WCDefenseCA

Happy Monday dear readers!

Your humble blogger is freshly returned from presenting at the NRRDA annual conference, dazzling horrified listeners with what makes California’s workers’ compensation system so unique… and so expensive.  The conference was fantastic from start to finish and I would urge each and every one of you, dear readers, to look into this wonderful organization and think about attending in the future.  Well, at least the defense folks and not the 3 applicant attorneys that frequent this most humble of blogs.

Well, enough with the plugs and let’s make with the blogging! 

Your humble blogger has been at this workers’ compensation thing for a while.  One of the frequent endeavors of applicant attorneys is to shift as much of the cost of doing business to defendants as possible.  For example, some applicant attorneys meet their clients for the first time at deposition, where they will be paid 5710 fees to review the case with their clients.  As 5710 fees include interpreter fees, applicant attorneys will wait until the defendant is paying for interpreter depo prep to first learn about the case.

This is far from all of the applicant bar, but this happens often enough where it’s not a rarity.

So, if an applicant attorney needs an interpreter to communicate with his or her client… what happens after the deposition?  Well, often enough, applicant attorneys will retain an interpreter to participate in discussion of settlement paperwork.  But, unlike the various regulations that entitle an applicant to an interpreter at deposition, medical appointments, and hearings, there’s no provision for an interpreter at defendant’s expense at a meeting between applicant and applicant’s counsel to go over settlement paperwork.

Interpreters will try to sneak a bill for these services in with the legitimate services, such as appearing at a hearing or a deposition.  When applicant attorneys “hire” interpreters for such services, it’s like they are walking into a bar and yelling “drinks for everyone! Who is buying?”

So, let’s turn to the case of Cruz v. Benu LLC DBA Monsieur Benjamin, a recent panel decision.  The WCAB didn’t provide much guidance, adopting and incorporating the WCJ’s opinion, but we do get guidance from the trial judge who ruled against the cost petitioner – an interpreter service.

The interpreter provided services by translating the consultation between attorney and applicant at the signing of the C&R.  But defendant objected to the amount billed and there was a dispute.  Can you guess, dear reader, how much of a dispute?  What amount of billed services warranted two days of trial and a petition for reconsideration? 

…

$75

That’s right, dear readers!  Over $75, defendant was forced to endure two days of trial, provide witness testimony, and await the ruling of a petition for reconsideration.  As the denial of reconsideration just issued a few weeks ago, we’ll have to wait to see if this case makes it all the way to the Supreme Court.  

The WCJ first outlined that the interpreter, as a cost petitioner, has the burden of proof in establishing the market rate.  The interpreter service sought to meet that burden by submitting approximately 40 invoices performed by that particular interpreter service in June of 2019.  However, the WCJ reasoned “[a]s cost petitioner did not submit any evidence of the usual fee accepted by other interpreters in the same geographical area, cost petitioner failed to establish the market rate for her services.”

The WCJ also reasoned that as defendant paid more than $11.25 per quarter hour, for a minimum of two hours, the payment defendant already issued was reasonable (citing 8 CCR 9795.3(b)(2).)

So, what’s the takeaway from this, dear readers?

If the Cruz reasoning is applied, interpreters must show not only the fees paid for that interpreter, but also other interpreters in the area to establish a market rate.  Each defendant will have to decide for itself, however, if the fight is worth it.  Your humble blogger submits that it is.  The issue is never $75, nor is it about the $5 or $1.  If you yield the $75 this time, the prices will continue to rise above the “market rate” you have established by capitulation. 

It might not be worth it in each individual case, but to make a true determination, one must consider the increased rates in the aggregate.

What do you think, dear readers? Is your humble blogger just expressing litigation lust, or does he have the right of it?