Interpreters Are Part Of Treatment

Guitron v. Santa Fe Extruders (2011) [en banc]: Out of nowhere the WCAB has issued an en banc decision which might just settle one of the longest running debates in recent memory. In an unanimous Opinion the Commissioners have concluded that under Labor Code section 4600 an employer is required to provide interpreting services during medical treatment appointments. The Commissioners analogized to transportation costs which are allowable under the same section. The Opinion, while proclaiming itself to not be “all-inclusive” on the issue of interpreting fees for medical treatment visits, definitively gives litigants a roadmap to determine the most common issues. Unfortunately, the battle will now be shifting from the threshold compensability issue to the more difficult one of reasonable rate.

The WCAB set forth four elements which an interpreting lien claimant must prove in order to recover on a lien.

The Services Were Reasonably Required:

The first element a lien claimant must prove in order to receive compensation for interpreting at medical services is that the services were reasonably required. Borrowing from Labor Code section 4600, subdivision (f) the WCAB noted interpreting services may be required for an injured worker who is unable to “speak, understand, or communicate in English.” It is the lien claimant’s burden to show that the injured worker required an interpreter. This can be proven in many ways such as the use of an interpreter at the employee’s deposition or a medical legal exam. It can also be shown by calling the injured worker as a witness. Other suggested methods include sworn statements or testimony from the involved interpreter or physician.

Several defenses often used by defendants were addressed in the Opinion. The WCAB noted that if the physician or a staff member spoke the patient’s language, then interpreting might not be reasonably required. However, the WCAB noted “we would not require a physician to use an employee with other work responsibilities as an interpreter.” In other words, the use of a staff member is at the physician’s discretion. The WCAB rejected the argument that the injured worker could simply choose a different doctor by stating it would unreasonably restrict the choice of doctor.

The WCAB noted that the issue of whether interpreting services were reasonably required in any given case would ultimately be a question of fact for the trial judge to determine.

The Services Were Actually Provided:

The second element a lien claimant must prove to prevail on an interpreting lien is that a specified interpreter was actually present during the appointment in question. Included in this requirement is one that the medical appointment actually occurred. The Commissioners noted this can be done by offering the underlying medical report “reciting that the interpreter was present.” They suggested pre-authorization be obtained, but warned that not doing so does not excuse liability.

The Commissioners also suggested that the medical provider could provide a signed statement “in conjunction with the visit, containing a statement to the effect that a named interpreter was present, the medical practitioner is not proficient in the injured employee’s language, the practitioner’s office does not provide interpreters, and the office’s policy is that the patients who are not proficient in English should be accompanied by an interpreter.” Such a statement would satisfy the first two elements. Expect to start seeing this standard language in all medical reports.

The Interpreter Was Qualified:

The third element a lien claimant must prove is that the interpreter was qualified. The WCAB defined qualified as meaning either “certified” or “provisionally certified” as required under California Code of Regulations, title 8, section 9795.1(f).

The WCAB further restricted the rules for if and when a “provisionally certified” interpreter can be used. Absent agreement of the parties, there must be a showing that a certified interpreter was not available. This will likely be a difficult burden for Spanish language interpreting which constitutes the vast majority of services. Interpreting services should expect to start seeing demands for the identity and certification numbers of each interpreter for each date of service.

The Charges Were Reasonable:

The final element a lien claimant must prove is that its charges were reasonable. The WCAB encouraged the parties to agree to rates in advance. Absent such agreement, the question is one for the trial judge. As guidance, the WCAB observed that for medical legal appointments the rate set forth in California Code of Regulations, title 8, section 9195.3(b) is $11.25 per quarter hour (minimum 2 hours) or the market rate, whichever is greater. This schedule does not govern, but only provides some guidance. The WCAB cautioned “we are not prepared to conclude that the two-hour minimum applies to all medical treatment appointments, some of which might take only 10 to 15 minutes.”

“If the lien claimant has not proved its fee was reasonable, but has otherwise proved its right to recover, the trier of fact must determine and award a reasonable fee.”

Other Issues:

The WCAB Opinion is full of unexpected surprises, both positive an negative. These include:

The WCAB's admonition that there will be issues not covered by its opinion that trial judges will need to consider when analyzing whether an interpreting lien is compensable.
The lien claimant still bears the burden of proving injury if the claim is denied.
An interpreter who bills for services not provided commits fraud.

From a practitioners standpoint there are two monumental points of interest.

First, despite the WCAB’s recent sanctioning of defense counsel in several cases including Tolentino v. Conco Cement (August 17, 2010) 2010 Cal. Work. Comp. P.D. LEXIS 388 for attaching exhibits to petitions for reconsideration, it once again failed to sanction a lien claimant for doing the same thing. Even worse, the petitionioner in Guitron also apparently referenced exhibits not admitted into evidence. (See note 5.) It is unclear why the WCAB allows professional non-attorneys to continue to practice before it without following its rules.

Second, SCIF never filed an Answer! This is inexcusable. Once again poor lawyering by SCIF has resulted in a decision which is potentially devastating for defendants statewide. We can now add Guitron to the long list of SCIF created problems for defendants including most recently Almaraz and Sandhagen. It is truly unfortunate that the WCAB did not invite amicus curiae briefs from the Workers’ Compensation community on this very important and costly issue. Of course, the WCAB was under no obligation to do so. It is not clear if the decision would have been different. Yet, it would have been nice if SCIF would have acted in the interest of the community.

We must now wait to see if the SCIF challenges the Opinion or lets it become final.

Opinion Filed March 17, 2011.

Heggeness,Sweet, Simington & Patrico, A.P.C

Interpreters Are Part Of Treatment