WCDefenseCA

English fluency is by no means a requirement for making a claim in California’s workers’ compensation system.  In fact, it is a short career for a comp attorney, defense or applicant, that doesn’t encounter an injured worker that knew enough of the common tongue to adequately perform his job duties, but not so much that he could readily follow the Queen’s English seasoned with a bit of legalese.

In fact, it’s not that hard to find a native English speaker that feels like a freshly arrived immigrant when long-winded lawyers start serenading themselves with the lovely sounds of their own voices.  (You know who you are…)

So, when an applicant is to be deposed, and an interpreter is needed, who gets to select the interpreter?  After all, a defense-friendly interpreter service might agree to contracted rates and might filter possible interpreters for skills and experience.  And, as always, time is money for the defense — there’s the applicant’s attorney fees to consider, and there’s the time of the interpreter, the court reporter, the room rental (sometimes), and, last and possibly least, the defense attorney.

Meanwhile an applicant’s attorney might want a more expensive interpreter, or to help an interpreter friend, or even might want a workers’ comp savvy interpreter that will mitigate the meaning of an applicant’s words when there is wiggle room for translation.  In fact, a really sneaky applicant’s attorney could see profit in a slow-speaking interpreter to double his deposition fee.  Or, maybe, the applicant’s attorney just trusts a particular interpreter and thinks the defense interpreter service is trying to save money by getting lower-quality work.

The case at hand is that of Porfirio Contreras v. Gibson Farms.  There, the applicant’s attorney refused to allow the deposition of the applicant to be set unless the AA got to pick the interpreter.  Defendant wouldn’t agree, so the matter went before a workers’ compensation Judge, who found that the Defendant, and not the applicant, had the right to choose a deposition interpreter.

The reasoning lies in Labor Code section 5811, which provides that the party producing a witness requiring an interpreter shall bear the responsibility of arranging the presence of an interpreter.  The applicant’s attorney argued that he was producing the witness, namely the applicant, so he should choose the interpreter.  The WCJ disagreed: “Applicant’s role in bringing the deposition about is almost entirely passive.  Applicant has no reason to depose himself.”

The WCAB concurred.

But how would this play out with potential witnesses such as co-workers?  Is the defense “producing” the witness because he is an employee?  Is applicant “producing” the witness because the testimony is beneficial to the case of the applicant?

Now, recall, if you will, dear readers, an earlier blog post on who gets to choose the Nurse Case Manager, but this one is different.  Even though the deposition is typically held in applicants’ attorneys’ offices, it really is defendant’s deposition of the applicant.  It’s defendant’s court reporter, defendant’s transportation to the deposition (if it is needed), defendant’s interpreter, and, ultimately, defendant’s dime.

For now, at least, the defense still has some control over its own discovery process, including who will bridge the language gap between the two parties during the deposition.  Tomorrow, perhaps the Legislature will “reform” workers’ compensation to do away with attorneys all together.  In any case, stay tuned and have a good weekend!