KUSTURA v. Dept. of Labor and Industries

233 P.3d 853
CourtWashington Supreme Court
DecidedJune 17, 2010
Docket81478-3, 81480-5, 81481-3, 81758-8, 81759-6
StatusPublished
Cited by37 cases

This text of 233 P.3d 853 (KUSTURA v. Dept. of Labor and Industries) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KUSTURA v. Dept. of Labor and Industries, 233 P.3d 853 (Wash. 2010).

Opinion

233 P.3d 853 (2010)

Hajrudin KUSTURA, Gordana Lukić, Maida Memišević, Petitioners,
v.
DEPARTMENT OF LABOR AND INDUSTRIES, Respondent.
Enver Meštrovac, Petitioner,
v.
Department of Labor and Industries and Board of Industrial Insurance Appeals, Respondents.
Ivan Ferenćak, Petitioner,
v.
Department of Labor and Industries and Board of Industrial Insurance Appeals, Respondents.
Emira Resulović, Petitioner
v.
Department of Labor and Industries, Respondent.
Ferid Mašić, Petitioner
v.
Department of Labor and Industries, Respondent.

Nos. 81478-3, 81480-5, 81481-3, 81758-8, 81759-6.

Supreme Court of Washington, En Banc.

Argued October 20, 2009.
Decided June 17, 2010.

*855 Ann Pearl Owen, Ann Pearl Owen, P.S., Seattle, WA, for Petitioners.

Spencer Walter Daniels, Johnna Skyles Craig, Jay Douglas Geck, Office of the Attorney General, Olympia, WA, Masako Kanazawa, John R. Wasberg, Office of the Attorney General, Seattle, WA, for Respondents.

Christie Lynn Snyder, Nancy Lynn Talner, Sarah A. Dunne, Seattle, WA, Amicus Counsel for ACLU of Washington Foundation.

Pamela Jo DeVet, Franklin Dennis Cordell, Gordon Tilden Thomas & Cordell L.L.P., Seattle, WA Amicus Counsel for ACLU of Washington Foundation & Washington State Court Interpreter and Translator Society.

Kelly Ann Owen, Bellingham, WA, Katherine Frances Laner, Seattle, WA, Patrick Michael Pleas, Wenatchee, WA, Amicus Counsel for Northwest Justice Project.

Paula Tuckfield Olson, Law Office of Paula T. Olson, Tacoma, WA, Amicus Counsel for Washington Self-Insurer Association.

Bryan Patrick Harnetiaux, Michael J. Pontarolo, Spokane, WA, Kelby Dahmer Fletcher, Stokes Lawrence, Seattle, WA, Amicus Counsel for Washington State Association for Justice Foundation & Washington State Trial Lawyers Association Foundation.

George M. Ahrend, Ahrend Law Firm, P.L.L.C., Moses Lake, WA, Amicus Counsel for Washington State Association for Justice Foundation.

J.M. JOHNSON, J.

¶ 1 This case requires us to define the contours of government-paid interpreter services for limited English proficiency (LEP) individuals under chapter 2.43 RCW. Petitioners are all LEP individuals who filed workers' compensation claims with the Department of Labor and Industries (Department). The Department determined each worker's compensation benefit, and petitioners appealed those decisions to the Board of Industrial Insurance Appeals (Board). Petitioners proceeded through the appeals process, raising a variety of claims, including a claim for government-paid interpreter services, for all interactions with the Department and the Board during the workers' compensation claims process. The first Court of Appeals decision to address this claim, Kustura v. Dep't of Labor & Indus., 142 Wash.App. 655, 175 P.3d 1117 (2008), found no right to such expansive interpreter services under chapter 2.43 RCW. Relying on Kustura, the succeeding Court of Appeals decisions came to the same conclusion.

¶ 2 We hold that nonindigent LEP individuals' statutory right to government-paid interpreter services under chapter 2.43 RCW is triggered when a government agency initiates a legal proceeding involving the LEP individual. Here, neither the Department nor the Board initiated a legal proceeding, so the nonindigent petitioners had no statutory right to interpreter services. However, if the Board in its discretion appoints an interpreter to assist an LEP party at an appeal hearing, current regulations require the Board to pay for the interpreter's services, and chapter 2.43 RCW requires the Board to permit the interpreter to translate whenever necessary to assist the LEP individual at the hearing. This provision of interpreter services at a board hearing does not depend on indigency nor does it extend beyond the hearing itself. We affirm the result of the Court of Appeals' decisions in Kustura and the subsequent cases on the scope of the statutory right to government-paid interpreter services.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 This is a civil case, not a criminal case. Petitioners Hajrudin Kustura, Gordana Lukić, Maida Memišević, Enver Meštrovac, Ivan Ferenćak, Emira Resulović, and Ferid Mašić are LEP individuals who speak Bosnian. Each was injured at his or her workplace, and each filed a claim with the Department seeking a workers' compensation award. The Department investigated to determine petitioners' workers' compensation benefits. During the course of the Department's actions, some petitioners received some department-paid interpreter services, but no petitioner received free services for all aspects of the Department's investigation. Petitioners *856 appealed the Department's decisions to a board industrial appeals judge (IAJ). The Department and the Board are separate governmental agencies. Petitioners were not found to be indigent, and all were represented by counsel during the workers' compensation claims process before the Department and the Board.

¶ 4 The IAJ held hearings on the record.[1] Interpreters were provided for the petitioners at these hearings, but interpreter services were not provided by the IAJ for petitioners' communications with counsel and in one case were not provided for some witness testimony. In each case, IAJ decisions were appealed to the full Board, then to the superior court, and, in turn, to the Court of Appeals. The first and lead decision published by the Court of Appeals was Kustura, 142 Wash.App. 655, 175 P.3d 1117.[2]Kustura held that chapter 2.43 RCW did not provide petitioners a statutory right to interpreter services paid for by the government because petitioners were the "initiating" parties of the administrative proceedings and department workers' compensation determinations are not "legal proceedings" within the meaning of RCW 2.43.020(3). Id. at 680, 175 P.3d 1117.

¶ 5 The Kustura decision also held that if the Board, in its discretion, appoints an interpreter at appeal hearings, WAC 263-12-097 and chapter 2.43 RCW require the Board to permit the interpreter to assist throughout the hearing, including translating witness testimony and assisting communication between the LEP individual and his or her attorney. Id. at 681, 175 P.3d 1117. The Court of Appeals decisions in the other cases followed Kustura's analysis and conclusions regarding the proper scope of interpreter services. Meštrovac v. Dep't of Labor & Indus., 142 Wash.App. 693, 176 P.3d 536 (2008); Ferenćak v. Dep't of Labor & Indus., 142 Wash.App. 713, 175 P.3d 1109 (2008); Resulović v. Dep't of Labor & Indus., noted at 144 Wash.App. 1005, 2008 WL 1778229 (2008); Mašić v.

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Bluebook (online)
233 P.3d 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kustura-v-dept-of-labor-and-industries-wash-2010.