EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

With its first en banc decision in nine month, the WCAB issued the Guitron v Sante Fe Extruders & SCIF opinion (75 CCC ---) regarding the question as to whether interpreters are required for an injured worker’s medical treatment when the injured worker is unable to speak, understand or communicate in English.  (An en banc decision is binding on all workers' compensation trial judges, unless reversed by the Court of Appeal or the Supreme Court.) They also answered the corollary question as to the elements an interpreter lien claimant must prove in order to be successful.

The facts are fairly simple.  A Compromise & Release in 2008 resolved Mr. Guitron’s claim. Three years later, a trial was held on the lien for interpreting services filed by E&M Interpreting (E&M).  They had rendered services between June, 2006 and February, 2007 and claimed $13,998 was due to them plus penalties an interest.

The Workers' compensation judge (WCJ) issued a Findings and Award that only the initial & final evaluations necessitated interpreting services and that SCIF was liable for the payment for those services. A timely Petition for Reconsideration was filed by E&M.

The first issue that the WCAB considered is whether interpreters are required for medical evaluations.  

The WCAB researched the statutes and AD Rules that provide that interpreting services be paid by the employer for depositions; when there may be  a “medical report that is capable of proving or disproving a disputed medical fact”; where a comprehensive medical-legal evaluation is done; hearings, conferences and arbitration.  However, there is nothing explicit about the day-to-day medical treatments.

The WCAB held that, “pursuant to the employer’s obligation under section 4600 to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English.”

Who can interpret for the injured worker?

The interpretation must be done by a qualified interpreter which “means an interpreter who is certified or provisionally certified.”  AD Rule 9795.1 (f)

A certified interpreter means an interpreter who is certified in accordance with Government Code provisions.  AD Rule 9795.1 (a)  Generally, there are not many of these individuals and certainly not in all the languages and dialects in our state.

More relevant to medical treatment appointments are “provisionally certified” interpreters.  “Provisionally certified means an interpreter who is deemed to be qualified to perform services under this article, when a certified interpreter cannot be present, by (A) the residing officer at an appeals board hearing, arbitration, or formal rehabilitation conference, at the request of a party or parties, or (B) agreement of the parties for any services provided under this article other than at an appeals board hearing, arbitration, or formal rehabilitation conference.”   AD Rule 9795.1 (e)  

What must an interpreter lien claimant prove to prevail with their claim at trial?

To this question, the WCAB held that interpreter services that are not pre-approved are not automatically paid.  In a contested claim, the interpreter must prove  (1) that the injured worker required an interpreter; (2) that the interpreter was actually present at the medical appointments in question; (3) that the interpreter was a qualified interpreter; and (4) the reasonableness of their charges.  

AD Rule 9795.3(b)(2) states that the fee schedule for statutory interpreter services is $11.25 per hour, with a minimum of two hours or the market rate whichever is greater.  “Market rate” is defined as “that amount an interpreter has actually been paid for recent interpreter services provided in connection with the preparation and resolution of an employee's claim.”  (AD Rule § 9795.1(h))

Since these medical treatment appointments are not statutorily mandated, the Commissioners indicated they are guidelines.  They noted that some medical appointments are actually less than two hours.  However, they made no ruling on those issues.

Clearly, the pre-authorization of designated qualified interpreter services will solve most of these lien problems before they ever begin.

Thanks for your attention.

--- Stephen L. Kline, Esq.