February 15, 2012
Effectively Defending Against Interpreting Liens
There is a relatively high burden of proof on the lien claimant, so make sure to demand all proper documentation before you pay interpreting fees. If they can't provide all of the necessary documentation, you shouldn't be paying.
Liens are a huge problem in California. Division of Workers Compensation Adminstrative Director Rosa Moran has recently stated that lien issues threaten the entire workers’ compensation system.1 Much of the focus is directed towards various areas of medical liens.
Interpreting liens are often overlooked as the actual dollar amount requested is typically much lower than medical liens. However, this doesn’t mean that you should be paying interpreting liens that aren’t legally owed simply to close a file.
You might be surprised to find out that much of the time you are probably paying interpreting fees that you don’t have to. In fact, on March 17, 2011 The Workers’ Compensation Appeals Board issued an en banc decision detailing exactly what is required of interpreters in order to prove that they are entitled to their fees in the case of Jose Guitron v. Santa Fe Extruders 76 Cal. Comp. Cases 228. This is the case that interpreters don’t want you to know about, because it is extremely difficult for interpreters to meet the legal requirements to obtain their fees.
When Are You Required To Pay Interpreter Fees?
The rules for when qualified interpreters are specifically required can be found under 8 CCR §9795.3. Generally speaking, interpreters are required for examinations by physicians at the request of the claims administrator, the administrative director or the appeals board, med-legal evaluations, depositions, hearings, conferences, arbitration and other settings determined by the Workers’ Compensation Appeals Board to be reasonable and necessary to determine the validity and extent of injury to an employee. Additionally, Guitron provides that pursuant to the employer’s obligation under LC §4600 to provide medical treatment to the injured worker, interpreters must be provided to workers at medical examinations if the injured worker cannot speak, understand, or communicate in English.
What Are The Legal Requirements On The Interpreter To Recover Fees?
The interpreter has the legal burden of proof to show that the services provided:
- were reasonably required,
- were actually provided,
- were provided by someone qualified to do so, and
- were reasonably charged.
1. Services Were Reasonably Required
The injured worker will need an interpreter if he or she does “not proficiently speak or understand the English language.” (AD Rule 9795.3(a)) There are a number of ways this can be demonstrated. Interpreter use during a deposition can prove a need for an interpreter during medical and legal proceedings. A physician statement that an interpreter was required during a medical exam, an interpreter’s testimony or sworn statement that he or she confirmed with the physician or the attorney’s office that an interpreter was needed, or a worker’s testimony that an interpreter was needed can all prove that an interpreter was reasonably necessary. If the defendant has authorized interpreting services, the interpreter will not have to prove that interpreter services were required for every date of service.
2. Services Were Actually Provided
The interpreter must also prove that he or she was actually present on the date of service in question, and that services were actually rendered. Some ways that this can be shown include the deposition transcripts, or in the case of a medical examination, the doctor noting that the interpreter was present in the report. The interpreter can also have a medical examiner or the applicant sign a form that states that the named interpreter was present, and that an interpreter was actually needed. In the case of doctor’s evaluations, the form should also include that the doctor doesn’t speak the patient’s language, the doctor doesn’t provide interpreters, and that the office’s policy is that patients who are not proficient in English should be accompanied by an interpreter. There are of course other ways for an interpreter to prove that they were present. However, the interpreter must prove that they were present if you are going to pay for the bill. The burden is on the interpreter to prove this. It is almost always a good idea to also cross reference the medical report with the actual bill to verify that the interpreter named is the same on both documents.
3. Services Were Provided By Someone Qualified To Do So
The interpreter must be qualified to provide the billed services. Remember to always request information regarding an interpreter’s certification. Very often interpreters used are not legally certified. A qualified interpreter is a “certified” or “provisionally certified” interpreter pursuant to 8 CCR §9795.1(f). When the setting is not an appeals board hearing, arbitration or formal rehabilitation conference, and when a certified interpreter cannot be present, a “provisionally certified” interpreter may be used.
Provisionally certified interpreters are deemed to be certified by agreement of both parties (8 CCR 9795.1(e)). Often interpreters will claim they have been provisionally certified, but if you didn’t agree to the interpreters qualifications and they aren’t certified you probably don’t have to pay. However, be careful as Government Code Section 11435.55 provides that in medical examinations, if a certified interpreter cannot be present at a medical evaluation, “the physician provisionally may use another interpreter if that fact is noted in the record of the medical evaluation.” ‘Even though an interpreter must be certified for medical legal charges such as depositions and Workers’ Compensation Appeals Board proceedings, an interpreter still must prove competence to provide these services. Simply claiming to be qualified is not sufficient. Items to request include training, education and the nature (type) of interpreting services provided.’
4. The Interpreter Must Show The Reasonableness Of Charges
Remember that the interpreter must prove that the charges are reasonable. You can look to 8CCR §9795.3(b)(2) for a fee schedule on interpreting fees. In most situations, the fee schedule will be $11.25 per quarter hour or portion thereof, with a two hour minimum, or the market rate, whichever is greater. The interpreter can establish the market rate for fee fees 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 §9795.1(h)) Always argue that the market rate is fee schedule in the absence of any evidence to the contrary.
The fee schedule does not apply to regular medical treatment. In cases of interpreting liens for medical treatment, the court relies on the factors enumerated in Kunz v. Patterson Floor Coverings, Inc.(67 Cal. Comp. Cases 1588). The court will consider: a) the usual fee accepted (not charged) by the interpreter, b) the usual fee accepted by other interpreters in the same geographical area, 3) other aspects of the provider’s practice that are relevant, and d) any unusual circumstances in the case. Once again, you can always argue that $11.25 per quarter hour is reasonable, and the two hour minimum may not apply. The interpreter could conceivably have only been at the doctor’s office for 15 minutes.
“Market rate studies that only site State Fund are insufficient. They should include payments from several carriers and for what types of services. Also, your attorney & need rebuttal evidence to market rate studies and they should include payments made to several interpreters if your case will be set for trial.”
In denied cases settled by Compromise & Release, the interpreter must prove AOE/COE issues to recover fees for non med-legal medical interpreting.
Just like with any other medical lien claimant, when a case has been settled by Compromise & Release and liability has been denied, the lien claimant must show that the injury arose out of and occurred in the course of employment, and that the medical treatment itself was reasonable and necessary. This is important to remember, as many disputed interpreter liens have to do with lien treatment by doctors. The burden is on the interpreter to prove AOE/COE issues and reasonableness of treatment in order to recover fees.
Remember that all of the above must be proven by the interpreter to recover fees. This is a relatively high burden of proof on the lien claimant, so make sure to demand all proper documentation before you pay interpreting fees. If they can’t provide all of the necessary documentation, you shouldn’t be paying.
1 “Moran Says Lien Problem Threatens Entire System” Greg Jones. Workcompcentral.com, 01/24/2012