News

CWCIA/ DWC MEETING ON PROPOSED FEE SCHEDULE

On June 5, 2018, CWCIA leadership members Lorena Ortiz Schneider, Joyce Altman and Isis Bolaños Rivera, met with the state representatives charged with creating the interpreter fee Schedule as mandated by SB863. CWCIA’s Lobbyists Steve Cattolica and Carl Brakensiek from AdvoCal, were also present. The Department of Industrial Relations (DIR)/Division of Workers Compensation (DWC)’s Administrative Director George Parisotto, DWC Attorney Special Counsel III Alan Hersh, and Yvonne Hauscarrieague, Acting Chief Counsel, present. The meeting was slotted for 1 hour, but they gave us almost two.

There was not enough time to address every concern. CWCIA submitted 15 pages of comments to the fee schedule proposal, so the purpose of this meeting was to highlight some key operational issues, find out where the DWC was in this process, and seek some clarification.

One of the major concerns addressed was the proration of assignments. The DWC stated that interpreters in Superior and Federal Courts are required to interpret for multiple cases and are paid the same ½ day rate regardless of the number of people they interpret for. We argued that this is a different industry, one in which reimbursement for interpretations services rise and fall with the injured worker’s case, whether the PTP is on the MPN, and that getting paid is a lot more difficult. Further, each carrier is responsible for paying for the expenses of a claim, not a central unit like the court’s interpreter coordinator.

We expressed concern that requiring judges and doctors to document how many assignments interpreters provide would lead to increased payment disputes and delays. We suggested instead they create a standardized form like the Interpreter Verification Affidavits that are currently being used to document this information ourselves and submit with our billing. They seemed open to this suggestion.

We pointed out that the DWC hired the Berkley Research Group (BRG) to gather data and recommend a monetary value for interpreter services.  The DWC choose not to follow the recommendations because they did not find the data gathered was representative of the market. A large nationwide provider presented 80,000 invoices while independent interpreters submitted only 4,337 invoices. Alan Hersh seemed exasperated at the lack of information on which to base his decision on which to peg a fee. Essentially, he threw his hands up in the air and said it was all too much! Meanwhile, George Paristotto seemed to agree with us: that this is a very complex issue. Sadly, Alan is the author and architect of the eventual fee schedule.

As already mentioned, instead of following the BRG report recommendations, they decided to look at current Superior Court and Federal court interpreter fees.  Alan said he chose the higher of the two and simply added $20.00 to the daily amount to allow for travel time and mileage.

The DWC’s justification for including Languages of Lesser Diffusion (LLD) into the same rate as Spanish is that interpreters in Superior and Federal courts are paid at the same. They believe that taking the interpreting test is just as rigorous for every language combination, and despite supply and demand/geographical location, all language combinations should command the same fee. They did not seem receptive to our concerns regarding market forces, and simply stated that they must have a rationale for the fees they enact, and the existing fee schedules represent the best resource to determine what works.

Under the proposed regulations, in order for an adjuster to provisionally certify an interpreter, they must speak to at least three Interpreter Service Providers (ISPs) and document said attempts. If they are unable to obtain a certified interpreter, they must notify the applicant in writing at least 48 hours in advance. The applicant is then allowed to arrange for the presence of a certified interpreter of his/her choice. If two interpreters are present, then the certified interpreter is to stay and the carrier must pay both interpreters. If the injured worker is unable to obtain a certified interpreter, then the doctor can arrange for the presence of a certified interpreter. If no one arranges for the presence of a certified interpreter, then can the adjuster can send a provisional certified interpreter. The DWC believes this will ensure that adjusters comply with certification requirements.

We begged to differ and asked for a mechanism to ensure the carrier is complying with the “rule of three” to be in place in order to reduce objection to interpreter bills. We objected to three being the magic number of interpreters they have to call, and pointed out real-life situations where certified interpreters are in a medical office, ready and willing to interpret, but the carrier’s “preferred vendor” gets to stay instead.

The DIR/DWC said the proposed fee schedule needed but a few “tweaks,” leaving us with the impression that any major revisions should not be expected. They continue to review the many comments that were submitted.

Providing interpreting services to the workers’ compensation system will undoubtedly look a lot different from what we have been used to, when the fee schedule is finalized. We came away from the meeting feeling like the DWC has given up on dissecting all the permutations of a day in the life of a work comp interpreter. They seem frustrated and just want to get this task off their plate, preferring to take the easy way out and arbitrarily peg a fee letting the chips fall where they may.

CWCIA will continue to keep you informed. If you have not contributed to the lobby effort, please consider sending in a donation. For those of you who have, and continue to do so, thank you!

 

To read the text of what is proposed click HERE.

Classifying workers as independent contractors just got a lot riskier in California

"Yesterday, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court (Lee), adopting a very broad view of the workers who will be deemed  employees” as opposed to “independent contractors” for purposes of claims alleging violations of California’s Wage Orders. This is a surprising decision that magnifies the risk of classifying workers as independent contractors in California, and is likely to lead to increased claims (in an already litigious area) challenging such classifications in this state." according to a  Carothers DiSante & Freudenberger LLP Article. " Classifying workers as independent contractors just got a lot riskier in California. Independent contractor classifications are a lot more likely to be challenged in litigation, and employers will have a much tougher time defeating the claims. It will also be easier for such claims to be successfully pursued on a class basis. If you’ve got a significant number of workers performing services for you in California as independent contractors, now is a good time to re-evaluate those classifications. This also obviously is not a good ruling for those ride-sharing services we all love."

Read full article with summary of  the descision HERE

Read Dynamex Operations West, Inc. v. Superior Court (Lee) descision HERE

 

According to WorkComp Central, " California’s Supreme Court on Monday laid down a simple, three-part test to determine whether a person is an employee of an independent contractor, in a  ruling that could have implications for workers’ compensation and the gig economy. The three-part test the court created in Dynamex Operations West Inc. v. Superior Court of Los Angeles County (Lee) asks whether a worker:
Is free from control and direction in the performance of work.
Is performing work outside the scope of the hiring entity’s business.
Is customarily engaged in an independently established trade.

If the answer to any of the three questions is “no,” a person is an employee subject to various labor law
protections, including minimum wages, and meal and rest periods.

Though the high court proposed the test for the purposes of wage violations, the new test could also be useful to
determine whether a person is an employee who has to be covered by workers’ compensation."