WCAB Says Applicant Attorney Can't Choose Interpreter for Depos

"...Section 5811 was ambiguous though, and if the law really is that the defense has the right to choose the translator for an applicant's deposition, 'then it should be made clear either by regulation or in the statutory language.' He has had problems with interpreters who have been hired by defense firms who are not paying attention during depositions...he has seen interpreters talking on their cell phones or sending text messages during depositions or failing to provide the applicant with a translation when other people in the room are talking to each other, and not to the applicant."   Alan Gurvey

Applicants' attorneys do not have the right to select the interpreter who will translate his or her client's words into English at a deposition for his or her comp claim, according to a recent panel decision from the California Workers' Compensation Appeals Board.

In a ruling last month, the WCAB panel upheld a ruling by Workers' Compensation Judge David Lauerman that the applicants' attorney does not "produce" the applicant for the deposition within the meaning of Labor Code 5811(b)(1), and therefore is not entitled to choose the interpreter for the deposition. 

The case was Contreras v. Gibson Farms, No. ADJ7707093.

Porfirio Contreras had worked for Gibson Farms, which carried comp coverage through the Zenith Insurance Co. He filed a claim based on alleged injuries to his shoulder, chest, neck, back and psyche in a June 2007 accident.

Zenith challenged his claim for the neck, back and psyche injury. The carrier tried to set a deposition of Contreras, but his attorney refused to set a date unless Zenith agreed to let him select a Spanish-language interpreter for the deposition. 

Labor Code Section 5811(b)(1) provides that whichever party is responsible for "producing a witness" is responsible for providing an appropriate interpreter if those services are necessary. 

Since the definition of "produce," pursuant to Webster's Unabridged Dictionary, is to "bring forward," Lauerman reasoned that the party who "produces" a witness is the party who "brings it forward."

He pointed out that the defendant is the "active party" in securing an applicant's deposition, since an applicant "has no reason to depose himself" and the defendant is "the party causing the deposition to be taken." Therefore, Lauerman reasoned that the defense is the party who is "producing" the witness when an applicant is being deposed, and the party who can select the interpreter.

Lauerman said he did not find the language of Section 5811 "to be even slightly ambiguous," and said that his reading of the statute was "wholly consistent with (his) own personal experience in the workers' compensation field."

In the almost two decades that Lauerman has been a comp attorney and WCJ, he said the "universal practice" seemed to be that the party setting the deposition was the one to arrange for the court reporter and interpreter.

Contreras petitioned the WCAB for reconsideration, but a panel comprised of Commissioner Deidra Lowe, Deputy Commissioner Cristine Gondak and Commissioner Frank Brass agreed with Lauerman's interpretation of Section 5811.  

Bay area defense attorney Gregory Grinberg on Thursday remarked that both applicant and defense attorneys have "a lot of incentive" to want to control who the interpreter will be.

On his blog, Grinberg suggested that a defense-friendly interpreter service might agree to contracted rates and save the defense some money, while "a really sneaky applicants' attorney could see profit in a slow-speaking interpreter to double his deposition fee."

An applicant-friendly interpreter also could "mitigate the meaning of an applicant's words when there is wiggle room for translation," or could also just be someone the applicants' attorney trusts.

In speaking with WorkCompCentral on Tuesday, Grinberg said his own experience has been that applicant attorneys will normally select the interpreter for trial, hearings and medical appointments but said he had never had an applicant attorney hire an interpreter for the applicant's deposition. 

The deposition is unlike a medical appointment, however, since there is a court reporter present who produces a transcript of everything that is said, Grinberg explained. And since the worker gets to review the transcript with his attorney and the assistance of any interpreter of his choosing, Grinberg said the worker will have a chance to correct any mistakes that the deposition interpreter may have made, or to clarify the meaning of any statement he made. 

By contrast, "there's no opportunity for the defense to make corrections like that" after a deposition, he said.  

Gilbert Calhoun, president of the California Workers’ Compensation Interpreters Association, said he thought it was customary for defense attorneys to hire the interpreter for the applicant's deposition.

He said he was aware that some applicant attorneys didn't like that practice, but he isn't aware of any legal challenges.

Calhoun said that it "doesn't matter" who hires the interpreter, because "we are impartial participants." He noted that some interpreter services exclusively serve defense attorneys and some exclusively serve applicants' attorneys, but emphasized that an interpreter has an ethical obligation to be neutral. Several interpreter services work for both defense and applicant firms, he said.

"We're just the conduit through which the parties that speak different languages communicate, and that's all we're there for," he said.  

But Jesse Ceniceros, president of Voters Injured at Work, said he would not be comfortable with an interpreter selected by the defense attorney serving as the interpreter for an injured worker. 

"I need somebody that's going to interpret, and interpret in a way that I could be without any suspicions they're working in good faith and are going to interpret properly," he said. "I don't want it to be someone who is beholden to an insurance company (to be paid)." 

Since it is the applicant side that needs the service of the interpreter, he said, "we should have the right to select what interpreter we want."

Applicants' attorney Alan Gurvey of Rowen Gurvey & Win said he has had problems with interpreters who have been hired by defense firms who are not paying attention during depositions. He said he has seen interpreters talking on their cell phones or sending text messages during depositions or failing to provide the applicant with a translation when other people in the room are talking to each other, and not to the applicant. 

Overall though, he said "most of the ones that I have worked with seem to have tried very hard to be honest and fair." The problem, Gurvey opined, is that the defense and the applicant have differing interests, and the interpreter has an interest in getting paid as well. 

He said that he thought having a fee schedule for interpreters was "a step in the right direction" and that it will go a long way in preventing the parties from fighting over the selection of an interpreter.

Gurvey said he thought that Section 5811 was ambiguous though, and if the law really is that the defense has the right to choose the translator for an applicant's deposition, "then it should be made clear either by regulation or in the statutory language." 

Defense attorney Demetra Johal of Laughlin Falbo Levy & Moresi said that she thought allowing the defense to select an interpreter helped to ensure that an injured worker is given adequate translation services.

"It's important to have a certified interpreter who can correctly translate what the injured worker is saying," she said, and the defense is more likely to have the resources to hire the necessary interpreter. 

Johal said she recently had a case involving an applicant from Guam who only spoke Chamorro, so it was difficult to find an interpreter for him, but the defense had the resources to ensure an interpreter was made available.

Applicant attorney Brad Chalk, a past-president of the California Applicants' Attorney Association, said that he preferred selecting the interpreter for his clients because he wanted to be sure they are comfortable with the interpreter and secure in the belief that their words are being accurately translated.

He said he had never let a defense attorney select an interpreter for any of his clients, and he had thought the norm in Northern California was for the applicants' attorney to always make the selection.

Chalk said he sees the interpreter as acting as an agent of his office, and so he wants the interpreter to work for him, so that he knows they will protect the privileged nature of his conversations with his clients, especially in light of reports last year that some interpreter services were compelling interpreters to disclose the substance of conversations they had translated between workers and doctors.

Chalk said he also thought he should be deemed the party "producing" an applicant for a deposition, as he is the one who is making the applicant available for deposition. 

Published on 11/07/2013 by WorkCompCentral, authored by Sherri Okamoto