by Augustine K. Oh –
Whether you’re dealing with Igrod the Dependent Interpreter or with Ian from the Domestic Misinterpreting Institute, interpreting liens often cause headaches for claims examiners and defense attorneys alike. Hopefully, this BLOG will help you navigate through the muddy swamp of interpreting liens.
One of our newest Equity Partners, Alec Bradford, authored an in-depth analysis of the lien claimant’s burden of proof under Guitron v. Santa Fe Extruders (2011) 76 CCC 228. In case you missed it, you can read it here: https://bradfordbarthel.com/effectively-defending-against-interpreting-liens/.
So every time we receive an interpreting bill, two questions inevitably arise: (1) Should we pay? (2) If so, how much? These questions are answered below, in addition to a recently recurring issue: Is the applicant or the defendant entitled to select the interpreter?
Should We Pay?
With regard to hearings, arbitrations, or depositions, we are obligated to pay for certified (or provisionally certified) interpreting services. Provisional certification is achieved through the parties’ agreement or through the judge/arbitrator’s finding. Practice Tip: Quite often, a non-certified interpreter will be utilized for a deposition transcript reading, without provisional certification. In this situation, no payment should be issued, but rather, an objection.
Certified interpreters can be listed on either: http://jobs.spb.ca.gov/InterpreterListing or http://www.courts.ca.gov/programs-interpreters.htm. As these are two separate databases, we recommend that you search both of them to verify interpreter certification.
With regard to medical legal evaluations, we are obligated to pay for a certified or provisionally certified interpreter. However, with regard to medical treatment appointments, as of March 1, 2014, a non-certified interpreter can be considered to be “a qualified interpreter” (Assembly Bill No. 1376).
AB 1376 was approved on October 13, 2013, amending Labor Code §4600. Of particular importance is subsection (g), which essentially opens the door to allow non-certified interpreters to be paid at a “qualified interpreter” rate. This area is still unsettled, as the language is vague: “an interpreter…commencing March 1, 2014, shall meet any requirements established by…the administrative director that are substantially similar to the requirements set forth in Section 1367.04 of the Health and Safety Code.” H&S Code §1367.04 requires accessibility to interpreters for health care services but does little to clarify certification requirements.
We are hopeful that litigation on this issue will preclude the use of non-certified interpreters, but for the time being, their services will be allowed for medical treatment appointments on or after March 1, 2014. Judge Foust (ret.) noted the importance of interpreter certification:
“Effective as to injuries claimed or sustained after January 1, 1994, it is required that interpreters on medical examinations be certified in order to guarantee their proficiency. However, for cases involving injuries prior to this date, no such requirement existed. Unfortunately, the lack of regulation in this area in the past may have resulted in medical reports that either did not constitute substantial evidence or contained a material false and inaccurate history due to errors committed by unqualified interpreters” (Pamela Foust, California Lien Claims in Workers’ Compensation Cases, §3:181, p. 3-42).
This is where we currently stand as to whether to pay an interpreter:
|Med Tx (pre 3/1/14)||Yes||Yes||No|
|Med Tx (post 3/1/14)||Yes||Yes||Yes|
Nearly every interpreting service will claim “market rate.” This is defined in Rule 9795.1 as “that amount an interpreter has actually been paid for recent interpreter services.” Rule 9795.3(b) then requires that, in order to establish a market rate, the interpreting service must submit a list of recent similar services and the amounts paid. Practice Tip: More often than not, these interpreting services will provide a very selective list that will only include those services for which they received full payment. This does not meet the requirement for the amount actually paid.
For hearings, arbitrations, and depositions, we are obligated to pay at the half day/ full day rate per the Superior Court fee schedule or at the market rate. Because the market rate will almost never be properly established, we will turn our attention to the Superior Court fee schedule.
The Judicial Council of California has been mandated to certify and register court reporters per SB 1304, effective as of January 1, 1993. When browsing through their website, you will find their Resources page for Current Interpreters. This page is accessible here: http://www.courts.ca.gov/2693.htm. When clicking “Additional Materials” then clicking “Payment Policies,” a .pdf file should download onto your browser.
The Payment Policies provide for $156.56 per half day or $282.23 per full day for certified interpreters as of September 1, 2007. Per Rule 9795.1, a half day includes a morning or afternoon hearing /arbitration, up to 3.5 hours of a deposition, and up to 3 hours of an evening arbitration. A full day includes those services exceeding a half day, up to 8 hours.
For medical-legal evaluations, medical treatment appointments, and conferences with I&A Officers, we are obligated to pay a minimum of $90.00, with $11.25 per additional quarter hour.
If the interpreter is required to travel over 25 miles one way and there are no available certified interpreters within that county, they shall also be entitled to mileage at $.34 per mile and travel time at $20.00 per hour.
So this is where we currently stand as to how much to pay an interpreter:
|Hearings||$156.56 (half day) / $282.23 (full day)|
|Arbitrations||$156.56 (half day) / $282.23 (full day)|
|Depositions||$156.56 (half day) / $282.23 (full day)|
|Med-Legal||$90.00 (minimum, first 2 hours) / $11.25 (every addt’l 15 mins)|
|Med Tx||$90.00 (minimum, first 2 hours) / $11.25 (every addt’l 15 mins)|
|I&A Conf||$90.00 (minimum, first 2 hours) / $11.25 (every addt’l 15 mins)|
Selecting the Interpreter
Porfirio Contreras v. Gibson Farms, 2013 Cal. Wrk. Comp. P.D. LEXIS 462, held that the defendant was entitled to select and hire the interpreter for the applicant’s deposition. This holding was reaffirmed in the case of Flavio Solano v. Hess Collection Winery, 2014 Cal. Wrk. Comp. P.D. LEXIS 139.
In Contreras, Applicant’s Counsel would not agree to schedule the applicant’s deposition unless the defendant agreed applicant had the right to select the interpreter. At Trial, the WCJ found that the “producing party” per Labor Code 5811(b)(1) would be the defendant, and thus the defendant had the duty to select and provide the interpreter. Applicant’s Petition for Removal was subsequently denied.
Practice Tip: Having the right to select interpreters should help avoid unnecessary interpreting liens, as it allows us to choose those providers who bill according to the fee schedule. This principle should also apply to medical-legal evaluations that are arranged by defendants.
One for the Road
In the Central Valley (FRE and BAK venues), there has been a recent surge in the number of Petitions for Costs under Labor Code §5811. These petitions are filed by interpreting services seeking orders for payment on residual balances, penalties, and interest. However, in Vega v. Barrett Business Services, (2007) 35 CWCR 244, the Appeals Board found that no penalties or pre-judgment interest are payable under Labor Code §5811.
Within 60 days of receipt of a bill for interpreting services, we must either pay or object. If the services are properly documented, payment should be issued, usually $156.56 (depositions/hearings) or $90.00 (medical-legal/medical tx). If no payment or partial payment is issued, a Notice of Objection should also issue, indicating the failure to provide documentation of interpreter certification or provisional certification, the failure to properly establish the market rate by providing a complete list of recent similar services and the amounts paid for those services, and/or the failure to provide documentation of defendants’ authorization for the interpreting services.
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