Mestrovac v. DEPARTMENT OF LABOR & INDUS. OF STATE

176 P.3d 536, 142 Wash. App. 693
CourtCourt of Appeals of Washington
DecidedJanuary 22, 2008
Docket58200-3-I, 58505-3-I
StatusPublished
Cited by13 cases

This text of 176 P.3d 536 (Mestrovac v. DEPARTMENT OF LABOR & INDUS. OF STATE) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mestrovac v. DEPARTMENT OF LABOR & INDUS. OF STATE, 176 P.3d 536, 142 Wash. App. 693 (Wash. Ct. App. 2008).

Opinion

176 P.3d 536 (2008)

Enver MESTROVAC, Respondent/Cross-Appellant,
v.
DEPARTMENT OF LABOR & INDUSTRIES OF the STATE of Washington and Board of Industrial Insurance Appeals, Appellants/Cross-Respondents.

Nos. 58200-3-I, 58505-3-I.

Court of Appeals of Washington, Division 1.

January 22, 2008.

*538 Johnna Skyles Craig, Spencer Walter Daniels, Office of the Attorney General, Olympia, WA, for Appellant.

John R. Wasberg, Johnna Skyles Craig, Office of the Attorney General, Olympia, WA, Masako Kanazawa, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent,

Ann Pearl Owen, Ann Pearl Owen PS, Seattle, WA, for Respondent/Cross-Appellant.

Bryan Patrick Harnetiaux, Michael J. Pontarolo, Attorneys at Law, Spokane, WA, for Amicus Curiae on behalf of Washington State Trial Lawyers Assn. Foundation.

Paula Tuckfield Olson, Burgess Fitzer PS, Tacoma, WA, for Amicus Curiae on behalf of Wash. Self-Insurers Assoc.

AGID, J.

¶ 1 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

¶ 2 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 *539 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, DLI [the Department], the Board, voc rehab personnel, IME 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.[1]

¶ 3 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.

¶ 4 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. . . .

¶ 5 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.[2]

¶ 6 The lAJ 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 lAJ 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 1AJ also ruled that the value of other employer paid benefits and taxes should be excluded. The lAJ's ruling increased the monthly wage to $2,119.41.

¶ 7 Both Mestrovac and the Department appealed the lAJ's proposed decision to the full Board. The Department challenged the wage computation that included holiday and vacation pay, and Mestrovac challenged the lAJ'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 *540 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.

¶ 8 The Board issued a decision and order agreeing with the lAJ'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.

¶ 9 Mestrovac appealed the Board's order to the superior court.

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Bluebook (online)
176 P.3d 536, 142 Wash. App. 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mestrovac-v-department-of-labor-indus-of-state-washctapp-2008.