Employee, Carmelo Ceceres Aguilar appealed the compensation judge’s denial of payment to Intervenor, Intersource Services, LLC, who also cross-appealed for the same reason. Employer, Kendell Doors & Hardware, Inc. and Insurer, Westfield Nat’l Ins. Co. also cross-appealed, asserting that one of the findings made by the compensation judge was not supported by substantial evidence. The W.C.C.A affirmed the ruling as modified.
Employee injured his right forearm and bicep on July 12, 2019. Employee was using a hand grinder and sustained a severe laceration to the affected area after the grinder started up while he was holding it under his arm. The injury was admitted and benefits were paid.
Employee is a native Spanish speaker, and as that was the case, a Spanish-speaking QRC was appointed. Employee did not think the QRC spoke Spanish well enough and there were communication issues. Employee timely requested a new QRC, and chose one named Kirsten Engelke, who did not speak Spanish. QRC Engelke than hired Intervenor to provide translation services so they could work together. The first meeting with Employee occurred on September 6, 2019.
QRC Engelke’s initial report dated September 11, 2019 indicated that Employee spoke very little English and had a prior QRC that he could not communicate well with. The report also indicated that there was an interpreter at his medical appointments, but that interpreter was through the clinic and interpreted for the doctor, not the prior QRC. The report stated that Employee was not able to address his concerns due to the lack of interpreter. QRC Engelke filed a Rehabilitation Plan Amendment (R-3) and noted the change of QRC. She indicated what she’d be doing (medical management, return to work assistance, guidance, vocational counseling, and administrative services), itemized her costs and indicated projected completion dates. She did not address any barriers to rehabilitation on the form. Both she and Employee signed off on the R-3.
Employee filed a rehabilitation request on March 9, 2020 seeking approval for choice of interpreter and for administration of rehabilitation. Employer & Insurer objected and asserted that injured employees did not have a right to payment of interpretation services for rehabilitation purposes. After an Administrative Conference was held, Employer and Insurer were found to be responsible for some interpretation services so Employee could receive rehabilitation services. It was found that some of the QRC services were not reasonable and necessary. Employer and Insurer then filed a request for a formal hearing.
QRC Engelke completed a closure report on April 14, 2020, as Employee returned to work without restrictions and noted she’d be closing her file.
There was no indication in QRC Engelke’s records regarding hiring Intersource Services or their costs for interpretation. There was also no mention of how QRC Engelke did not speak Spanish and would need an interpreter. Additionally, there was no evidence of any agreement showing how Intervenor would be paid. Intervenor billed Employer and Insurer, and they denied payment. Intervenor did not bill QRC Engelke directly.
Intervenor filed a Motion to Intervene on September 8, 2021, for payment of services from September 5, 2019 to May 1, 2020. They attached billing records to the Motion. The descriptions of service included “3-way message,” “onsite interpretation,” and “document translation.”
A hearing was held on September 10, 2021 and the issue heard was whether the interpretive and translation services were reasonable, necessary, and payable by Employer & Insurer. The payment amount was $6,235.85. An interpreter was present throughout the hearing and QRC Engelke testified she doesn’t speak Spanish but understands “some Spanish.” She also explained the difficulties Employee said he faced initially and that there is no consistency as to whether interpreters would be present at medical appointments. She went on to explain that without “effective communication with an injured worker” she is unable to provider QRC services.
On cross, QRC Engelke was unable to confirm or deny if she sought authorization from the Employer and Insurer to hire Intervenor. She had not reviewed all her reports but thought there might have been a reference to seeking such authorization. She later stated that she knew that the Insurer was aware Employee spoke Spanish and she didn’t, but, she did not believe she specifically sought authorization to hire Intervenor. She also testified that Employee requested Intervenor’s services even when she wasn’t present. She claimed did not tell Intervenor that Insurer would pay for such services.
Juan Carlos Vidal Franco (owner of Intersource) testified they received a request from QRC Engelke for translation but was not contracted by Employer/Insurer. He did not submit a bill to QRC Engelke, because he thought Insurer would pay for translation services and testified that it was “essentially impossible” for non-native English speakers (as he was one too), to handle workers’ compensation issues without interpretation/translation.
Employee went on to testify about his prior QRC issues and that he didn’t understand the paperwork he had to sign. He said the prior QRC had him sign things but did not explain them to him, and there was no translator present.
The compensation judge issued his findings and order on November 15, 2021. In those findings, he denied Employee’s request for payment of Intervenor’s services, and stated that there was no law or rule that required employers and insurers to pay for translation/interpretation services to access rehabilitation/QRC services. Employer and Insurer were not obligated to pay for such services. Employee appealed this decision and then Employer, Insurer, and Intervenor cross-appealed.
Employee and Intervenor argued that non-English speaking employees can’t effectively choose a QRC and receive rehabilitation benefits if Employers/Insurers are not required to pay for interpretation/translation. The Court found that while the issue raised was important, was not reached under the facts of this case. The Court ultimately affirmed the findings & order, because QRC Engelke failed to inform Employer/Insurer, as required by statute, the need for interpretation/translation services.
Minn. Stat. § 176.102, subd. 9(a)(2) states that Employer is liable for rehabilitation expenses, including rehabilitation costs and the cost of “supplies” necessary to implement the rehabilitation plan. Additionally, that statute also notes that the charges shall be properly indicated on the forms and submitted. Minn. Stat. § 176.102, subd. 9(b). Additionally, a QRC cannot collect payment for services from other persons, including employees, if the employer is “relieved of liability.” Minn. Stat. § 176.102, subd. 9(c).
Employer & Insurer asserted that interpretation services are not included in the rehabilitation statute and there are no rules/laws requiring payment of such services to facilitate communication with QRCs for rehabilitation purposes. They went on to add that if a QRC wanted that service that would just be a “cost of doing business.”
There were no interpretation services listed as part of the rehabilitation plan and QRC Engelke did not follow the proper rules (put together plan, modify/amend plan as necessary, keep Employer/Insurer aware of services and costs). Because she didn’t notify Employer/Insurer of need for Intervenor’s services, they can’t be responsible for payment of such services.
Additionally, Employer and Insurer cross-appealed asserting that Finding 2 (1st and 2nd QRCs didn’t speak Spanish) was not fully supported by the record. This finding is not supported by the evidence, because while the first QRC didn’t speak Spanish well enough to satisfy Employee’s needs, that QRC did speak Spanish. This Court modified Finding 2 to indicate that “The employee has used two different QRCs, the first of whom spoke Spanish (the employee’s native language), while the second did not.”
Takeaway: Compensation judge’s order denying payment for Intervenor services affirmed; Finding 2 modified.