En Banc Decision In Guitron Addresses Hot Button Issues Regarding Interpreter Services For Treatment Exams
March 18, 2011
In a perhaps misguided attempt to cut down on the lien strangulation in its adjudication system, particularly in Southern California, the Appeals Board issued an en banc decision on 3/17/11 in the case of Jose Guitron v. Santa Fe Extruders and SCIF (Case No. ADJ163338), holding that Labor Code § 4600 requires an employer to provide reasonably required interpreter services during medical treatment visits for an injured worker who is unable to speak, understand or communicate in English. Placing some burden, on the interpreter the Board also held that to recover charges for interpreting services, the interpreter lien claimant has the burden of proving that:
- The services were reasonably required (i.e. the worker is not sufficiently proficient in communicating in or understanding English);
- The services were actually provided;
- The interpreter was qualified to provide the services; and
- The fees charged were reasonable.
In its opinion, the WCAB recognized that while interpreter services are not specifically listed in § 4600, they are analogous to the obligation to provide the costs of transportation to obtain treatment, which caselaw determined is part of medical treatment expenses. The WCAB went on to address the lien claimant's burden of proof in recovering its lien for interpreting services. The Board noted the four criteria above that the interpreter must satisfy. The WCAB suggested a few methods of meeting each criterion, such as providing a physician's statement that an interpreter was needed or an interpreter's testimony or sworn statement that he confirmed with the physician that interpreting services were needed. This particular method will do little to resolve the problems we currently face when dealing with unscrupulous interpreters and physicians. While the WCAB made such suggestions, it was careful to emphasize that its discussion and suggested methods are neither exclusive nor mandatory.
The Board also suggested that there would be greater scrutiny over fee charges and the extent of services needed (suggesting the questioning of minimum charges).
Parties can avoid the anticipated disputes over interpreting services by:
- Confirming the need for interpreters prior to the beginning of regular treatment;
- Interpreters using a form signed by the medical provider in conjunction with the treatment visit;
- The parties agreeing to the use of a provisionally certified interpreter if a certified interpreter is not available;
- Confirming with medical providers whether language assistance is available within their medical offices;
- Providing interpreters as part of the MPN.
It is instructive to compare this sweeping opinion with the more crafted panel decision in Garcia v. Zurich American Ins. Co. (2010), 39 Cal. Workers' Comp. Rptr. (CWCR) 15, where a panel of Commissioners Lowe, Moresi and Cuneo disallowed an interpreter firm's lien where there was no evidence that the interpreters provided the services at most of the treatment exams, nor the amount of time involved as well as no evidence that the interpreters were appropriately qualified. Perhaps more important, there was no showing that interpreting services were necessary for any of the treatment visits. This particular doctor advertised that he had Spanish-speaking staff and that he himself spoke Spanish.
No doubt the Board wanted to set forth guidelines to reduce litigation of the glut of interpreter liens filed and requiring hearing time. However, painting with a broad brush, as the Board has here, may have the opposite effect, allowing interpreters to appear to abide by the "rules" set forth in order to cover their on-going practices and encouraging more litigation to deal with the "special circumstances" which make their liens payable in a particular case. The Board says its rules are neither "exclusive nor mandatory" -a clarion call to ongoing abuse by the unscrupulous segment of this cottage industry.
By: Barry Lesch, Oakland
Janet Zamecki, San Francisco
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