John Klor
Wallace Klor & Mann, PC
WSIA Amicus Subcommittee Chair
July 2010
When Non-Indigent Translation Services Are Provided by the Board of Industrial Insurance Appeals or DLI
Kustura, et al v. Department of Labor & Industries
Dckt. No.
81478-3, July 17, 2010
On June 17, 2010, the Washington Supreme Court filed its ruling in Kustura v. Dep’t of Labor & Indus., a case dealing with a non-indigent claimant’s right to government-provided interpretive services at the Department and Board levels. The matter before the Supreme Court actually involved several consolidated cases involving Bosnian claimants, all of whom were represented, with limited English proficiency (LEP).
The Court began its statutory analysis by quoting RCW 2.43.040, under which LEP individuals have a statutory right to government-paid interpreter services when they are involved in legal proceedings initiated by the state. Pursuant to that section, for an LEP individual to have a statutory right to interpreter services at the government’s expense, the government’s action must: (1) be initiated by the government entity, and (2) satisfy the “legal proceeding” definition. Regarding the first requirement, the Court held the claimant’s initiated claims to both the Department and the Board. Thus, neither was initiated by a government entity. Because of this, the Court did not address whether the “legal proceeding” requirement was satisfied. Thus, the Court concluded, an LEP individual does not have a statutory right to government-paid interpretive services at the Department or Board.
Though the Court concluded no statutory right was present, it did find the claimants had a conditional right to interpretive services. In short, if the Board appoints an interpreter to assist an LEP individual in a legal proceeding (i.e. Board hearing), it must provide continuing assistance throughout the remainder of the proceedings. In the case at hand, the Board had appointed interpreters at the hearings, but not during attorney-client communication or witness testimony. Both of these situations were deemed “legal proceedings” and, therefore, a discretionary right to interpretive services was present. The Court specified, however, this right did not extend to hearing preparation, interviews, medical evaluations, and preparing or responding to discovery.
Justice Chambers provided the dissenting opinion, arguing the Industrial Insurance Act should be liberally interpreted in favor of the injured worker. He concluded the Department initiated proceedings against the worker, as RCW 51.28.010(1) obligates employers to notify the Department if a worker has been injured and has received medical treatment. At that point, Justice Chambers concluded, the Department initiates proceedings. Because of this distinction, Justice Chambers felt the requirements of RCW 2.43.040 were satisfied and the claimants had a statutory right to interpreters at the Department and before the Board.
as of 3 August 2010
