Robert Caballero Cruz was a dishwasher Benu LLC DBA Monsieur Benjamin in at San Francisco, when he injured his his chest and abdomen.
After the case was resolved by compromise and release, Bay Area Interpreting filed a petition for costs for the unpaid balance of $75 for the bill for translating at the signing of the compromise and release agreement on June 26, 2019, along with a claim of interest, attorneys’ fees and costs. The case proceeded for two days of trial on the cost petition.
Based on the witness testimony, the documentary evidence and applicable law, the WCJ issued a Findings of Fact, Order and Opinion on Decision finding that cost petitioner did not meet her burden of proof of market rate entitling her to additional payment for her services on June 26, 2019, and that cost petitioner was not entitled to any recovery on the February 2, 2022 petition for costs for penalties, interest and attorneys’ fees in connection with that petition for costs.
Reconsideration was denied for the reasons stated in the WCJ’s report, which were adopted and incorporated in the panel decision of Cruz v Benu LLC DBA Monsieur Benjamin – ADJ10995520 (February 2023)
In this case, the only dispute is that cost petitioner is entitled to the balances of her charges for the June 26, 2019 invoice, which she alleges is the market rate for that service. It contends on reconsideration that it met their burden in establishing the market rate for interpreting services, and that defendant acted in bad faith in objecting to the disputed portion of the invoice at issue, and therefore penalties, interest, costs and attorneys’ fees were warranted.
To recover charges for interpreter services, the interpreter has the burden of proving, among other things, that the fees charged were reasonable. (Guitron v. Santa Fe Extruders, 76 Cal. Comp. Cases 228, 34 (WCAB en banc 2011)
The interpreter shall establish the market rate for the interpreter’s services by submitting documentation to the claims administrator, including a list of recent similar services performed and the amounts paid for those services. (Title 8, California Code of Regulations section 9795.3(b)(2).)
To determine the reasonableness of an interpreter’s services, the WCAB has looked at the factors outlined in the 2002 en banc case of Kunz v. Patterson Floor Coverings, Inc, (67 Cal. Comp. Cases 1588 )which include “1) the usual fee accepted (not charged) by the provider, 2) the usual fee accepted by other medical providers in the same geographical area, 3) other aspects of the economics of the medical provider’s practice that are relevant, and 4) any unusual circumstances in the case.
Even though Kunz discusses what medical providers need to prove in order to prove the reasonableness of their charges, the WCAB has specifically applied the same requirement to provide the usual fee accepted by the provider, as well as other providers in the same geographical area, to interpreters. (See, Better Resource v. Workers’ Comp Appeals Bd. (2008) 73 Cal. Comp. Cases 1071, 1075 (writ denied); Guitron, Supra, 76 Cal. Comp. Cases at 247.)
Cost petitioner submitted approximately 40 invoices for various interpreting services performed in June, 2019. All of the submitted invoices were only from cost petitioner Bay Area Interpreting.
As cost petitioner did not submit any evidence of the usual fee accepted by other interpreters in the same geographical area, cost petitioner failed to establish the market rate for her services. As defendant paid cost petitioner more than what Regulation 9795.3(b)(2) assumes is reasonable for an interpreter to bill for services other than appearances at hearings trials or arbitrations or depositions, cost petitioner was not entitled to any further payment for the interpreting services performed on June 26, 2019.
As defendant timely paid the undisputed portion of the invoice and contested the remaining balance, there was no basis to award costs and attorney fee.