1. ISSUE 1 2013VOLUME 1
Quarterly
AdvocatePREDESIGNATION:
WHAT IS IT AND WHEN
IS NOTICE REQUIRED
By now all California employers know (or
should know) that an injured employee can be
treated by a personal doctor immediately following
an alleged work injury if: the employer has group
health coverage and the employer was given prior
notice of the doctor’s name and address in writing
before the injury. This is process is called
“predesignating a personal physician.” (Labor
Code §4600).
The personal doctor must be someone who
previously treated the employee, retains their
medical records and has agreed in advance of the
work injury. The Doctor must also have limited his
or her practice of medicine to general practice or be
a board-certified or board-eligible internist,
pediatrician, obstetrician-gynecologist, or family
practitioner; or a multispecialty group of licensed
doctors of medicine or osteopathy (M.D.s or D.O.s)
that provides comprehensive medical services
primarily for nonoccupational injuries and illnesses.
Note a personal chiropractor or acupuncturist may
not be predesignated.
There are several times when written notice of
the opportunity to predesignate must be given to an
employee. First, Labor Code §3551 indicates that
every new employee must be given written notice
of their rights pursuant to Labor Code §4600 at the
time of hire or before the end of the first pay
period. Second, all covered employees must be
given notice at the implementation of an approved
MPN or if the insured employer is changing from
one MPN to another and the change will exceed 60
days. (CCR §9767.12). Lastly, every employer is
required to post a “Notice to Employees” in a
location frequented by employees. (CCR §9881).
There is no annual notice requirement; however,
there are not any regulations that prohibit annual
notice either! ~ Jessica M. Williams, Esq.
75 East Santa Clara Street, Suite 1200
San Jose, CA 95113 ♦ (408) 279-6400
www.acs-lawfirm.com
APublicationbyArmstrong&Shiu,LLP-
AddressingtheLegalNeedsofthe
Workers’CompensationDefense
CommunityandBeyond.
As a result of SB863, new interpreter
services regulations became effective on
8/13/13.1
Per CCR §9795.1.5, interpreters
at hearings and depositions must be
certified.2
CCR §9795.1.6, interpreters at
medical appointments (treatment or
medical legal) must be certified3
for
certain languages,4
unless the claims
administrator provides prior written
consent. SB863 addressed interpretation
privacy concerns by mandating that an
interpreter is “not to act as an agent or
advocate” and “shall not disclose…the
content of the conversations or documents
that the interpreter has interpreted…unless
the disclosure is compelled by court
order.”5
Any attempt to obtain such
information from an interpreter is a “bad
faith tactic” subject to sanctions.6
Defendants often prefer to arrange for
interpretation in order to control costs.
Labor Code §5811(b)(1) states that it is
the “responsibility of any party producing
a witness requiring an interpreter to
arrange for the presence of a qualified
interpreter.”7
Applicant’s attorneys have
used the “producing a witness” language
to assert that they are entitled to select the
interpreter. This issue recently went to
trial at the San Jose WCAB. In the
Contreras v. Gibson Farms case,8
applicant’s attorney refused to allow
applicant’s deposition to proceed unless
he was permitted to select the interpreter.
Judge David L. Lauerman found that
Defendant was the “producing party”
privileged to select the interpreter because
Defendant was the active party which had
noticed the deposition. A WCAB Panel
adopted Judge Lauerman’s report and
denied removal. Though not binding, the
Contreras Panel case provides defendants
with persuasive authority to select the
interpreter when noticing a deposition.
When it comes to medical legal
appointments, CCR §34(c) states that for
PQME appointments, the “interpreter shall
be arranged by the party who is to pay the
cost…” That party is the defendant. The
selection of an interpreter for an AME
may be reached as part of the AME
agreement, though normal practice is for
the defendant to arrange for the interpreter.
________________________
1
Available at:
http://www.dir.ca.gov/DWC/DWCPropRegs/InterpreterCerti
fication/InterpreterCertification_Regs.htm
2
An interpreter is certified if he or she is listed on the State
Personnel Board webpage
(http://jobs.spb.ca.gov/InterpreterListing/) or the California
Courts webpage (http://courts.ca.gov/programs-
interpreters.htm). An exception is made for situations where
a certified interpreter cannot be present.
3
Additional certification options for medical appointment
interpretation only are through the Certification Commission
for Healthcare Interpreters
(https://cchi.learningbuilder.com/Account/Login?ReturnUrl=
%2f) and the National Board of Certification for Medical
Interpreters
(http://www.certifiedmedicalinterpreters.org/registry).
4
A provisionally certified interpreter may be used for
medical appointments if the language is other than Spanish,
Tagalog, Arabic, Cantonese, Japanese, Korean, Portuguese,
or Vietnamese.
5
Labor Code §5811(b)(2).
6
Labor Code §5811(b)(2) provides for sanctions pursuant to
Labor Code §5813 for such conduct.
7
Similar language has now been added to the regulation
dealing with fees for interpreter services, at Reg. 9795.3(f).
8
ADJ7707093.
~ Owen Fennern, Esq.