ADJ17669984 · December 23, 2024

The WCAB found that the defendant failed to ensure the MSC was taken off calendar after venue change, making the interpreter services necessary and the defendant liable for payment. The WCJ's prior focus on the applicant's representative's conduct was misplaced because the interpreter was required for meaningful participation.

From the decision · page 6The WCJ's focus on the reasonableness of the conduct of applicant's representative in scheduling an interpreter for the MSC is misplaced. Appearance at the MSC was required, and when an applicant requires an interpreter so that the applicant may meaningfully participate, the interpreter is necessary, and a diligent representative should ensure that an interpreter is available. As stated above, section 5811 and AD Rules 9797.3 and 9795.4 provide the framework for consideration of payment to interpreters who appear for WCAB proceedings, and it is reasonably contemplated that even if the interpreter does not actually provide services, the interpreter is still entitled to payment. Here, defendant could have avoided liability for payment to the interpreter by making sure ahead of time that the MSC was taken off calendar. It did not.

Defendant failed to ensure the MSC was taken off calendar after venue change, causing unnecessary appearance and interpreter services.

Favours Applicant prevailed

This failure made the interpreter services necessary and the defendant liable for payment, supporting the grant of the petition for reconsideration.

From the decision · page 6As we observed in our en banc order imposing sanctions in Alfredo Ledezma et al. v. Kareem Cart Commissary and Mfg. et al. (2024) 89 Cal.Comp.Cases 549, 556-57: "[T]rial judges reserve time for hearings that then must be taken off calendar. In addition, wasting the time reserved for the cancelled hearings impacts other litigants because it impacts their access to the trial calendar." Here, since defendant filed the DOR and selected the date for the MSC, it was defendant's responsibility to ensure that the MSC was taken off calendar after venue was changed. Defendant's failure to do so wasted the scarce resources of the WCAB, and wasted the time of applicant, applicant's representative, the interpreter, and the WCJ. Under these circumstances, defendant's explanation for its behavior in failing to timely pay cost petitioner is disingenuous at best and appears to be frivolous and without merit.

Labor Code section 5811

Interpreter fees that are reasonably, actually, and necessarily incurred shall be paid by the employer under this section, provided they are in accordance with the fee schedule adopted by the administrative director.

Applied to determine entitlement to payment for interpreting services at MSC.

From the decision · page 4II. We will now address the issue of whether cost petitioner is entitled to payment for its services on September 14, 2023 at the MSC. Section 5811(b) states in relevant part that:... (2) A qualified interpreter is a language interpreter who is certified, or deemed certified,...The duty of an interpreter is to accurately and impartially translate oral commutations and transliterate written materials, and not to act as an agent or advocate.

California Code of Regulations, title 8, section 9795.4

All expenses for interpreter services shall be paid within 60 days after receipt by the claims administrator of the bill for services unless contested timely with explanation and notice.

Applied to determine payment timing and contesting procedures for interpreter fees.

From the decision · page 5All expenses for interpreter services shall be paid within 60 days after receipt by the claims administrator of the bill for services unless the claims administrator, within this period, contests its liability for such payment, or the reasonableness or the necessity of incurring such expenses. A claims administrator who contests all or part of a bill for interpreter services shall pay the uncontested amount and notify the interpreter of the objection within 60 days after receipt of the bill. Any notice of objection include all of the following:

Defendant failed to ensure the MSC was taken off calendar after venue change, causing unnecessary appearance and interpreter services.

From the decision · page 6As we observed in our en banc order imposing sanctions in Alfredo Ledezma et al. v. Kareem Cart Commissary and Mfg. et al. (2024) 89 Cal.Comp.Cases 549, 556-57: "[T]rial judges reserve time for hearings that then must be taken off calendar. In addition, wasting the time reserved for the cancelled hearings impacts other litigants because it impacts their access to the trial calendar." Here, since defendant filed the DOR and selected the date for the MSC, it was defendant's responsibility to ensure that the MSC was taken off calendar after venue was changed. Defendant's failure to do so wasted the scarce resources of the WCAB, and wasted the time of applicant, applicant's representative, the interpreter, and the WCJ. Under these circumstances, defendant's explanation for its behavior in failing to timely pay cost petitioner is disingenuous at best and appears to be frivolous and without merit.