Interpreters for Medical Treatment

Saturday, March 12, 2005 | 0

The following article was authored by a respected California work comp expert who desired to remain anonymous, but who was moved to comment from a legal perspective on the controversy reported earlier in the WorkCompCentral News concerning the challenge to interpreting fees in medical treatment settings by Zenith Insurance Co. We present this article in the interest of further legal analysis of this controversy.

Are injured workers entitled to foreign language interpreters at the defendants' expense when visiting their treating physicians' offices for medical treatment? This issue, which has simmered beneath the surface for years, has finally erupted into public controversy as an interpreting service and an insurance company prepare to do battle. Both claim to have the law on their side and specifically Labor Code section 4600.

When originally enacted in 1937, Labor Code section 4600 imposed liability on the employer for medical treatment that was "reasonably required to cure or relieve from the effects of the injury." In 1949, a second paragraph was added to the statute requiring the defendant to reimburse the employee for "expenses reasonably, actually, and necessarily incurred for X-rays and medical reports required to successfully prove a contested claim." The word "successfully" was eventually deleted from the statute and the list of allowable expenses was expanded to include interpreters. In 1984, the medical-legal language was deleted from the statute and incorporated into new Labor Code section 4620.

The following paragraph was added to Labor Code section 4600 in 1994, with the passage of Assembly Bill 110:

"Where at the request of the employer, the employer's insurer, the administrative director, the appeals board, a workers' compensation judge, an employee submits to examination by a physician and the employee does not proficiently speak or understand the English language, he or she shall be entitled to the services of a qualified interpreter in accordance with conditions and a fee schedule prescribed by the administrative director. These services shall be provided by the employer. For purposes of this section, "qualified interpreter" means a language interpreter certified, or deemed certified, pursuant to Section 11513 or 68566 of the Government Code."

The Legislative Analysis of AB 110 explained the statutory amendments affecting the injured worker's right to an interpreter as follows:

"INTERPRETERS

Existing law includes interpreting services as an expense in producing medical-legal reports.

This bill

1) Entitles an employee who is not proficient in English to be provided a certified interpreter by the employer when an employer or the appeals board requires an employee to submit to a medical examination.

2) Requires reasonable payment of interpreters' fees in depositions and deposition-related events permitted by the Administrative Director.(AD) The fees shall be set by the AD.

3) Requires the party producing a witness in a workers' compensation case to arrange for a certified interpreter. Fees reasonably, actually and necessarily incurred shall be allowed in accordance with a schedule set by the AD."

Based on this language, it seems clear that the Legislature did not intend to impose liability on the defendant for the cost of an interpreter in connection with medical treatment. Submitting to a required medical examination and obtaining medical treatment are two entirely different concepts and it is difficult to see how the latter could be gleaned from the former.

If the Labor Code does not require defendants to provide injured workers with interpreters for medical treatment, would it be beneficial to enact such a statutory obligation? Perhaps it would be beneficial for doctors and interpreters, but not for injured workers. There is no reason why treatment of industrial injuries should be any different from treatment of nonindustrial conditions. Does Blue Cross pay for interpreters? No, it doesn't. The use of an outside interpreter in a therapeutic setting is the least desirable of all possible options. Furthermore, if a professional interpreter is used at all, the resulting expense is a cost of doing business on the part of the doctor and such services are not properly categorized as a form of medical treatment.

In the "real world," outside of workers' compensation, doctors, like all other businessmen, tailor their services to their clientele. Non English-speaking individuals who need medical care go to doctors in their communities who speak their language with varying degrees of proficiency, or at the least, have bilingual employees on staff. A medical office that opens its doors in an immigrant community and offers prospective patients an exclusively English-speaking staff, is not going to stay in business for very long.

The Legislature recognized the importance of direct communication between doctor and patient when it enacted the Cultural and Linguistic Competency of Physicians Act of 2003 which can be found at Business & Professions Code section 2198. A voluntary program operated by local chapters of the California Medical Association and monitored by the Division of Licensing, the program is designed to provide physicians with sufficient fluency in a foreign language to communicate directly with non English-speaking patients, as well as a working knowledge of cultural beliefs and practices that may impact patient health care issues.

If direct communication between doctor and patient is not possible, the next best option is a doctor with bilingual employees who are familiar with the doctor's practice; who can establish an ongoing relationship with the patient; and who provide interpreting and other ancillary services both in the office and over the telephone. Less desirable than a bilingual staff, but preferable to an outside interpreter would be the bilingual friend or family member in whom the patient has confidence, who is willing to accompany the injured worker to the doctor's office to assist. The outside interpreter who is unfamiliar with both the patient and the doctor and who is probably not certified by the state is the least desirable of all the options.

So why would a non English-speaking injured worker select a doctor with whom he can't communicate when there is access to doctors who speak his language? The answer is that these applicants don't pick their doctors; their attorneys do. The primary consideration in the selection process is generally not the patient's medical well being but rather his legal well being. Thus, the referral is made to a doctor whom the attorney is confident will write a "good report" that will maximize the settlement value of the case and thus the attorney's fee.

Now, it seems evident that the goals of maximum medical improvement and a prompt return to work will be facilitated by treatment in a medical office in or near the injured worker's home community where the patients and staff speak the same language and observe the same customs. It is less likely that these goals will be met in a clinic across town where the doctors and support staff speak English exclusively and the interpreter is only going to interpret for the history taker and the physician's assistant. Nonetheless, this situation has not been a cause for concern because doctors and lawyers make less money when applicants get better and it's assumed that whatever gets the applicant the most money in the end must be in his best interests which is not necessarily true.

The only legitimate basis for providing applicants with interpreters at the defendant's expense is in those situations where the interpreter's services are an essential cost of litigation, not related to the doctor or lawyer's cost of doing business. Certified interpreters are necessary for medical-legal evaluations because the resulting evidentiary report is the substitute for the doctor's sworn testimony. If no one could be sure that what the doctor heard was what the applicant really said, the validity of medical-legal reports would be called into question. Certified interpreters are also necessary for depositions because a deposition is a legal proceeding in which the applicant testifies under penalty of perjury. Furthermore, applicants are entitled to a certified interpreter at the WCAB to enable them to understand and participate in the proceedings even if the judge doesn't actually go on the record. In all of these situations, accurate interpretation is necessary to validate the WCAB's evidence and to promote the belief that the parties have gotten a fair shake.

It would not make good public policy to compel defendants to furnish applicants with interpreters so that they can talk to their treating physicians or attorneys. How an applicant's attorney or a treating physician chooses to communicate with the applicant is part of the services that these professionals have undertaken to perform. If they decide to utilize an interpreter, that's fine, but it's a cost of doing business. Otherwise, insurance companies might as well pay for long-distance phone calls or the cost of secretarial services and postage to send applicants letters if the defendant is liable for whatever it takes to effect communication. In the "real world," if a treating physician refers a patient to a diagnostic testing facility for an MRI and neither the doctor nor the facility bothers to communicate with the patient to find out that he has a pacemaker, do they really think they'll be insulated from liability for his resulting death by the fact that the insurance company didn't provide an interpreter? We all know the answer to that one.

Of course insurance companies have to do their part too and that means providing the injured worker with a bilingual doctor from the very start. If he retains an attorney who places him with a new doctor and the interpreters' liens start coming in, it would be appropriate to file a Petition for Change of Primary Treating Physician on the ground that the current treatment is ineffective and the employer is prepared to provide more effective treatment. The defendant should then provide a panel of five physicians who are competent to treat the injured worker, with whom he shares a common language.

Interpreters perform invaluable services, but only when their services are truly needed. Good treating physicians are the cornerstone of the workers' compensation system, but if a doctor can't communicate with a patient, the right thing to do is to refer him to someone who can. It's time to stop putting the interests of entrepreneurs ahead of the interests of injured workers, all in the name of protecting the rights of those same injured workers.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.