WCAB Issues En Banc Decision regarding Allowable Fees for Interpreters at Medical Treatment Appointments.
In a March 17, 2011 decision, Workers’ Compensation Appeals Board issued an en banc decision in the matter of Jose Guitron v. Santa Fe Extruders allowing for payment of interpreters at medical treatment appointments, and setting forth specific elements necessary to meet the burden of proof for reimbursement of interpreting liens.
This decision in our opinion does not change the status quo insofar as liability for interpreting services at medical treatment is concerned. There are several Board panel decisions that have already reached the same conclusion. However, it is detrimental to the extent that it did not make any rulings that would assist in eliminating the backlog of interpreter liens. In fact, this decision could actually engender even more litigation.
While it is unfortunate (although not unexpected) that the WCAB chose to hold that interpreters can charge for medical treatment appointments (even though it specifically acknowledged that "no statutory or regulatory provision specifically provides for interpretation services during medical treatment appointments", page 12), the WCAB also established a fairly high threshold with respect to the burden of proof that must be met by the lien claimants. It did not eliminate any defenses. Simply stated, the court held that the interpreters have the burden of proving the following:
"That the services it provided were reasonably required, that the services were actually provided, that the interpreter was qualified to provide the services, and that the fees charged were reasonable".
The lien claimant cannot recover without meeting this burden of proof. The WCAB specifically indicated that its decision does not mean that interpreter liens are automatically payable. For example, the decision states that if an injured worker used an interpreter but did not need one, the defendant would not be obligated to pay for the interpreter’s services. In order to receive compensation the interpreter must prove that the injured worker required its services "because he or she did not adequately speak or understand or communicate in English" (page 19).
The WCAB also indicated that if the physician speaks the injured worker's language or if the physician chooses to use a member of his or her staff to interpret, then it is unlikely that other interpreter services would be reasonably required (page 20). Nevertheless physicians are not required to use one of their own employees as an interpreter merely because that employee was able to speak the injured worker's language.
The WCAB also went so far as to suggest a method for the interpreters to at least partially meet their burden of proof "by the interpreter using a form, signed by the medical provider in conjunction with the visit, containing a statement to the effect that the 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 patients who are not proficient in English should be accompanied by an interpreter" (page 21). We anticipate seeing these types of boilerplate forms pretty soon.
However this sort of notice by itself clearly does not satisfy the burden of proving that the interpreter was qualified to provide the services by being either certified or provisionally certified. In this regard the WCAB specifically indicates that since a "provisionally certified" interpreter at a medical examination requires the agreement of the parties [Board Rules §9795.1(e)], the same is true at a medical treatment appointment (page 22). We do not recommend any defendant agree to a provisionally certified interpreter for denied or unauthorized medical treatment.
The area that is most ripe for additional litigation could come under Government Code §11435.55. That statute allows the physician to "provisionally" use a non-certified interpreter "if that fact is noted in the record of the medical evaluation" (page 22). We anticipate that the interpreting agencies will be scrambling to make sure that the unauthorized treating doctors’ progress reports specifically state that the interpreter was selected “provisionally" because a non-certified interpreter was unavailable. The WCAB summed up the requirement for qualifications for interpreters during medical treatment as follows:
"[A]n interpreter may be qualified to interpret at medical treatment appointments because he or she is certified for interpreting at medical examinations or deemed certified for medical examinations by virtue of being certified for court or administrative hearing interpreting, or, if a certified interpreter is unavailable, the interpreter is provisionally certified by agreement of the parties or selected for provisional use by the treating physician" (page 23).
Of course, the WCAB confirmed that the lien claimant must still prove the reasonableness of its charges and comply with the obligation to prove by a preponderance of the evidence all of the elements necessary including injury AOECOE if the claim was denied as indicated in the Kunz case (page 23).
Most importantly of all, the WCAB does not buy into a two hour minimum for all medical treatment appointments "some of which may take only 10 to 15 minutes”. Furthermore the decision states that, although the fee schedule [Board Rule §9795.3 (b)(2)] does not apply directly to interpreter services for medical treatment, "we may look to the fee schedule for guidance as to what a reasonable fee may be" (page 24). However the decision leaves open for further litigation the alternative "market rate" charge contained in §9795.3 (b)(2). The market rate remains the burden of proof of the interpreter.
What this means for you
WCAB en banc decisions are citable authority and binding on local WCAB judges. For interpreting at medical treatment appointments, the preferred method of dealing with the issue is preauthorization or agreement between the parties, which should not be done in cases involving denied or unauthorized treatment. Failing prior agreement, the interpreter must meet a rigorous burden of proof in order to qualify for reimbursement, and this decision makes no changes in the law with respect to that burden. They include reasonableness and necessity of the services, appropriate qualification of the interpreter providing the services, and reasonable fees for their charges.
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