Interpreter Liens for Medical Treatment: A Case Review
For a long time there was the question of whether interpreting services were necessary during all medical treatment and whether the employer is liable for those interpreting services. In the en banc decision of Guitron v. Santa Fe Extruder, SCIF, the WCAB held that pursuant to Labor Code section 4600, the employer is required to provide reasonably required interpreter services during medical treatment appointments for injured workers who are unable to speak, understand, or communicate in English. (Guitron v. Santa Fe Extruders, 76 CCC 228)
However, the lien claimant still has some burden of proof. The first and most important burden is to show that the underlying medical treatment was reasonable and necessary to treat an industrial injury. The Court states that the interpreter lien claimant is no different than a medical lien claimant. If there is a question of whether the injury arose out of and during the course of employment, e.g., the case was denied and settled via Compromise and Release, the interpreter lien claimant must prove industrial causation.
The Court cites the Kunz case which found, “Where a lien claimant (rather than the injured employee) is litigating the issue of entitlement to payment for industrially-related medical treatment, the lien claimant stands in the shoes of the injured employee and the lien claimant must prove by preponderance of the evidence all of the elements necessary to the establishment of its lien.” (Kunz v. Patterson Floor Coverings, Inc., 67 CCC 1592).
The Guitron Court then concludes, “If the injured worker was not entitled to the underlying medical treatment, the interpreter’s lien must be disallowed for the services in question.”
Once the underlying treatment is deemed reasonably necessary to cure or relieve the effects of an industrial injury, the Court states the lien claimant must also show that: 1) the services it provided were reasonably required; 2) the services were actually provided; 3) the interpreter was qualified to provide the services; and 4) the fees charged were reasonable. The question then becomes, how can you defend against these liens.
The lien claimant must first show that the applicant required an interpreter. If they can provide some evidence to prove this requirement the employer must provide evidence to rebut. Rebuttal evidence could include any other appearances made by the applicant in which an interpreter was not utilized. Such appearance could be shown through deposition transcripts, Medical Legal examination reports, Minutes of Hearings, or other medical treatment reporting.
For rebutting the fact that services were actually provided, the best evidence is to show a medical report on the date of service in question which does not indicate an interpreter was used. Though there is no current legal requirement for a treating physician to indicate the presence of an interpreter in his/her reporting it is usually helpful and most physicians will indicate simply for reference. This evidence can be strengthened by doctor testimony indicating it is his/her normal and customary practice to state in all reporting that an interpreter was used during the examination.
Once the first two requirements are met by the lien claimant, the next step would appear fairly apparent, either the interpreter used was certified or he/she wasn’t. However, this is where paying close attention to the evidence could be helpful. A doctor report may state that an interpreter was used but it might not specifically state which interpreter was used and most likely will not state whether the interpreter used was certified or otherwise. If the interpreting service does not indicate in their billing specifically which interpreter was used then it will be a tough burden for them to show that the interpreter used on that date of service was certified.
The other issue here is the qualifications of the interpreter. In the Guitron case, the Court indicates the same standards for Medical Legal appointments should be used. This allows for interpreters that are certified to interpret during medical examinations or during administrative hearings, or if a certified interpreter is unavailable then an interpreter can be provisionally certified by party agreement or by the treating physician.
Finally, the charges of the interpreting services must be reasonable. The Court notes, AD Rule 9795.3(b)(2) (8 CCR section 9795.3(b)(2)) provides the following fee schedule for interpretation at all events listed in subdivision (a), other than a hearing, arbitration, deposition, or rehabilitation conference:
“interpreter fees shall be billed and paid at the rate of $11.25 per quarter hour or portion thereof, with a minimum payment of two hours, or the market rate, whichever is greater. The interpreter shall establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.”
“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.” (8 CCR section 9795.1(h).)
The most significant finding by the Guitron Court in these regards is where it states, “while $11.25 per quarter hour, or market rate, as proven by lien claimant, appears to be a reasonable standard, 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. (See Di Giuseppe v. Workers’ Comp. Appeals Bd. (Menjivar) (2002) 67 CCC 1003 (writ denied) [$45.00 per visit was considered adequate payment for interpreting services at medical treatment appointments that were not shown to last longer than one hour].)” (Guitron, supra).
However, the Court goes on to concede that it understands that without a minimum rate of reimbursement, the incentive might not be there for the services to be provided, thus possibly depriving the injured worker of necessary medical treatment. Nevertheless, the opening is there to argue reasonableness of charges when it is shown the medical treatment lasted only a minimal amount of time.