Many companies offer Employee Assistance Programs (EAPs) to their employees. These EAP Programs are contracted by companies to provide various services to their employees. This article will discuss Employee Assistant Programs or EAPs and how they relate to Workers’ Compensation Claims and Employee Work Injuries. This article will also discuss various workers’ compensation case law involving EAP programs.
When a Government Institutes a program that is responsible for distributing billions of dollars each year, there are individuals who will attempt to take advantage of the program by engaging in fraud.
During the course of any given year, billions of dollars are paid out through the Workers’ Compensation Insurance Program to Injured Workers for temporary disability and permanent disability benefits, Medical Providers are paid for various medical procedures provided, Attorneys are paid fees out of Injured Workers’ settlements, and Vendors are compensated for various services provided such as for medications, durable medical equipment, interpreting or photocopying. Also, Employers are obligated to pay premiums in the billions of dollars in insurance premiums.
“Usted Habla Ingles?”
California has an ethnically diverse workforce. It employs a large number of immigrants who are from all over the world. In California, you can find employees from Asia, the Middle East, Africa, Central and South America, and Europe. As a result of these participants in the workforce, there is a large number of workers for whom English is not their first language. There are some workers who cannot communicate in English.
After a work injury, an Injured Worker is required to communicate to a number of individuals with respect to their claim. These individuals, for whom communication is necessary, include the Employer, the Insurance Company, and the Medical Provider. Additionally, If the claim becomes litigated, the Injured Worker must interact with Lawyers and Workers’ Compensation Judges.
Per the Department of Industrial Relations, “[a]n injured employee is entitled to the services of a qualified interpreter in specified settings if he or she does not proficiently speak or understand the English language.” Thus, proficiency with English is of import.’
Why is an Interpreter Important?
In California Workers’ Compensation Law, statements made by Injured Workers are very important. The correctly provided information can assist with the acceptance of the claim being industrial. It also can assist with respect to entitlement to compensation.
Incorrectly provided information, likewise, can be devastating. Incorrectly provided information can be the basis for the denial of a claim, the denial of benefits, and possibly criminal prosecution for workers’ compensation fraud. Making a false statement to obtain workers’ compensation benefits can be the basis for criminal prosecution.
In sum, if an Injured Worker believes that they do not understand everything that is being asked in English, they should request an interpreter. Further, if they believe that they cannot properly communicate their answers, they should also get an interpreter.
Are You Proficient in English?
Proficiency essentially includes three elements: the ability to speak, the ability to understand, and the ability to communicate. So, if one lacks the ability to speak, understand or communicate adequately in English, they should consider themselves “not proficient” in English. Therefore, they should request an interpreter.
Proficiency in English has another element to it as far as the need for an interpreter. There is caselaw that suggests that being considered proficient in English does not require the ability to read and write in English. Therefore, if the Injured Worker is only able to only speak English proficiently, an interpreter is not necessary. Again, caselaw suggests that there is no requirement that they not be able to read and write English. See Stambuk v. Workers’ Comp. Appeals Bd. (Sanchez), 77 Cal. Comp. Cases 675, 2012 Cal. Wrk. Comp. LEXIS 82 (Cal. App. 4th Dist. June 14, 2012)
How Do I Request an interpreter?
If you need an interpreter, you should request one through the insurance Company. You should contact the adjuster and request that one be provided.
Who Pays for the Interpreter?
If the interpreter is indicated in accordance with the Labor Code, it is the Insurance Company that pays for the interpreter.
Do I get an Interpreter When I see my Attorney?
In most circumstances, you are not entitled to an Interpreter to meet your attorney. An interpreter will only be provided if there is a deposition or court proceeding. Otherwise, you will have to rely on the attorney’s staff to provide someone to interpret. Otherwise, you can bring a family member or friend to assist with interpreting matters.
What Is the Authority in the Labor Code for the Right to have an interpreter?
Labor Code 4600 provides the authority for interpreters.
Labor Code Section 4600(f) provides “[w]hen at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law 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 Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, or Section 68566 of, the Government Code.
(g) If the injured employee cannot effectively communicate with his or her treating physician because he or she cannot proficiently speak or understand the English language, the injured employee is entitled to the services of a qualified interpreter during medical treatment appointments. To be a qualified interpreter for purposes of medical treatment appointments, an interpreter is not required to meet the requirements of subdivision (f), but shall meet any requirements established by rule by the administrative director that are substantially similar to the requirements set forth in Section 1367.04 of the Health and Safety Code. The administrative director shall adopt a fee schedule for qualified interpreter fees in accordance with this section. Upon request of the injured employee, the employer or insurance carrier shall pay for interpreter services. An employer shall not be required to pay for the services of an interpreter who is not certified or is provisionally certified by the person conducting the medical treatment or examination unless either the employer consents in advance to the selection of the individual who provides the interpreting service or the injured worker requires interpreting service in a language other than the languages designated pursuant to Section 11435.40 of the Government Code.
Are There Common Languages in California That Require Interpreters?
In California, languages considered as common include Spanish, Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese.
Are there Special Rules for Certain Languages?
Due to the concern with respect to availability of interpreters for rare foreign languages in California
Yes. For medical treatment appointments or medical legal exam, an interpreter may be provisionally certified (A) if the claims administrator has given prior written consent to the interpreter who provides the services, or (B) the injured worker requires interpreter services in a language other than Spanish, Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese, and Vietnamese, in which case the physician may use a provisionally certified interpreter if that fact is noted in the record of the medical evaluation.
When Are interpreter Services to be Provided?
Per the Department of Industrial Relations, “Interpreter services must be provided at a deposition, at an appeals board hearing, at a medical-legal examination, and at a medical treatment appointment.”
Are there Concerns about Finding an interpreter?
Yes. There are challenges with respect to Interpreters. Some Injured Workers speak certain dialects of languages or speak a unique language. There are times when dialects become an issue. For example, there has been a number of occasions I am aware of in which Spanish-Speaking injured Workers require an interpreter who is skilled with respect to the dialect spoken in a particular region from Mexico. There have been times in which depositions and hearings have been continued in order to obtain an appropriate interpreter.
Further, for some exotic languages such as Amharic, interpreters are in demand and there may be difficulty finding one available.
Are there Different Types of Interpreters?
Yes. There are different types of interpreters. Some of special qualifications. There are interpreters that are certified. There is also provisional certification.
Certification means that that the individual has a Certification Commission for Healthcare Interpreters. These individuals are listed on certified, which means listed on the State Personnel Board webpage or the California Courts webpage.
Provision Certification means that provisionally certified, which means deemed qualified to perform interpreter services when a certified interpreter cannot be present, either: (A) by agreement of the parties, or (B) based on a finding by the workers’ compensation administrative law judge conducting a hearing that the interpreter is qualified to interpret at the hearing, or by the arbitrator conducting the arbitration that the interpreter is qualified to interpret at the arbitration. The finding of the judge or arbitrator and the basis for the finding must be set forth in the record of proceedings.
How Do You Find a Certified interpreter?
California Courts webpage. Certified interpreters for the purposes of medical treatment appointments and medical legal exams are listed in the registry for Certification Commission for Healthcare Interpreters (CCHI) or National Board of Certification for Medical Interpreters (National Board).
What if I Need Advice?
If you would like a free consultation regarding your workers’ compensation claim, or if you feel you have medical mismanagement claims, please contact the Law Offices of Edward J. Singer, A Professional Law Corporation. They have been helping people in Central and Southern California deal with their workers’ compensation cases for 26 years. Contact us today for more information.
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