Almalhi, Asad v. Indmar Products Co., Inc.

FILED

Sep 10, 2024

11:40 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Asad Almalhi ) Docket No. 2023-08-1216

)

v. ) State File No. 36624-2022

)

Indmar Products Co., Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Shaterra R. Marion, Judge )

Reversed and Remanded

This interlocutory appeal presents an issue of first impression. The employer asserts the

trial court erred in ordering it to hire a certified or state-registered translator to translate

certain written discovery requests into the employee’s first language. The employee

asserts that although he has certain proficiency in the English language, he remains

concerned that he may have misunderstood the discovery requests and therefore could

have erred in responding to them. The employer asserts that there is no rule or statute

that mandates they pay to have written documents used in the scope of litigation

translated into another language. Upon careful consideration of the record, we reverse

the trial court’s order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which

Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

Gregory H. Fuller and Houston M. Gunn, Brentwood, Tennessee, for the employer-

appellant, Indmar Products Co., Inc.

Asad Almalhi, Memphis, Tennessee, employee-appellee, pro se

Timothy P. Kellum, Nashville, Tennessee, for the appellee, Subsequent Injury and

Vocational Recovery Fund

Factual and Procedural Background

This case presents an issue of first impression. Although certain rules give the

Court of Workers’ Compensation Claims the authority to order an employer to retain a

1

certified interpreter to attend hearings and assist in the interpretation of spoken words

into an employee’s first language, there are no rules, regulations, or statutes that address

whether an employer has an obligation to hire a certified translator to translate written

documents used in the scope of litigation into the employee’s first language or translate

an employee’s written documents into English for filing with the court.

In the present case, Asad Almalhi (“Employee”), whose first language is Arabic,

worked as a welder for Indmar Products Co., Inc. (“Employer”). Employee asserted he

was injured on or about May 24, 2022, when he was exposed to excessive heat, fumes,

smoke, and loud noises at work. Prior to the filing of the current appeal, certain evidence

was submitted to the trial court indicating Employee had applied to become a naturalized

United States citizen and had passed English proficiency requirements. On his original

petition for benefits, signed and filed on February 17, 2023, Employee marked that he did

not require an interpreter. He also completed and signed a Rule 72 Declaration in

English summarizing his factual assertions. 1

On August 26, 2023, Employee filed a motion asking the court to order an “Arabic

Interpreter” to be present at an upcoming hearing. Employee asserted that he needed “to

make sure I’ll understand the conversation properly.” The record contains no order

specifically addressing this motion, but the court’s September 19 Status Hearing Order

indicated that an interpreter was present. This order also reflected, however, that

Employer noted Employee had not requested an interpreter for his deposition, and

Employee apparently agreed that he had understood “almost 100%” of the deposition

questions. In a subsequent order setting an expedited hearing, the court ordered

Employer to provide an Arabic interpreter for the expedited hearing.

Due to various circumstances, including inclement weather on the original date set

for the expedited hearing, the court reset the hearing and again ordered Employer to

provide an Arabic interpreter. Several months later, after having responded to some

written discovery requests, Employee filed a motion asking the court to order Employer

to translate “all documents into Arabic language, including the first request for

Admission and Interrogatory [sic] propounded to employee.” In support of this request,

he asserted he needed to “understand complet[e]ly” those documents. 2

Employer objected to Employee’s motion for translation of the written documents

into Arabic. It argued Employee had not requested the translation of these documents

into Arabic when the discovery requests were sent, before he served his original

1

Although the Rule 72 Declaration is handwritten, it is unclear whether Employee himself wrote the

statement. However, his signature appears on all three pages of the Declaration.

2

Generally, “interpretation” refers to spoken words, and “translation” refers to written words. See, e.g.,

“What’s the Difference Between a Translator and an Interpreter,” https://www.atanet.org/client-

assistance/whats-the-difference-between-a-translator-and-an-interpreter/ (last visited Sept. 9, 2024).

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responses, or when the expedited hearing was originally set. It also noted that, although

Tenn. Comp. R. and Regs. 0800-02-21-.13(3) gives a trial court the authority to order an

employer to provide state-certified interpreters for hearings, there was no comparable rule

or regulation addressing the translation of written documents. Moreover, it asserted that

Employee’s request for the translation of “all documents” was overbroad, onerous, and

prejudicial to Employer. 3

In an April 24, 2024 order, the trial court denied Employee’s motion for the

translation of written documents, reasoning that Employee had cited to no “rule, case, or

statute supporting his motion.” Thereafter, Employee filed a “Motion to Set Aside Order

Denying Motion to Translate,” which the trial court treated as a motion for

reconsideration of its prior order. In support of this motion, Employee included a copy of

an order from another trial court ordering the translation of certain documents. He also

included a Rule 72 Declaration asserting he is “limited [in] reading and speaking

English” and that he wants to “understand all documents” before answering any

questions. 4

Thereafter, the court entered an order granting Employee’s motion to set aside its

previous order and compelling Employer to provide certified translations of the

interrogatories, requests for production of documents, and requests for admissions. The

trial court first reasoned that although there is no applicable rule or regulation addressing

the translation of written documents, the Workers’ Compensation Law gives the court the

general authority to “make orders, decisions, and determinations” in the context of

determining claims for compensation. See Tenn. Code Ann. § 50-6-238(a)(3). Second,

the court noted the concerns expressed by the Tennessee Court of Appeals that “litigants

can be ‘partially or completely excluded from full participation in the proceedings due to

limited English proficiency (“LEP”).’” See Sud v. Man Keng Ho, No. E2011-01555-

COA-R3-CV, 2012 Tenn. App. LEXIS 213, at *20-21 (Tenn. Ct. App. Mar. 30, 2012)

(citing Tenn. Sup. Ct. R. 41) (“It is essential that the resulting communication barrier be

removed, as far as possible, so that these persons are placed in the same position as

similarly situated persons for whom there is no such barrier.”). Third, citing a case from

the Tennessee Court of Criminal Appeals, the trial court concluded it had a duty to

“determine whether a participant in a legal proceeding has a limited ability to understand

and communicate in English.” See State v. Serghei, No. M2021-00776-CCA-R3-CD,

2022 Tenn. Crim. App. LEXIS 411, at *12 (Tenn. Ct. Crim. App. Sept. 15, 2022).

Finally, the court reasoned that “employers are generally better able to absorb the cost of

translation,” and it ordered Employer to pay those costs “in accord with Tennessee

3

For its part, the Subsequent Injury and Vocational Recovery Fund indicated that it “has no objections to

[E]mployee’s motions.”

4

On May 6, 2024, Employee filed a Notice of Appeal with us arguing that the trial court had erred in not

granting his motion for written translation of documents. However, on May 7, 2024, we dismissed that

appeal as untimely. See Tenn. Comp. R. & Regs. 0800-02-22-.01(1)(a).

3

Supreme Court Rule 42,” suggesting that any translator retained by Employer would be

required to accept fees in accordance with that rule. Employer has appealed.

Standard of Review

The standard we apply in reviewing the trial court’s decision presumes that the

court’s factual findings are correct unless the preponderance of the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2023). When the trial judge has had the

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give

considerable deference to factual findings made by the trial court. Madden v. Holland

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

deference need be afforded the trial court’s findings based upon documentary evidence.”

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and

application of statutes, rules, and regulations are questions of law that are reviewed de

novo with no presumption of correctness afforded the trial court’s conclusions. See

Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013).

We are also mindful of our obligation to construe the workers’ compensation statutes

“fairly, impartially, and in accordance with basic principles of statutory construction” and

in a way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-

6-116 (2023).

Analysis

In its notice of appeal, Employer raises three issues: (1) whether the trial court

erred in determining it had the authority to amend its previous order; (2) whether the trial

court erred in finding that Employee is entitled to the translation of written documents;

and (3) whether the trial court erred in determining Employer is responsible to arrange

and pay for such translation services.

Authority to Amend Interlocutory Orders

Employer’s argument that the trial court had no authority to set aside its

interlocutory order hinges on its contention that Tennessee Rule of Civil Procedure 60.02

“governs motions for relief from interlocutory orders.” That assertion, however, is not

supported by Tennessee law, which draws a clear distinction between interlocutory orders

and final orders. In Discover Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012), for

example, the Tennessee Supreme Court addressed standards for granting or denying

motions for default judgment. The Court explained as follows:

Today we clarify that when a party seeks relief from a default judgment due

to “excusable neglect,” whether pursuant to Rule 54.02 (for interlocutory

judgments), Rule 59.04 (for final judgments within thirty days of entry), or

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Rule 60.02 (for final judgments more than thirty days after entry), a

reviewing court must first determine whether the conduct precipitating the

default was willful.

Id. at 493-94; see also Jahen v. AER Express, Inc., No. E2022-00344-COA-R3-CV, 2023

Tenn. App. LEXIS 234, at *11 (Tenn. Ct. App. June 6, 2023). Thus, the Court made

clear that interlocutory orders are not treated the same as final judgments.

Moreover, the Supreme Court has acknowledged that “non-final” orders are

“subject to revision until [they are] expressly made final.” Harris v. Chern, 33 S.W.3d

741, 744 (Tenn. 2000). We have discussed the non-finality of interlocutory orders in

several prior opinions. See, e.g., Love v. Love Mgmt., Inc., No. 2020-06-0102, 2022 TN

Wrk. Comp. App. Bd. LEXIS 9, at *28 (Tenn. Workers’ Comp. App. Bd. Feb. 23, 2022)

(Conner, J., concurring) (“[T]he trial court’s order is interlocutory in nature and ‘is

subject to revision at any time prior to the entry of the judgment adjudicating all the

claims and the rights and liabilities of all the parties.’”) (quoting Tenn. R. Civ. P. 54.02).

Therefore, it is Rule 54.02, not Rule 60.02, that governs interlocutory orders, and that

rule provides that interlocutory orders are subject to revision regardless of the conditions

set out in Rule 60.02. Thus, we conclude Employer’s first issue is without merit.

Translation of Written Documents Used in Litigation

We will address Employer’s remaining issues together. The critical issue is

whether the Court of Workers’ Compensation Claims has the statutory or regulatory

authority to order an employer to hire a certified translator to translate documents used in

the course of litigation for a party asserting limited English proficiency. A corollary issue

is whether the Rules of the Tennessee Supreme Court addressing interpretation and

translation in the scope of litigation apply to the state’s workers’ compensation courts.

Rules 41 and 42 of the Rules of the Tennessee Supreme Court address “Ethics for

Spoken Foreign Language Interpreters in Tennessee Courts” and “Standards for Court

Interpreters,” respectively. Rule 42, section 1, states that the rule “shall apply to all

courts in this state, including without limitation, municipal court, general sessions court,

juvenile court, probate court, circuit court, chancery court, criminal court, and the

appellate courts.” This expansive language could suggest that the rule applies to the

Tennessee Court of Workers’ Compensation Claims and the Workers’ Compensation

Appeals Board. Unfortunately, however, this question is not so easily answered. Section

7 of Rule 42 establishes a compensation scheme for interpreters and translators

administered by the Administrative Office of the Courts (“AOC”). 5 Thus, under Rule 42,

5

The Administrative Office of the Courts was created to perform administrative functions for judicial

branch courts under the authority of the Tennessee Supreme Court. See Tenn. Code Ann. § 16-3-501 et

seq.; see also Moore-Pennoyer v. State, 515 S.W.3d 271 (Tenn. 2017) (stating “the AOC performs very

important functions in the Judicial Department of Tennessee”).

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it is the AOC, not one of the parties, that bears the costs associated with litigation-related

interpretation and translation services. Yet, there is no statute, rule, or regulation

bringing the Court of Workers’ Compensation Claims or the Workers’ Compensation

Appeals Board within the ambit of the AOC. Hence, without specific authority from the

Tennessee Supreme Court, we conclude there is no mechanism by which a workers’

compensation judge could order the services of an interpreter or translator and submit

invoices for such services to the AOC. As a result, we conclude that the state’s workers’

compensation courts are not included within the scope of Rules 41 and 42 of the Rules of

the Tennessee Supreme Court.

Thus, if the Rules of the Supreme Court do not provide authority in support of the

trial court’s order in this case, we must next consider whether the Workers’

Compensation Law or applicable rules and regulations provide such authority. We have

found no statute in the Workers’ Compensation Law that addresses the issues of

interpretation and/or translation of documents, and no such statute has been cited to us.

However, there is a rule applicable to the Court of Workers’ Compensation Claims that

addresses the interpretation of spoken words. Tenn. Comp. R. and Regs. 0800-02-21-

.13(3) states:

The employer or their counsel must arrange for court-approved interpreters

at all hearings. The interpreters must be either (1) state-certified court

interpreters or (2) state-registered court interpreters. In areas where state-

certified or state-registered court interpreters are unavailable, the judge may

waive this requirement.

Although this rule places the burden on employers or their insurers to bear the expense of

retaining an interpreter for hearings in which an interpreter is needed, this rule is silent as

to who determines the need for an interpreter in any given case. This rule is also silent as

to what, if any, circumstances could support an order for the translation of written

documents. Hence, we conclude that the rules applicable to the Court of Workers’

Compensation Claims provide no guidance with respect to whether a trial court can order

an employer to arrange for and bear the expense of a translator.

The cases cited in the trial court’s order also do not provide meaningful guidance

regarding an order for translation. In Sud v. Man Keng Ho, a judgment was entered

against the purported guarantor of a lease. Sud, 2012 Tenn. App. LEXIS 213, at *2. The

guarantor spoke little to no English, and as such, the trial court allowed a co-defendant,

who was a tenant on the lease, to serve as the interpreter at the hearing. Id. at *3-4. The

Court of Appeals reversed the judgment and ordered a new trial, concluding the co-

defendant was not certified as an interpreter and had a financial interest in the outcome.

Id. at *20-21. Furthermore, the criminal case cited by the trial court involved a hearing in

which a defendant whose first language was Russian was not provided an interpreter

despite his request for one. State v. Serghei, No. M2021-00776-CCA-R3-CD, 2022

6

Tenn. Crim. App. LEXIS 411 (Tenn. Ct. Crim. App. Sept. 15, 2022). In short, neither

case addresses the issue at hand.

Finally, we must consider whether the trial court’s order is supported by the

general statutory authority granted to the Court of Workers’ Compensation Claims to

conduct hearings and control the pace of litigation. As we have noted recently,

The Tennessee Court of Workers’ Compensation Claims is a court of

statutorily defined, limited jurisdiction. The court was created as of July 1,

2014, to have “original and exclusive jurisdiction over all contested claims

for workers’ compensation benefits.” Tenn. Code Ann. § 50-6-237. Judges

on the Court of Workers’ Compensation Claims are granted authority to

“hear and determine claims for compensation, to approve settlements of

claims for compensation, to conduct hearings, and to make orders,

decisions, and determinations.” Tenn. Code Ann. § 50-6-238(a)(3).

Martinez v. ACG Roofing, Inc., No. 2021-08-0059, 2023 TN Wrk. Comp. App. Bd.

LEXIS 31, at *10-11 (Tenn. Workers’ Comp. App. Bd. July 12, 2023). Hence, the

critical question is whether a trial court’s general authority “to make orders, decisions,

and determinations,” as stated in Tennessee Code Annotated section 50-6-238(a)(3),

encompasses the type of authority at issue in this case. However, for the reasons noted

below, we conclude we need not reach this broader question.

Here, Employee indicated in his original petition that he did not need an

interpreter. He attended a deposition and answered all questions without requesting an

interpreter. He received Employer’s interrogatories and requests for production of

documents and served responses in English without seeking Employer’s assistance with

translation. He has not asserted those responses were deficient in some way due to a

language barrier. In addition, Employer submitted information to the court suggesting

that Employee had passed English proficiency requirements for the naturalization

process, and the record contains no response from Employee refuting such assertions.

Finally, in his motion seeking the translation of “all documents” into Arabic, Employee

did not explain in any detail his need for the translations. His request was supported only

by his statement, handwritten in English, that he wanted “[t]o understand complet[e]ly.”

During the motion hearing, with an interpreter available to assist, Employee did not

specify any discovery requests that were unclear due to a language barrier.

In short, under the particular circumstances presented in this case, we conclude

Employee did not come forward with any evidence to support the court’s order

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compelling Employer to arrange and pay for the translation of written documents used in

the context of litigation. 6

Conclusion

For the foregoing reasons, we reverse the trial court’s order and remand the case.

Costs on appeal are taxed to Employee.

6

Should Employee have specific questions or concerns regarding the correct translation of written

materials, he may seek clarification from Employer or file a motion asking the trial court to set a hearing

with an interpreter present during which he can seek assistance in resolving any ambiguities.

8

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Asad Almalhi ) Docket No. 2023-08-1216

)

v. ) State File No. 36624-2022

)

Indmar Products Co., Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Shaterra R. Marion, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 10th day

of September, 2024.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Houston M. Gunn X hmgunn@mijs.com

Gregory H. Fuller ghfuller@mijs.com

nlevy@mijs.com

Asad Almalhi X asadalmalhi@yahoo.com

Timothy Kellum X timothy.kellum@tn.gov

Shaterra R. Marion, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov