for hearings, there was no comparable rule or regulation addressing the translation of written documents. Moreover, it asserted that Employee’s request for the translation of “all documents” was overbroad, onerous, and prejudicial to Employer. 3

In an April 24, 2024 order, the trial court denied Employee’s motion for the translation of written documents, reasoning that Employee had cited to no “rule, case, or statute supporting his motion.” Thereafter, Employee filed a “Motion to Set Aside Order Denying Motion to Translate,” which the trial court treated as a motion for reconsideration of its prior order. In support of this motion, Employee included a copy of an order from another trial court ordering the translation of certain documents. He also included a Rule 72 Declaration asserting he is “limited [in] reading and speaking English” and that he wants to “understand all documents” before answering any questions. 4

Thereafter, the court entered an order granting Employee’s motion to set aside its previous order and compelling Employer to provide certified translations of the interrogatories, requests for production of documents, and requests for admissions. The trial court first reasoned that although there is no applicable rule or regulation addressing the translation of written documents, the Workers’ Compensation Law gives the court the general authority to “make orders, decisions, and determinations” in the context of determining claims for compensation. See Tenn. Code Ann. § 50-6-238(a)(3). Second, the court noted the concerns expressed by the Tennessee Court of Appeals that “litigants can be ‘partially or completely excluded from full participation in the proceedings due to limited English proficiency (“LEP”).’” See Sud v. Man Keng Ho, No. E2011-01555- COA-R3-CV, 2012 Tenn. App. LEXIS 213, at *20-21 (Tenn. Ct. App. Mar. 30, 2012) (citing Tenn. Sup. Ct. R. 41) (“It is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier.”). Third, citing a case from the Tennessee Court of Criminal Appeals, the trial court concluded it had a duty to “determine whether a participant in a legal proceeding has a limited ability to understand and communicate in English.” See State v. Serghei, No. M2021-00776-CCA-R3-CD, 2022 Tenn. Crim. App. LEXIS 411, at *12 (Tenn. Ct. Crim. App. Sept. 15, 2022).

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Bluebook (online)
2024 TN WC App. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almalhi-asad-v-indmar-products-co-inc-tennworkcompapp-2024.