January 2008
LEGAL ISSUES UPDATE
WSIA Amici Help Win Court Victory:
Current Requirements for Interpreter/Translation Services
are Constitutionally Sufficient
by Paula T. Olson, Burgess Fitzer, P.S.
Last year, several workers’ compensation claimants who did not speak English sought reimbursement for interpreter and translation services beyond what is required under current law and regulations. In one case, the claimants contended that failure to provide all written communications in their native language violated their due process rights, that Spanish speaking claimants were treated preferentially, and that the Department was required to provide services for all aspects of the claim process in the Department. The cases were consolidated into two separate appeals before Division One (Seattle) of the Washington State Court of Appeals, and decided in January 2008.
The common issue in these cases most significant to WSIA members was whether non-English speaking workers’ compensation claimants are entitled to more interpreter/translation services than are already provided by statute and regulations. The claimants enlisted the amicus assistance of several major plaintiff and public service organizations. WSIA filed an amicus brief on behalf of its members and to support the position of the Board and Department. The Court of Appeals in both cases held that the current regulations for non-English speaking claimants are constitutionally sufficient.
In Kustura, Lukic, and Memisevic v. Dept. of L & I, No. 57445-1-I, the non-English speaking claimants raised several issues pertaining to the sufficiency of the Department and Board translation and interpreter services. In its published decision, the Court of Appeals upheld the trial court’s decision that the Board was only responsible for interpreter services for proceedings during the formal hearing, not for all communications with their attorneys.
The Court of Appeals ruled that the claimants did not have a constitutional right to have all orders issued in their native language and struck down the claimants’ attempt to excuse their late filed appeals of Departmental decisions because the orders were issued in English. The Court observed that the claimants had access to interpreters and translators, had assistance of counsel, were not completely illiterate, and could not explain why they could manage other aspects of the claim process in English but not timely appeals. The Court relied on federal and state case law to find that the constitutional principle of due process only required notices to be “reasonably calculated” to tell the claimants what they need to know to process their claims.
The appellate court also rejected the claimants’ attempt to adopt a very broad interpretation of RCW 2.43.040(2) and (3), which requires interpretation for “legal proceedings.” The claimants contended that phrase includes all stages of Departmental and Board proceedings. The Court held that a Department action was not a court proceeding or a hearing before a judge or agency as described in the statute and was therefore not subject to interpreter requirements. Further, RCW 2.43.040 requires that the “initiating” government body must pay for those services. Since the Board does not initiate the appeal, it is not required to pay those services, unless and until the claimant proves indigence. The Court observed that, once the Board appoints an interpreter, s/he must translate for all aspects of the hearing on the record.
The Court did not accept the equal protection arguments raised by the claimants, who argued that Spanish speaking claimants were treated better. The court held that language was not the same as national origin on which to base an equal protection discrimination argument. The court noted that English and Spanish are the primary languages in Washington and in the United States.
The fact that the Department of Health and Social Services gives more interpreter benefits to its claimants than L & I is not unconstitutional, as the difference between the state’s treatment of non-English speaking claimants must simply be rationally based and free from invidious discrimination.
In Mestrovac v. Dept. of L & I, No. 58200-3-I, the Board appealed a King County Superior Court order requiring the Board to reimburse the Bosnian claimant, not fluent in English, for the cost of interpreter services for communications with his attorney. Using the Kustura case as precedent, the Court reversed the trial court’s decision as beyond the requirements of due process.
There is a possibility that the claimants may appeal to the Washington State Supreme Court, however, the strength and breadth of the Court of Appeals’ opinions will make that an up-hill battle.
It remains to be seen if the Department or the Board will make any revisions to the interpreter/translation requirements based on these decisions. If so, it will only be to reduce them.
as of 1/30/2008
