2011-EB-1 (2011). JOSE GUITRON vs. SANTA FE EXTRUDERS; and STATE COMPENSATION INSURANCE FUND.

• Court: California

California Workers Compensation Decisions 2011. En banc decisions 2011-EB-1 (2011). JOSE GUITRON vs. SANTA FE EXTRUDERS; and STATE COMPENSATION INSURANCE FUND WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIAJOSE GUITRON, Applicant, vs. SANTA FE EXTRUDERS; and STATE COMPENSATION INSURANCE FUND, Defendant(s).Case No. ADJ163338 (LAO 0873468)OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)The Appeals Board granted the petition for reconsideration of lien claimant, EandM Interpreting (EandM), to allow time to study the record and applicable law. The workers' compensation administrative law judge (WCJ) had found, in his October 1, 2010 Findings, Award and Order Re: Lien of EandM Interpreting (FAandO), that the interpreting services rendered by EandM on June 20, 2006, and February 9, 2007, were reasonably required to cure or relieve the effects of applicant's industrial injury, and that the remainder of EandM's unpaid services were not reasonable or necessary. On reconsideration, EandM contends the WCJ erred in denying most of its lien for interpreting services provided during applicant's medical treatment. Because of the important legal issues regarding the right to payment for interpreting services during medical treatment, and to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)(fn1) For the reasons discussed below, we hold the following: 1) pursuant to the employer's obligation under Labor Code section 4600(fn2) to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English; 2) to recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things, 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. In reaching our holding on an interpreter lien claimant's burden of proof, we emphasize that the discussion which follows is not all-inclusive and that, in any given case, the lien claimant also might be required to carry its burden with respect to issues we have not addressed, including but not limited to the issue of injury arising out of and in the course of employment, if contested. The methods we discuss are neither exclusive nor mandatory. BACKGROUND Applicant sustained an admitted injury to his left elbow and psyche, while employed on April 14, 2006, as a machine operator by Santa Fe Extruders, the insured of defendant, State Compensation Insurance Fund (SCIF). His case in chief was resolved by Compromise and Release (CandR) for $22,000. The Order approving the CandR issued on June 11, 2008. On June 21, 2010, a trial was held on EandM's $13,988.00 lien - the unpaid amount of its billing for Spanish interpreting services provided at medical examinations, chiropractic treatments, and physical therapy treatments from June 20, 2006, through February 9, 2007. The issues framed by the parties were 1) whether EandM's interpreting services were reasonably required to cure or relieve the effects of applicant's industrial injury, and 2) whether SCIF must pay for EandM's interpreting services. The WCJ also noted in the Minutes of Hearing SCIF's arguments that some of the services were rendered in connection with work conditioning, that some were rendered in connection with physical therapy visits beyond the 24-visit cap,(fn3) and that the interpreters were not certified. Two additional issues, the reasonable value of the services rendered and EandM's entitlement to penalties and interest, were bifurcated and deferred, with jurisdiction reserved. No testimony was taken at trial, but various exhibits were admitted. SCIF introduced into evidence its claims adjuster's objection to lien claimant's billing, which stated that the billings were for self-procured medical treatment, that the treatment and the charges were not reasonable or necessary, that the interpreting services were for an examination that SCIF had objected to, and that the treating doctors are not part of SCIF's medical provider network. SCIF also introduced its Individual Payment Reports, which included "Reviewer's Comments" explaining why particular billings were not paid - for example, that there was no record of medical treatment occurring on the date billed by the interpreter, and that there was insufficient documentation of the medical necessity for an interpreter at the treatment visit. The parties filed post-trial briefs on two issues: 1) whether SCIF is liable for interpreting services rendered at physical therapy appointments and chiropractic manipulations, and 2) whether interpreters for medical treatment must be "certified" or "qualified," and whether there is a material difference between the two. EandM argued in its brief that applicant was entitled to the services of a qualified interpreter during medical treatment appointments, pursuant to section 4600 and Administrative Director (AD) Rule 9795.3 (Cal. Code Regs., tit. 8, § 9795.3). SCIF argued that interpreter fees are allowable only in connection with medical-legal expenses or evaluations, and not in connection with physical therapy and chiropractor visits. SCIF reviewed the various statutes and regulations authorizing interpreter services and pointed out that none authorizes interpreter services at medical appointments that are strictly for treatment. SCIF argued that, even if such services are found to be reasonable and necessary for medical treatment, the interpreter should be required to provide the information required by section 4628(b) for physicians preparing medical-legal reports.(fn4) SCIF complained that, in this case, "The reports for physical therapy and chiropractic treatment do not indicate that an interpreter was used, let alone disclose the name or qualifications of the interpreter. If there is no indication on the report that an interpreter was used, how can State Fund verify that interpreting services were actually provided." (Defendant's Trial Brief on Lien of EandM Interpreting, 4:6-10.) On October 1, 2010, the WCJ found that the services rendered by EandM on June 20, 2006, and February 9, 2007 (primary treating physician Igor Boyarsky, D.O.'s initial and final evaluations) were reasonably required to cure or relieve the effects of applicant's industrial injury, and that SCIF is liable for payment for those services. He found that the other services billed by EandM were not reasonable or necessary, and that the issue of SCIF's liability for payment for the other dates of service was, therefore, moot. The WCJ distinguished the cases cited by EandM that allowed reimbursement for medical transportation expenses, stating that medical transportation is reimbursed when there is substantial medical evidence that it is necessary to obtaining medical treatment. By contrast, he reasoned, there was no evidence in this case "that Spanish interpreting services were necessary in order for Mr. Guitron to obtain physical therapy and chiropractic treatment. The mere fact that the applicant does not speak English is not enough." (Opinion on Decision, p. 3.) EandM filed a timely petition for reconsideration.(fn5) We have not received an Answer from SCIF. In his Report and Recommendation on Petition for Reconsideration (Report), the WCJ reviewed the various statutes and regulations governing interpreter fees and expressed his agreement, "in theory," with EandM's position that interpreter services can be a necessary component of medical treatment under section 4600. He said, "If an interpreter is necessary to enable an injured worker to communicate with his or her medical provider, understand treatment recommendations and make decisions regarding them, and to participate in treatment, then an interpreter should be provided as part of the cost of the injured worker's medical care." (Report, p. 3.) He added, however,

"In the present case, there is no evidence that Spanish interpreting services were necessary in order for Mr. Guitron to obtain physical therapy and chiropractic treatment. Lien claimant's Exhibit 2 reveals that the interpreting services were performed at offices in East Los Angeles. In that part of the city, Spanish is the primary language, and it is reasonable to believe that medical offices (physicians, chiropractors and physical therapists) serving that community are staffed primarily (if not entirely) by people who speak Spanish. Because the lien claimant has the burden of proof, it is lien claimant's burden to prove that the offices at which interpreting services were performed did not have a Spanish-speaking staff member available to interpret, as well as whether interpretation was required. Even if those offices did not have the ability to speak directly to the patient in his language, it would not necessarily render Spanish interpreting services reasonable and necessary, since East Los Angeles (and all of Southeast Los Angeles County, where applicant lived and worked) has numerous physical therapy and chiropractic offices which are Spanish-speaking." (Id. at

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