Amended in Assembly May 9, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2230

Introduced by Assembly Member Chu

February 18, 2016

An act to amend begin delete Sections 4600, 5502, and 5710 end delete begin insert Section 5811 end insert of the Labor Code, relating to workers’ compensation.

LEGISLATIVE COUNSEL’S DIGEST

AB 2230, as amended, Chu. Workers’ compensation: language interpreters.

begin delete

(1) Existing

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begin insert Existing end insert law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, that generally requires employers to secure the payment of workers’ compensation for injuries incurred by their employees that arise out of, or in the course of, employment. Existing law requires an employer to provide all medical, surgical, chiropractic, acupuncture, and hospital treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury, and makes the employer liable for the reasonable expense incurred by or on behalf of the employee in providing treatment, as specified. begin insert Existing law authorizes a qualified interpreter to render services in various settings for purposes of workers compensation claims. Existing law prohibits an interpreter from disclosing to any person who is not an immediate participant in the communications the content of the conversations or documents that the interpreter has interpreted or transliterated unless the disclosure is compelled by court order. end insert

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This bill would expressly include within this prohibition the disclosure of any communication or transliteration involving attorney-client privileged communications, and would make additional nonsubstantive conforming changes.

end insert begin delete

Existing law requires, in a workers’ compensation proceeding, an employer to provide the services of a qualified interpreter, as defined, when, 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. In addition, existing law requires, upon request of the injured employee, the employer or insurance carrier to pay for interpretation services 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.

end delete begin delete

This bill would require the interpreter to be an interpreter of the employee’s choice under both circumstances. The bill would also authorize the employer to select the interpreter if interpretation services are required and the employee has not selected an interpreter.

end delete begin delete

(2) Existing law establishes the Workers’ Compensation Appeals Board and vests the appeals board with full power, authority, and jurisdiction to try and to determine specified matters in workers’ compensation proceedings, including matters relating to the recovery of compensation, and enforcement against the employer or an insurer of liability for compensation imposed upon the employer. Existing law authorizes the appeals board to appoint one or more workers’ compensation judges in any proceeding. Existing law governs hearing held before the appeals board or a workers’ compensation judge.

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This bill would require, upon request from either the employee or witness, the employer to pay for the services of a language interpreter who is selected by the employee and who meets specified criteria, if interpretation services are required in workers’ compensation proceedings because the injured employee or witness does not proficiently speak or understand the English language. The bill would authorize the employer to select the interpreter if interpretation services are required and the employee has not selected an interpreter, as specified.

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(3) Existing law authorizes the appeals board, a workers’ compensation judge, or any party to the action or proceeding, in any investigation or hearing before the appeals board, to cause the deposition of witnesses. Existing law requires the employer to pay for the services of a language interpreter, upon request from either a witness or deponent, if interpretation services are required because the injured employee or deponent does not proficiently speak or understand the English language.

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This bill would require the interpreter to be selected by the employee, but would also authorize the employer to select the interpreter if interpretation services are required and the employee has not selected an interpreter. The bill would also authorize a witness, rather than a deponent, who does not proficiently speak or understand the English language to request the employer to pay for the services of a language interpreter.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 5811 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

5811.  

(a) No fees shall be charged by the clerk of any court
for the performance of any official service required by this division,
except for the docketing of awards as judgments and for certified
copies of transcripts thereof. In all proceedings under this division
before the appeals board, costs as between the parties may be
allowed by the appeals board.

(b) (1) It shall be the responsibility of any party producing a
witness requiring an interpreter to arrange for the presence of a
qualified interpreter.

(2) A qualified interpreter is a language interpreter who is
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. The duty
of an interpreter is to accurately and impartially translate oral
communications and transliterate written materials, and not to act
as an agent or advocate. An interpreter shall not disclose to any
person who is not an immediate participant in the communications
the content of the conversations or documents that the interpreter
has interpreted or begin delete transliterated end delete begin insert transliterated, including, regardless
of the circumstances of where or how the communication occurred,
any communication or transliteration involving attorney-client
privileged communications, end insert unless the disclosure is compelled by
court order. An attempt by any party or attorney to obtain
begin delete disclosure end delete begin insert disclosure, including, regardless of the circumstances
of where or how the communication occurred, disclosure of any
communication or transliteration involving attorney-client
privileged communications, end insert is a bad faith tactic that is subject to
Section 5813.

begin delete

Interpreter

end delete

begin insert (3) end insert begin insert   end insert begin insert Interpreter end insert fees that are reasonably, actually, and necessarily
incurred shall be paid by the employer under this section, provided
they are in accordance with the fee schedule adopted by the
administrative director.

begin delete

A

end delete

begin insert (4) end insert begin insert   end insert begin insert A end insert qualified interpreter may render services during the
following:

(A) A deposition.

(B) An appeals board hearing.

(C) A medical treatment appointment or medical-legal
examination.

(D) During those settings which the administrative director
determines are reasonably necessary to ascertain the validity or
extent of injury to an employee who does not proficiently speak
or understand the English language.

begin delete

SECTION 1.  

Section 4600 of the Labor Code is amended to
read:

4600.  

(a) Medical, surgical, chiropractic, acupuncture, and
hospital treatment, including nursing, medicines, medical and
surgical supplies, crutches, and apparatuses, including orthotic and
prosthetic devices and services, that is reasonably required to cure
or relieve the injured worker from the effects of his or her injury
shall be provided by the employer. In the case of his or her neglect
or refusal reasonably to do so, the employer is liable for the
reasonable expense incurred by or on behalf of the employee in
providing treatment.

(b) As used in this division and notwithstanding any other law,
medical treatment that is reasonably required to cure or relieve the
injured worker from the effects of his or her injury means treatment
that is based upon the guidelines adopted by the administrative
director pursuant to Section 5307.27.

(c) Unless the employer or the employer’s insurer has
established or contracted with a medical provider network as
provided for in Section 4616, after 30 days from the date the injury
is reported, the employee may be treated by a physician of his or
her own choice or at a facility of his or her own choice within a
reasonable geographic area. A chiropractor shall not be a treating
physician after the employee has received the maximum number
of chiropractic visits allowed by subdivision (c) of Section 4604.5.

(d) (1) If an employee has notified his or her employer in
writing prior to the date of injury that he or she has a personal
physician, the employee shall have the right to be treated by that
physician from the date of injury if the employee has health care
coverage for nonoccupational injuries or illnesses on the date of
injury in a plan, policy, or fund as described in subdivisions (b),
(c), and (d) of Section 4616.7.

(2) For purposes of paragraph (1), a personal physician shall
meet all of the following conditions:

(A) Be the employee’s regular physician and surgeon, licensed
pursuant to Chapter 5 (commencing with Section 2000) of Division
2 of the Business and Professions Code.

(B) Be the employee’s primary care physician and has
previously directed the medical treatment of the employee, and
who retains the employee’s medical records, including his or her
medical history. “Personal physician” includes a medical group,
if the medical group is a single corporation or partnership
composed of licensed doctors of medicine or osteopathy, which
operates an integrated multispecialty medical group providing
comprehensive medical services predominantly for
nonoccupational illnesses and injuries.

(C) The physician agrees to be predesignated.

(3) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a health care service
plan licensed pursuant to Chapter 2.2 (commencing with Section
1340) of Division 2 of the Health and Safety Code, and the
employer is notified pursuant to paragraph (1), all medical
treatment, utilization review of medical treatment, access to
medical treatment, and other medical treatment issues shall be
governed by Chapter 2.2 (commencing with Section 1340) of
Division 2 of the Health and Safety Code. Disputes regarding the
provision of medical treatment shall be resolved pursuant to Article
5.55 (commencing with Section 1374.30) of Chapter 2.2 of
Division 2 of the Health and Safety Code.

(4) If the employee has health care coverage for nonoccupational
injuries or illnesses on the date of injury in a group health insurance
policy as described in Section 4616.7, all medical treatment,
utilization review of medical treatment, access to medical
treatment, and other medical treatment issues shall be governed
by the applicable provisions of the Insurance Code.

(5) The insurer may require prior authorization of any
nonemergency treatment or diagnostic service and may conduct
reasonably necessary utilization review pursuant to Section 4610.

(6) An employee shall be entitled to all medically appropriate
referrals by the personal physician to other physicians or medical
providers within the nonoccupational health care plan. An
employee shall be entitled to treatment by physicians or other
medical providers outside of the nonoccupational health care plan
pursuant to standards established in Article 5 (commencing with
Section 1367) of Chapter 2.2 of Division 2 of the Health and Safety
Code.

(e) (1) When at the request of the employer, the employer’s
insurer, the administrative director, the appeals board, or a workers’
compensation administrative law judge, the employee submits to
examination by a physician, he or she shall be entitled to receive,
in addition to all other benefits herein provided, all reasonable
expenses of transportation, meals, and lodging incident to reporting
for the examination, together with one day of temporary disability
indemnity for each day of wages lost in submitting to the
examination.

(2) Regardless of the date of injury, “reasonable expenses of
transportation” includes mileage fees from the employee’s home
to the place of the examination and back at the rate of twenty-one
cents ($0.21) a mile or the mileage rate adopted by the Director
of the Department of Human Resources pursuant to Section 19820
of the Government Code, whichever is higher, plus any bridge
tolls. The mileage and tolls shall be paid to the employee at the
time he or she is given notification of the time and place of the
examination.

(f) When 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 of his or her choice
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. The employer may select the interpreter
if interpretation services are required and the employee has not
selected an interpreter.

(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 of his
or her choice 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 interpretation
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. The employer may select the interpreter if
interpretation services are required and the employee has not
selected an interpreter.

(h) Home health care services shall be provided as medical
treatment only if reasonably required to cure or relieve the injured
employee from the effects of his or her injury and prescribed by
a physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business
and Professions Code, and subject to Section 5307.1 or 5307.8.
The employer shall not be liable for home health care services that
are provided more than 14 days prior to the date of the employer’s
receipt of the physician’s prescription.

SEC. 2.  

Section 5502 of the Labor Code is amended to read:

5502.  

(a) Except as provided in subdivisions (b) and (d), the
hearing shall be held not less than 10 days, and not more than 60
days, after the date a declaration of readiness to proceed, on a form
prescribed by the appeals board, is filed. If a claim form has been
filed for an injury occurring on or after January 1, 1990, and before
January 1, 1994, an application for adjudication shall accompany
the declaration of readiness to proceed.

(b) The administrative director shall establish a priority calendar
for issues requiring an expedited hearing and decision. A hearing
shall be held and a determination as to the rights of the parties
shall be made and filed within 30 days after the declaration of
readiness to proceed is filed if the issues in dispute are any of the
following, provided that if an expedited hearing is requested, no
other issue may be heard until the medical provider network dispute
is resolved:

(1) The employee’s entitlement to medical treatment pursuant
to Section 4600, except for treatment issues determined pursuant
to Sections 4610 and 4610.5.

(2) Whether the injured employee is required to obtain treatment
within a medical provider network.

(3) A medical treatment appointment or medical-legal
examination.

(4) The employee’s entitlement to, or the amount of, temporary
disability indemnity payments.

(5) The employee’s entitlement to compensation from one or
more responsible employers when two or more employers dispute
liability as among themselves.

(6) Any other issues requiring an expedited hearing and
determination as prescribed in rules and regulations of the
administrative director.

(c) The administrative director shall establish a priority
conference calendar for cases in which the employee is represented
by an attorney or is or was employed by an illegally uninsured
employer and the issues in dispute are employment or injury arising
out of employment or in the course of employment. The conference
shall be conducted by a workers’ compensation administrative law
judge within 30 days after the declaration of readiness to proceed.
If the dispute cannot be resolved at the conference, a trial shall be
set as expeditiously as possible, unless good cause is shown why
discovery is not complete, in which case status conferences shall
be held at regular intervals. The case shall be set for trial when
discovery is complete, or when the workers’ compensation
administrative law judge determines that the parties have had
sufficient time in which to complete reasonable discovery. A
determination as to the rights of the parties shall be made and filed
within 30 days after the trial.

(d) (1) In all cases, a mandatory settlement conference, except
a lien conference or a mandatory settlement lien conference, shall
be conducted not less than 10 days, and not more than 30 days,
after the filing of a declaration of readiness to proceed. If the
dispute is not resolved, the regular hearing, except a lien trial, shall
be held within 75 days after the declaration of readiness to proceed
is filed.

(2) The settlement conference shall be conducted by a workers’
compensation administrative law judge or by a referee who is
eligible to be a workers’ compensation administrative law judge
or eligible to be an arbitrator under Section 5270.5. At the
mandatory settlement conference, the referee or workers’
compensation administrative law judge shall have the authority to
resolve the dispute, including the authority to approve a
compromise and release or issue a stipulated finding and award,
and if the dispute cannot be resolved, to frame the issues and
stipulations for trial. The appeals board shall adopt any regulations
needed to implement this subdivision. The presiding workers’
compensation administrative law judge shall supervise settlement
conference referees in the performance of their judicial functions
under this subdivision.

(3) If the claim is not resolved at the mandatory settlement
conference, the parties shall file a pretrial conference statement
noting the specific issues in dispute, each party’s proposed
permanent disability rating, and listing the exhibits, and disclosing
witnesses. Discovery shall close on the date of the mandatory
settlement conference. Evidence not disclosed or obtained
thereafter shall not be admissible unless the proponent of the
evidence can demonstrate that it was not available or could not
have been discovered by the exercise of due diligence prior to the
settlement conference.

(e) In cases involving the Director of Industrial Relations in his
or her capacity as administrator of the Uninsured Employers Fund,
this section shall not apply unless proof of service, as specified in
paragraph (1) of subdivision (d) of Section 3716, has been filed
with the appeals board and provided to the Director of Industrial
Relations, valid jurisdiction has been established over the employer,
and the fund has been joined.

(f) If interpretation services are required because the injured
employee or witness does not proficiently speak or understand the
English language, upon request from either the employee or
witness, the employer shall pay for the services of a language
interpreter who is selected by the employee and who is 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. The employer
may select the interpreter if interpretation services are required
and the employee has not selected an interpreter. The fee to be
paid by the employer shall be in accordance with the fee schedule
adopted by the administrative director and shall include any other
deposition-related events as permitted by the administrative
director.

(g) Except as provided in subdivision (a), this section shall apply
irrespective of the date of injury.

SEC. 3.  

Section 5710 of the Labor Code is amended to read:

5710.  

(a) The appeals board, a workers’ compensation judge,
or any party to the action or proceeding, may, in any investigation
or hearing before the appeals board, cause the deposition of
witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil actions in
the superior courts of this state under Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure. To
that end the attendance of witnesses and the production of records
may be required. Depositions may be taken outside the state before
any officer authorized to administer oaths. The appeals board or
a workers’ compensation judge in any proceeding before the
appeals board may cause evidence to be taken in other jurisdictions
before the agency authorized to hear workers’ compensation
matters in those other jurisdictions.

(b) If the employer or insurance carrier requests a deposition to
be taken of an injured employee, or any person claiming benefits
as a dependent of an injured employee, the deponent is entitled to
receive in addition to all other benefits:

(1) All reasonable expenses of transportation, meals, and lodging
incident to the deposition.

(2) Reimbursement for any loss of wages incurred during
attendance at the deposition.

(3) One copy of the transcript of the deposition, without cost.

(4) A reasonable allowance for attorney’s fees for the deponent,
if represented by an attorney licensed by the State Bar of this state.
The fee shall be discretionary with, and, if allowed, shall be set
by, the appeals board, but shall be paid by the employer or his or
her insurer.

(5) If interpretation services are required because the injured
employee or witness does not proficiently speak or understand the
English language, upon a request from either the employee or
witness, the employer shall pay for the services of a language
interpreter who is selected by the employee and who is 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. The employer
may select the interpreter if interpretation services are required
and the employee has not selected an interpreter. The fee to be
paid by the employer shall be in accordance with the fee schedule
adopted by the administrative director and shall include any other
deposition-related events as permitted by the administrative
director.

end delete