Primary Language-Speaking Physician Ruled Not Medically Necessary

I came across an interesting article today from David DePaolo on his blog, DePaolo’s Work Comp World. The article, Comunicación No Es Médicamente Necesario, discussed a recent workers’ compensation case in Florida that involved the right to bilingual treatment.

A roofer in 2012, suffered a head injury when he fell 30 to 40 feet off of a ladder. His employer accepted the compensability of the injury and authorized treatment from several doctors, including a neurologist, Dr. Angelo Alves.

Dr. Alves recommended that the claimant undergo a neuropsychological evaluation for his memory, cognition and emotional state. The employer then arranged an appointment with Dr. Arthur J. Forman. Because Dr. Forman did not speak Spanish and the claimant only spoke limited English, his employer arranged for an interpreter for the claimant’s office visits

The claimant objected to the interpreter, and filed a petition for benefits, seeking authorization for an evaluation by a Spanish-speaking neuropsychologist. His reasoning was that he did not want to do it through an interpreter and talk about the intimate details of his life through another person.

Dr. Alves supported the claimant’s claim and testified that the claimant needed to have a neuropsychological evaluation performed by a Spanish-speaking psychologist. It was Dr. Alves’ position that having the evaluation through an interpreter was not the same as with a Spanish-speaking doctor, because the doctor could get the wrong information.

However, the Judge of Compensation Claims was not persuaded by that argument. The claimant appealed, but a split panel of the First District Court of Appeals agreed with the JCC.

The finding of the court was that while a Spanish-speaking provider was preferable, the evidence did not establish medical necessity.

Judge Scott Makar, an appointee to the First District Court of Appeals by current Tea Party-backed Florida governor, Rick Scott, in a concurring opinion, addressed the challenges of meeting health care expectations within the limited resources of any health care delivery system.

According the Judge Makar, “In an ideal world with unlimited resources patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages.” He went on to add, that since this ideal is “unattainable”, “the trajectory of the language access movement in the United States currently has gravitated to the use of translators (for written communication) and interpreters.”

The dissenting opinion, by Judge Bradford Thomas, an appointee of former governor Jeb Bush (who by the way speaks Spanish and is married to a Hispanic woman), argued “that no medical testimony supported the JCC’s view that the Spanish-speaking psychiatric evaluation was not medical necessary, and that the JCC had failed to give a “reason” for rejecting Dr. Alves’ opinion.”

David pointed out that Judge Thomas had the burden of proof backwards and ignored the substantial evidence standard. But, he also pointed out that the majority opinion seemed to take the position that Spanish is a “minority” language, which David points out in the rest of his article, it isn’t.

Before I tackle that issue, I would like to explain why I mentioned who appointed the concurring and dissenting judges, and what struck me as I read the court’s ruling in this case. Had Judge Makar been appointed by any other governor besides Rick Scott, I would have been puzzled as to why they would go out of their way to annoy a growing segment of Florida’s population such as Latinos, especially since they are sensitive to any form of discrimination against their community, such as restricting their right to vote.  This is especially true of non-Cuban Latinos who generally vote for Democrats.

That Rick Scott is a Tea Party-backed politician, and knowing that the Tea Party has elements in it that despises immigrants, both legal and illegal, who are usually Hispanic, Judge Makar’s opinion shows obvious Tea Party bias towards Spanish-speaking people in the state.

His characterization of Spanish as a “minority” language is certainly not true to this former New Yorker who had gone through several areas of Miami, Fort Lauderdale and many other cities in South Florida and felt like I was in the minority. Also, his statement about an ideal world is typical of right-wing conservatives who are opposed to any accommodations to non-English speaking people.

I say this as the grandson of four immigrants who had to learn English and had to speak their native language, Yiddish, at home amongst themselves and other family members and friends, so that the “kinder” would not know what they were talking about. And since my family also came from what was once the Russian Empire, they had to know a smattering of Russian and maybe Polish to converse with neighbors and officials of the government.

But that was a different time in the US, when the National Civic Federation sponsored night classes in English to newly arrived immigrants so that they can assimilate. But it is different now with Latinos, and as has been pointed out before, the younger generation of Latinos already here, speak English and Spanish. I have had classmates in my MHA classes, and have met many others in all areas of South Florida who do.

On the other hand, Judge Thomas’s appointment by Jeb Bush did not surprise me, given his dissenting opinion. It recognizes the reality of life in Florida, and in other states, with regard to Hispanics, and does not, like the Tea Party often does, seek to turn the clock back to a time in the US when only one language was spoken.

Going back to David’s article, demographic research he points out, shows that the Hispanic population has outgrown that of the white population in David’s home state of California and New Mexico, as well as a few other states, according to a Pew Research Center study. The projections, David cites, are that these demographics will be reflected in the overall US population by 2040.

California has about 14 million Hispanics out of an overall population of 33 million. 47% of New Mexico’s population is Hispanic, and while the white population of Texas is still the majority that is projected to change soon, as the Hispanic population growth represents nearly 64% of all population growth since 2000.

Florida, by contrast, David states, has 4.5 million Hispanics, which represents 23% of the population. He notes that because workers’ compensation is state specific, relative to the overall population of the state, the decision by the First District Court of Appeals makes sense. However, that he says can change.

I have discussed the issue of immigration reform and its impact on workers’ compensation and medical tourism in earlier posts, and have cited statistics about the Hispanic population growth in such articles as Immigration Reform on the Horizon: What it means for Medical Tourism and Workers’ Compensation, Immigration and Workers’ Compensation: Round Two, and E PLURIBUS UNUM: Latin American and Caribbean Immigration, Workers’ Compensation and Medical Tourism.

It also occurred to me that the court that decided this recent case was the same court that decided an earlier case that I mentioned in Legal Barriers to Implementing International Providers into Medical Provider Networks for Workers’ Compensation: A White Paper.

In that case, AMS Staff Leasing, Inc. v. Arreola, FL 1st DCA, 2008, the First District Court of Appeals ruled that Arreola, who had been injured loading a truck, was entitled to get treatment in his hometown in Mexico.

The court ruled that “that state law did not preclude the foreign physician’s treatment of the claimant in Mexico. They stated that Florida workers’ compensation law contemplates coverage for non-citizens, and they cited an earlier case in which the court held that undocumented workers were entitled to workers’ compensation coverage in Florida…”

The court “also stated that Florida law indicates that an injured worker is not prohibited from moving from his pre-injury residence in the state, and receiving treatment outside of the state.”

This would appear to indicate that the court in 2008, before Rick Scott became governor, was willing to have workers’ compensation claimants get treated by physicians in their home country who could speak their language, but the court in 2014, with an appointee of Tea Party-backed, Rick Scott, ruled that the claimant in this case had no right to a physician who could speak his language, even if the claimant was seen here in Florida and not in his home country.

It would appear that judges appointed by Tea Party-backed governors, especially in a state like Florida, are trying to deny the rights of Hispanic claimants to Spanish-speaking doctors. Such a ruling in light of future increased Hispanic population growth is not only unconscionable, it smacks of racism and discrimination. But David DePaolo is correct in citing Bob Dylan’s song, “The Times, They Are A Changing.” Hopefully, future courts in Florida and elsewhere will correct this travesty of justice, and when medical tourism in workers’ comp becomes a reality, evaluations by Spanish-speaking physicians will be commonplace occurrences.

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One thought on “Primary Language-Speaking Physician Ruled Not Medically Necessary

  1. Transforming Workers' Comp Post author

    I want to clarify my position on this matter because several people have commented about it today, and there are some things I did not get to add yesterday that I want to say here.

    First off, I never mentioned, nor did David DePaolo, the issue of trained and certified medical translators or interpreters. If there was a mention of that in the court’s decision, David would have mentioned it and I would have reported it. David is an attorney in CA.

    This case centered around one man who needed to be evaluated by a neuropsychologist. The physician that was offered did not speak Spanish, and the injured employee did not speak English very well. The treating doctor, Dr. Alves, while Hispanic himself, is not as fluent as needed by the claimant, who felt uncomfortable discussing his personal life with a third person in the room.

    Therefore he petitioned for a Spanish-speaking neuropsychologist, and as the case was in Florida, it might be logical to assume that in some large hospital in South Florida, such an individual could be found, given the large Hispanic population here. The Judge of Compensation Claims was not persuaded, and the 1st DCA agreed with the JCC.

    I felt this ruling was wrong because the concurring judge on the panel was an appointee of current Florida governor, Rick Scott, a man elected to office with support by the Tea Party. While I don’t know the appointment criteria of the other judges who ruled against the petitioner, I know that the dissenting judge was appointed by Gov. Scott’s predecessor, Jeb Bush.

    I am no fan of either Rick Scott or Jeb Bush, but I do know that Bush speaks Spanish, his wife is Hispanic and his father called Bush’s children, “his little brown ones”.

    What really disturbs me about this case is that six years ago, this same court, in a different case, ruled that a claimant who went home to Mexico could get medical treatment that a doctor in Dallas said he needed, but as he was undocumented and could not return to the US from Mexico, petitioned the state to receive medical treatment there. The court ruled “that state law did not preclude the foreign physician’s treatment of the claimant in Mexico. They stated that Florida workers’ compensation law contemplates coverage for non-citizens, and they cited an earlier case in which the court held that undocumented workers were entitled to workers’ compensation coverage in Florida…” They also ruled that “that Florida law indicates that an injured worker is not prohibited from moving from his pre-injury residence in the state, and receiving treatment outside of the state.”

    This case was cited in my White Paper as an opening to medical tourism, if only slightly. Yet, with regard to this year’s ruling, if the claimant had been allowed to travel to his home country for the neuropsychological evaluation, once such a physician could be found there, there would have been no need for the 1st DCA to hear this case at all.

    The likelihood that he would have to go back home might be remote if there exists such an individual in South Florida, but if none are available, an alternative that could be employed would be to go to whatever country he is from, or another country in that region, and get the evaluation. Certainly, neuropsychology is taught in many of the better medical schools in Latin America and the Caribbean, otherwise, so many American doctors who could not get into American medical schools would not have gone to Guadalajara, Grenada, or any other school.

    This ruling might well prevent medical travel in such cases, not only here in Florida, but in states where Spanish is not the predominate language among medical personnel. Yet, as Slate pointed out last month, Spanish is the 2nd most common language in the US. See the link: http://www.slate.com/articles/arts/culturebox/2014/05/language_map_what_s_the_most_popular_language_in_your_state.html

    The Tea Party-backed governors in many US states may well be making medical travel less likely because they object to the existence of Spanish-speaking immigrants, both documented and undocumented, and will prevent any form of immigration reform that would settle the matter once and for all.

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