CANDELARIO SANCHEZ, Employee/Appellant, v. GREG WELLIK CONSTR., INC., and AUTO-OWNERS INS. GROUP, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 26, 2005

 

No. WC05-108

 

HEADNOTES

 

COSTS & DISBURSEMENTS; STATUTES CONSTRUED - MINN. STAT. ' 176.511, SUBD. 2. Where the employee=s attorney retained an interpreter to assist with communications with his client, and where no court proceedings were held during which the services of an interpreter were required, the compensation judge did not err in determining that the costs for the interpreter=s services were not taxable under Minn. Stat. ' 176.511, subd. 2.

 

Affirmed.

 

Determined by:  Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge:  Gary P. Mesna

 

Attorneys:  Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Appellant.  Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of his petition for reimbursement of costs incurred by his attorney to retain an interpreter in order to prepare the employee=s claim.  We affirm.

 

BACKGROUND

 

On December 31, 2003, Mr. Candelario Sanchez, the employee, sustained an admitted injury to his low back in the course and scope of his employment with Greg Wellick Construction, Inc., the employer.  On that date, the employer was insured for workers= compensation liability by Auto-Owners Insurance Group.   The employer and its insurer paid workers= compensation benefits to and on behalf of the employee, including payment of temporary total disability benefits, medical expenses and rehabilitation expenses.

 

Since the employee does not speak English, the employee=s attorney retained the services of an interpreter to communicate with the employee.  In addition, the employer and insurer paid for the services of an interpreter who provided translation assistance between the employee and the qualified rehabilitation consultant who conducted a rehabilitation evaluation.  During the pendency of the claim, disputes arose concerning continuation of temporary total disability benefits and rehabilitation assistance and also concerning payment for certain rehabilitation expenses.  Following an administrative conference held on June 23, 2004, to address the employer and insurer=s notice of intention to discontinue temporary total disability benefits, a compensation judge determined that no reasonable grounds existed to discontinue those benefits.  Following an administrative conference held on August 3, 2004, to address rehabilitation disputes, a commissioner=s representative determined that the employee remained eligible for rehabilitation services and that certain disputed QRC charges were compensable, and denied the employer and insurer=s request to terminate rehabilitation services.

 

On September 8, 2004, the employee=s attorney filed a statement of attorney fees, requesting Heaton^[1] attorney fees for representation of the employee on the rehabilitation disputes.  In addition, he requested reimbursement of costs related to obtaining medical records, and to charges for an interpreter=s services incurred since April 29, 2004.  The employer and insurer objected to payment of the full amount of attorney fees claimed, and also objected to payment of the costs for the interpreter=s services.  The employer and insurer asserted that the interpretive services represented a business cost that should not be taxed against the employer and insurer.

 

The employer and insurer later appealed from the administrative orders and  requested a formal hearing on the rehabilitation issues; they also filed a petition to discontinue temporary total disability benefits.  By November 2004, the parties reached settlement of the employee=s claims.  Under the terms of the settlement, the employer and insurer paid a lump sum to the employee, and paid for disputed medical expenses and rehabilitation expenses.  In exchange, the employee agreed to a close-out of his future claims for workers= compensation benefits, related to his December 31, 2003, injury, on a full, final and complete basis, with the exception of his claim for future related medical expenses, which remained open.  An award on stipulation was served and filed on December 14, 2004.

 

As part of the stipulation for settlement, the employer and insurer agreed to reimburse costs to the employee=s attorney in the amount of $99.07.  However, the employer and insurer maintained their denial of reimbursement for costs incurred for the interpreter retained by the employee=s attorney for communications with the employee.  The parties agreed to separately litigate that issue and the claim for Heaton fees.  At a hearing before a compensation judge on November 1, 2004, the following issues were addressed:

 

1.Whether the attorney fees incurred for representation of the employee on a rehabilitation dispute were reasonable and should be reimbursed by the employer and insurer; and

 

2.Whether $1,602.20 in costs incurred for a Spanish-speaking  interpreter, retained to assist the attorney and employee in preparing the claim, represented a taxable cost or disbursement.

 

In Findings and Order, served and filed December 24, 2004, the compensation judge ordered $500.00 payable as attorney fees for representation of the employee on the rehabilitation issue.  The compensation judge denied the employee=s attorney=s petition for reimbursement of the interpretive costs.  The compensation judge acknowledged that interpreters for court proceedings are furnished and paid for by the court.  However, the compensation judge concluded that the costs incurred in this case by the employee=s attorney for an interpreter do not represent a taxable cost, as those services were solely for communications between the employee and attorney and not for court proceedings or for communications with the employer and insurer.  The employee=s attorney appeals from the denial of the claim for reimbursement of interpreter costs.

 

STANDARD OF REVIEW

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

On appeal, the employee=s attorney argues that because the employee  prevailed at the administrative conference that was held to address his original rehabilitation dispute, he is entitled to reimbursement of costs such as the disputed interpreter costs.  The employee does not speak English, and his attorney argues that interpreter costs should not be considered as ordinary office expenses but instead are extraordinary expenses and, as such, should be reimbursed by the employer and insurer.  The employee=s attorney argues that the intent of the workers= compensation system is to offer equal access to the courts, including to non-English speaking claimants, so it was necessary for him to retain the services of a Spanish-speaking interpreter.

 

Minn. Stat. ' 176.511, subd. 2, provides that a compensation judge or, on appeal, the Workers= Compensation Court of Appeals, Amay award the prevailing party reimbursement for actual and necessary disbursements.@  The costs may be awarded to the prevailing party if they were necessary and reasonably related to the party=s successful prosecution of the case.  See Lamb v. Allina Health Sys., 62 W.C.D. 633 (W.C.C.A. 2002).  Ordinary costs of running an office are not disbursements within the meaning of Minn. Stat. ' 176.511, subd. 2.  Iverson v. Coop Country Farmers Elevator, 46 W.C.D. 503 (W.C.C.A. 1992); Sorenson v. Pan-O-Gold Baking Co., 35 W.C.D. 944 (W.C.C.A. 1982).  For example, office overhead expenses, such as rent, lights, equipment costs, secretarial costs, photocopying costs, telephone expenses, postage and other office-related items are considered as overhead expenses and are not reimbursable.  Other professional expenses that are generally not reimbursable include Athe ordinary costs of investigation and handling, traveling to hearings and so forth [that] are part and parcel of the obligations of the attorney in handling the matter for his client in the ordinary course of events.@  Sorenson, 35 W.C.D. at 946.  In addition, travel-related expenses are not reimbursable unless the expense becomes extraordinary.  Kisler v. Michigan Peat, slip op. (W.C.C.A. July 3, 1991).  Allowances may be made for certain extraordinary expenses if those seem reasonable under the circumstances of a particular case.  Woldmoe v. Knight Ridder, slip op. (W.C.C.A. Sept. 16, 1999).

 

This is a case of first impression before this court.  The Workers= Compensation Act is silent in regard to whether costs incurred by an attorney for the services of an interpreter unrelated to appearances at court proceedings such as depositions, administrative conferences and hearings, may be taxed to the employer and insurer.  The Department of Labor and Industry (DOLI), as well as the Office of Administrative Hearings (OAH), Workers= Compensation Division, historically have provided for interpreters to be present at court hearings, and the compensation judge in this case specifically referred to the payment, by the Office of Administrative Hearings, for interpreters who assist with court proceedings.^[2]  In this case, however, no formal court hearings were held where the services of an interpreter were necessary, and the compensation judge determined that the claimed interpretive costs were related to communications between the employee and his attorney and were not directly related to court proceedings.  In his memorandum, the compensation judge stated that:

 

The court is not persuaded that the fees for the Spanish interpreter are the type of cost or disbursement that may be assessed against the employer and insurer.  . . . It should be noted that the interpreter was used for communications solely between the employee and his attorney and not for court proceedings or for communication with the employer and insurer.  Of course, interpreters for court proceedings are furnished and paid by the court.

 

(Memo., p. 3.)

 

A compensation judge has  discretion to determine whether disbursements are directly related to successfully pursuing an issue on which the employee prevailed.  See Hodgin v. Ford Motor Co., 341 N.W.2d 567, 36 W.C.D. 423 (Minn. 1983).  The determination of whether a cost was necessary and reasonably related to the issues upon which the party prevailed is a fact question left to the discretion of the compensation judge.  Lamb v. Allina Health Sys., 62 W.C.D. 633, 636 (W.C.C.A. 2002), citing to Brochu v. U.S. Steel Corp., 27 W.C.D. 417 (W.C.C.A. 1974), aff=d on other grounds, 237 N.W.2d 833, 28 W.C.D. 270 (Minn. 1976).  In view of the evidence of record, it was not unreasonable for the compensation judge to determine that the claimed interpreter=s costs are not taxable under Minn. Stat. ' 176.511, subd. 2, and we therefore affirm the compensation judge=s denial of the employee=s attorney=s claim for reimbursement of those costs.

 

The employee=s attorney argues that, at a minimum, the employer and insurer should pay for the interpreter=s charge for remaining Aon-call@ for one hour during an administrative conference.  (See Exh.  2, which lists a one-hour charge on August 3, 2004.)  The interpreter testified that she was asked to be available for a telephone hearing, to interpret for the employee, if needed, and that even though she was not contacted by telephone during the conference as anticipated, she was not able to work elsewhere during that hour.  The employer and insurer argue that although the interpreter was Astanding by@ for a court-mandated conference, that fact does not make her services necessary for the presentation of evidence.  Instead, they argue, the purpose of retaining the services of an interpreter was for the ease of operating the employee=s attorney=s business.

 

The record contains no substantiation of any requirement by a compensation judge that the interpreter remain on call during the August 3, 2004, conference.  In addition, discussions during administrative conferences are not recorded, so the record available for our review on appeal contains no further reference to any requirement by the Office of Administrative Hearings for an interpreter=s services during that conference.  Based on the evidence of record, the compensation judge did not err by disallowing reimbursement for the interpreter=s charge for remaining on-call for one hour during the August 3, 2004, administrative conference.

 

The employee=s attorney also argues that he cannot hire an interpreter to be a member of his law firm staff, since interpreters are required to work in a neutral and non-advocacy role, and therefore interpreter costs should be considered as extraordinary and necessary expenses.  To bolster his argument concerning the requirement of neutrality, he submitted an affidavit signed by the interpreter, attesting that she was bound by the Code of Professional Responsibility for Interpreters in the Minnesota State Court System and its requirement that interpreters remain impartial and unbiased.  We recognize that the code of professional responsibility applies to all persons who administer, supervise, use or deliver interpreting services within the Minnesota state court system.  We see no reason, however, why an attorney is prohibited from independently hiring an interpreter to assist with client communications outside of the court system.