WA court orders appointment of counsel under ADA for admin proceeding

05/25/2015, Litigation, Benefits - Claimant

The Northwest Justice Project (NJP) successfully pursued a right to counsel claim for a workers compensation claimant in an administrative proceeding before the state Board of Industrial Insurance Appeals (BIIA, which is the Washington Workers Compensation tribunal).  The right to counsel was based on his need for a “representational accommodation” under the Americans with Disabilities Act (ADA) for his mental disability.  


The case, Weems v. State Board, arose from the BIIA’s denial of benefits to the claimant after a series of proceedings before the tribunal in which several references were made to his need for counsel and his inability to represent himself based on his inability to follow the proceeding, inability to read and understand the documents, anger management problem, and other difficulties. Initially, the trial court granted his request for counsel in the administrative proceeding under Washington’s unique General Court Rule 33, which provides for appointment of counsel in proceedings before Washington courts in order to accommodate a person’s inability to obtain meaningful access to justice based on his disability. However, GR 33 expressly only applies to court proceedings and not to administrative agency proceedings. Upon reconsideration, in which the state BIIA argued that there is no statutory or constitutional right to appointed counsel in BIIA proceedings, and no resources have been appropriated from which to pay counsel, the trial court vacated its order mandating appointment.

In an unpublished decision, the Washington Court of Appeals remanded the case back to the trial court for entry of appropriate Findings of Fact and Conclusions of Law based on the applicable analytical framework under the ADA and Washington Law Against Discrimination (WLAD).  Importantly, the Court of Appeals did not reject a right to a representational accommodation under the ADA or WLAD but stated that more specific factual findings were needed under the analytical framework that applies to such claims.  On remand NJP represented the claimant and demonstrated how the applicable ADA/WLAD framework applied to the evidence of the claimant’s disability and need for a “representational accommodation” based on the existing record of proceedings before the BIIA tribunal.

On May 22, 2015, the trial court entered Findings of Fact and an Order remanding the case to the BIIA for new proceedings on the claim and requiring that counsel be appointed to represent the claimant.  The BIIA initially appealed that order, but then dismissed its appeal.


To see docs from the case, check out the NCCRC's comprehensive bibliography entry on Weems.


Nccrc_involvement_icon NCCRC provided some research assistance to one of the amici at the Court of Appeals level.