Through Julie insisoulath
Wednesday February 3, 2021 | 0
Workers’ compensation defendants regularly deal with disputes over interpreter fees, including whether they are entitled to the market rate or the fee schedule.
One might assume that since a fee schedule is in place, the rate for an interpreter is not rebuttable. However, the California Code of Regulations appears to provide a loophole.
In accordance with CCR Â§9795.3:
- For a hearing, arbitration or appeal committee testimony: Interpreter fees will be billed and paid at the higher of the following amounts (i) at the half-day or full-day rate as as set out in the Superior Court’s schedule of fees for interpreters in the county where the service was provided, or (ii) at market rate. The interpreter should establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. Service over eight hours is paid at the rate of one-eighth of the full-day rate for each hour of service over eight hours.
- For all other events listed under subsection (a), interpreter fees will be billed and paid at the rate of $ 11.25 per quarter hour or part thereof, with a minimum payment of two hours , or the market rate, whichever is greater. The interpreter should establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services.
Even if the regulations seem to allow a higher rate for interpreters, there are many other arguments that can be made to minimize, if not completely eliminate, some of the invoicing of interpreters.
Obligation to submit for a second review
More recently, in Meadowbrook Insurance Co. v. WCAB, a California appeals court ruled that the claims administrator, Meadowbrook Insurance, was not required to pay disputed fees for the services of an interpreter because the interpreter failed to file a second appeal in review before filing a lien.
Meadowbrook argued that section 4603.2 of the California Labor Code states that if the only dispute is over the amount of payment and the supplier does not request a second review within 90 days, the invoice will be deemed satisfied and neither will the supplier request a second review within 90 days. neither the employer nor the employee will be liable for any other payment.
A supplier cannot resubmit the invoice to the administrator, nor make a written request alone for the remaining payment and later argue that these requests should be interpreted as requests for a second review. CCR Â§ 9792.5.5 has specific requirements, as well as a specific form, Form DWC SBR-1, which must be submitted with the application.
Submission for a second review is mandatory. If this step is skipped, a supplier could risk waiving any right of collection for the disputed amount.
Establishment of the market rate
In the Guitron v. Santa Fe Extruder, the appeals board determined that although an employer is required to pay for an interpreter during medical treatment appointments, the onus is on the interpreter to prove that they are entitled to the fees charged. In order to recover the costs of interpreter services, the preferred creditor of an interpreter has the burden of proving that:
- The services provided were reasonably required.
- The services were actually provided.
- The interpreter was qualified to provide the services.
- The fees charged were reasonable.
CCR Â§9795.3 provides that the interpreter must establish the market rate for the services by submitting documentation to the claims administrator, including a list of recent similar services performed and amounts paid. This could be presented in the form of an advance payment made by other carriers. If these documents are not produced, the interpreter would not be able to shoulder the burden of proving his argument in favor of a higher market rate.
Obligation to provide certified interpreters
Another argument that a claims administrator could make against a higher interpreter rate and billing is that the interpreter appearing was not certified. While a claims administrator / employer is required to pay for interpretation services in order to reduce communication barriers, Section 4600 (g) of the Labor Code states that an employer is not required to pay for the services of an interpreter who is not certified or who is provisionally certified by the person providing the treatment or medical examination, unless the administrator / employer consents in advance.
In other words, if the interpreter does not have the necessary certifications, invoices could be refused payment in full. For example, claims administrators should make it a habit to regularly check the certification numbers of appearing interpreters.
It should be noted that, while the above arguments can be made, proceeding with a trial on these issues carries a significant risk. After all, there isn’t much case law on this issue, which could make trial results more unpredictable. And the longer the litigation and the more the balance remains unpaid, daily interest accrues on each of the service dates until the unpaid amount is paid.
With this in mind, we recommend that you choose carefully the interpretation fee disputes that you intend to bring to trial.
Julie Insisoulath is a partner lawyer at Bradford & Barthel in Oakland. This Bradford & Barthel blog entry appears with his permission.