California’s current rules and regulations already contain an existing interpreter fee schedule and interpreters who fail to request a second review of carriers’ explanations of review risk dismissal, according to a new published decision from the 3rd District Court of Appeal in a case litigated by the Law Offices of Bradford and Barthel, LLP.
The state appellate court determined that a section of the California Code of Regulations’ section titled “Fees for Interpreter Services” constitutes an interpreter fee schedule. The section is CCR 9795.3, and can be found here online. As a result, interpreter lien claimants must object to defendants’ explanations of review in a timely manner, and risk dismissal if they do not.
Louis Larres, senior partner and lead appellate counsel at the Law Offices of Bradford and Barthel, represented Meadowbrook in the case and argued the case at the appellate level.
The title of the published decision is Meadowbrook Insurance Company v. WCAB (DFS Interpreting), et al., No. CO88882, 11/21/19. Here is a link to the decision. “The Court did an excellent job of seeing this issue clearly as we presented it – one of statutory interpretation where the Board’s interpretation of how to apply the second review process/IBR statutes and regs in situations where the AD has yet to revise the fee schedule was erroneous.”
In this case, the interpreter lien claimant DFS Interpreting Services had sought payment from Meadowbrook Insurance Co. for interpreter services provided to two applicants. The carrier had issued “explanations of review” (EORs) in response to the bills. DFS objected to the EORs, but failed to request a second bill review which is required by law under Labor Code 4603.2(e)(2).
At trial, Larres argued on behalf of Meadowbrook that DFS liens should be dismissed because they failed to request a second bill review within 90 days, per LC 4603.2(e)(2).
The workers’ compensation judge determined that DFS’s failure to request a second bill review did not bar their liens on the two cases because the Administrative Director of the Division of Workers’ Compensation had not yet adopted a fee schedule for interpreter services. The judge noted that Senate Bill 863, the omnibus reform bill that took effect in January 2013, called for the creation of a new interpreter fee schedule and that the DWC has failed to create one yet.
Meadowbrook filed a petition for reconsideration and the WCAB denied it, agreeing with the judge that there was no applicable fee schedule and that DFS was not required to submit a request for a second bill review.
The appellate court disagreed. They determined that CCR 9795.3 does contain provisions for payment of interpreter fees, and quoted extensively from those lengthy regulations.
Next, the appellate justices determined that the WCAB now lacked jurisdiction to hear the case because DFS had failed to request a second bill review within 90 days of Meadowbrook’s EORs. As a result, the dispute was ended and that was that.
One interesting sidenote from the decision is the court’s analysis of whether the Labor Codes created by Senate Bill 863 mandate the creation of a new interpreter fee schedule. In short, the court determined that a new interpreter fee schedule is not required by law.
The court examined the exact words used by the bill, and noted that it simply requires the Administrative Director to adopt a fee schedule – not create a new one. With CCR 9795.3 already in existence and constituting an interpreter fee schedule, the Administrative Director is already in compliance the interpreter fee schedule required by SB 863. The justices pointed out that there is no requirement for the Administrative Director to create a new or revised interpreter fee schedule.
This article was written by Louis A. Larres, and John P. Kamin, both of whom are experienced workers’ compensation defense attorneys and partners at the Law Offices of Bradford & Barthel. If you have questions about the decision, interpreter liens, or any other workers’ compensation defense issues, please feel free to contact us. Contact our Appellate Division at email@example.com.
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