CARMELO CECERES AGUILAR, Employee/Appellant, v. KENDELL DOORS & HARDWARE, INC., and WESTFIELD NAT’L INS. CO., Employer-Insurer/Cross-Appellants, and INTERSOURCE SERVS., LLC, Intervenor/Cross-Appellant, and OCCUPATIONAL INJ. CONSULTANTS, and AM. ACCTS. c/o TWIN CITIES ANESTHESIA ASSOC’S, Intervenors.

The employee appeals from the compensation judge’s denial of payment to Intersource Services, LLC, the intervenor, which cross-appeals for the same reasons.  The employer and insurer cross-appeal asserting that one of the compensation judge’s findings is not supported by substantial evidence.  We affirm as modified.

On July 12, 2019, the employee, Carmelo Ceceres Aguilar, suffered an admitted injury while working for the employer, Kendall Doors & Hardware.  The employee was holding a hand grinder under his arm while plugging the grinder into an electric socket.  The grinder immediately started and caused a severe laceration to the employee’s right forearm and bicep.

The employee is a native Spanish speaker.  Recognizing this, the employer and its insurer appointed a Spanish-speaking qualified rehabilitation consultant (QRC) to assist the employee with medical management and return to work issues.  The employee felt this QRC did not speak Spanish well enough and had difficulties in their communication.  The employee made a timely request for a change of QRC and selected Kirsten Engelke, who did not speak Spanish.

Deciding that she would not be able to communicate with the employee without an interpreter, QRC Engelke hired the intervenor to provide interpretive services.  On September 6, 2019, QRC Engelke met with the employee for the first time and an interpreter from the intervenor was present.

In her initial report dated September 11, 2019, QRC Engelke stated “Mr. Ceceres Aguilar reviewed with me that he speaks very little English, and at his medical appointments there was an interpreter present that was coordinated through the clinic, and interpreted for the doctor, but he did not have an interpreter for the prior QRC, and was never able to communicate well with the prior QRC at appointments, or express his concerns because there was not an interpreter available to assist them.”  (Ex. 7.)  QRC Engelke completed a rehabilitation plan amendment (R- 3).  In the R-3, QRC Engelke wrote that there would be a change of QRC and that she would provide various rehabilitation services, such as medical management, assisting the employee in return to work, vocational counseling and guidance, and providing administrative services including completion of paperwork moving forward.  QRC Engelke itemized all projected costs and projected completion dates for the services.  She did not indicate on the form whether any barrier existed to complete the rehabilitation plan.  Both QRC Engelke and the employee signed the R-3.

On April 14, 2020, QRC Engelke completed her closure report stating that the employee had been released to work without restrictions and that she would be closing her file.

There is no indication in QRC Engelke’s records that she hired Intersource Services, nor is there any note about anticipated costs associated with hiring an interpreter.  The records also make no mention of QRC Engelke’s lack of ability to speak Spanish or that an interpreter was being used to effectuate the communication between her and the employee.^[1]  Likewise, whatever agreement existed as to how Intersource Services would be paid is not in evidence.  Intersource Services billed the employer and insurer directly for the cost of interpretive services.  The employer and insurer denied payment.  Intersource Services did not bill the QRC for its services.

On March 9, 2020, the employee filed a rehabilitation request seeking approval of the employee’s choice of interpreter for the administration of rehabilitation services.  The employer and insurer objected, asserting that injured workers do not have a right for payment of interpretive services in receiving rehabilitation benefits.  Following an administrative conference, it was determined that the employer and insurer were responsible for some of the interpretive services so that the employee could effectively receive QRC services.  Some of the services provided were found not reasonable and necessary.  The employer and insurer timely filed a request for formal hearing.

On September 8, 2021, Intersource Services filed a motion to intervene.  The motion sought payment for interpretive services provided from September 5, 2019, through May 1, 2020. The documents attached to the motion to intervene are essentially billing records indicating a date of service, the charge for the date of service, and a short indication of the type of service performed on the given day.  The three primary descriptions of services provided were “3-way message,” “onsite interpretation,” and “document translation.”

A hearing was held before a compensation judge on September 10, 2021.  At issue was whether interpretive and translation services provided by the intervenor were reasonable, necessary, and payable by the employer and insurer for medical visits and rehabilitation services. The parties stipulated that the amount in dispute for the intervenor’s services was $6,235.85.

An interpreter was present throughout the hearing.  QRC Engelke testified that she does not speak Spanish although she understands “some Spanish.” (T. 80.)  She has provided QRC services to non-English speakers in her career as a QRC and estimates that she has provided services to hundreds of such injured workers.  She testified that the employee told her that he did not have an interpreter with his first QRC and had difficulty communicating with that QRC due to the lack of an interpreter.  She also testified that many medical clinics have interpreters present for medical appointments and that while sometimes a medical clinic’s interpreter will be at the pre- and post-doctor appointments with the QRC and the injured workers, there is no real consistency on whether such interpreters will be present.  She explained that without effective communication with an injured worker she is unable to provide rehabilitation assistance.

When asked on cross-examination whether she sought authorization from the insurer to hire the intervenor for interpretive services, QRC Engelke testified that she had not reviewed all of her reports recently but believed that there was a reference to seeking such authorization but could not confirm or deny it.  She later stated that she knew that the claims adjuster for the insurer was aware that the employee spoke Spanish and that she, the QRC, did not, but that she does not believe that she specifically sought authorization from the insurer to hire the intervenor.  (T. 92.)  She also testified that the employee requested the interpreter’s presence at medical appointments, such as physical therapy and work hardening, even when his QRC was not present.  She testified that she did not tell the intervenor that the insurer would pay for the interpretive services.

The owner of Intersource Services, Juan Carlos Vidal Franco, testified that the company received a request to provide services from QRC Engelke, but was not contracted by the employer or insurer.  He did not submit his bill for payment to the QRC because he understood that the workers’ compensation insurer would pay for services for injured employees.  He testified that from his own personal experience as a non-native English speaker, it is essentially impossible for injured workers to navigate the workers’ compensation system without an interpreter if they are not native English speakers.  

The employee testified that he had difficulty understanding his first QRC and that she often would just tell him to sign paperwork without him understanding what he was signing.  He also testified that the first QRC did not explain things and did not have an interpreter when meeting with the employee.

On November 15, 2021, the compensation judge issued his findings and order and denied the employee’s request for payment of the intervenor’s services.  In his memorandum, he noted that there was nothing in the workers’ compensation statute or rules that called for employers and insurers to pay for interpretive services for injured workers to access QRC or other rehabilitation services.  The compensation judge concluded that the employer and insurer were not obligated to pay for such services.  The employee appeals, and the employer and insurer and the intervenor cross-appeal.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The employee and the intervenor both appeal the compensation judge’s denial of payment for interpretive services.^[2]  They argue that non-English speaking injured workers cannot have their choice of QRC and cannot effectively receive rehabilitation benefits if employers and insurers are not required to pay for an interpreter to allow communication between the QRC and employee.  We find that the issue raised, while of importance, is not reached under the facts of this case.  Instead, the findings and order of the compensation judge are affirmed due to the failure of the QRC to inform the employer and insurer, as required by statute, of the need for an interpreter.^[3]

Minn. Stat. § 176.102 provides that an employer is liable for rehabilitation expenses including the cost of rehabilitation services and the cost of “supplies” necessary for implementation of the plan.  Minn. Stat. § 176.102, subd. 9(a)(2).  The statute also provides that the employer and insurer shall pay for expenses agreed to be paid, that charges for rehabilitation services shall be submitted on proper forms, and that no payment shall be made unless listed on the prescribed forms.  Minn. Stat. § 176.102, subd. 9(b).  Further, a rehabilitation consultant may not collect payment from other persons, including the employee, for services under Minn. Stat. § 176.102, if the employer is relieved of liability.  Minn. Stat. § 176.102, subd. 9(c).

The employee and the intervenor assert that if a QRC cannot effectively communicate with an injured worker due to a language barrier, the failure to have interpretive services basically precludes the employee from receiving services from the QRC of his or her choosing.  They further argue that without the employer and insurer being liable for the cost of interpretive services when necessary, the plan essentially cannot be implemented, depriving the employee of that statutory right.

The employer and insurer assert that interpretive services are not listed in the rehabilitation statute or anywhere else in the Workers’ Compensation Act, that there are no rules developed by the Department of Labor and Industry regarding interpretive services, and as such the legislature simply did not intend for the employer and insurer to be responsible for interpretive services.  They further assert that if a QRC wishes to obtain interpretive services to implement effective communication with an injured employee, that is simply a cost of doing business.^[4]

In this case, interpretive services were never listed as part of the plan.  The rehabilitation statute and rules are clear that the QRC must put together a rehabilitation plan listing the services to be provided and the expected costs.^[5]  The plan must then be modified and amended as necessary, keeping the employer and insurer aware of the services being provided and the expected costs.  Here, the QRC did not follow these rules and simply hired the interpreter without informing the employer and insurer.  There is no evidence that the QRC made the employer and insurer aware of the need for interpretive services, let alone the costs, before they were provided.  Because the QRC did not inform the employer and insurer of her actions regarding the interpreter, the employer and insurer cannot be held responsible to pay for the interpreter.  We need not reach the issue of whether employers and insurers must pay for such services when the rules are otherwise followed.

Finally, we note that the employer and insurer cross-appeal, asserting that Finding 2 is not fully supported by the record.  In Finding 2, the compensation judge found that the first and second QRCs did not speak Spanish.  This finding is not supported by the evidence.  While the first QRC apparently did not speak Spanish well enough to satisfy the employee, that QRC did speak Spanish.  Consequently, we modify Finding 2 to read, “The employee had used two different QRCs, the first of whom spoke Spanish (the employee’s native language), while the second did not.”  (Modification underlined).

Accordingly, we affirm the compensation judge’s order denying payment to the intervenor for the interpretive services and modify Finding 2.^[6]