Podcast featuring attorney Robert Wisniewski: Using an Interpreter—Here’s What You Need to Know
Intro: Before we begin today’s episode, we would like to thank our sponsors: Posh Virtual Receptionists and MerusCase.
Workers’ Comp Matters, the podcast dedicated to the laws, the landmark cases and the people who make up the diverse world of workers compensation. Here are your hosts, Jud and Alan Pierce.
Alan Pierce: Hello, again. This is Alan Pierce and Judson Pierce on Workers’ Comp Matters here on the Legal Talk Network bringing you another show dealing with issues surrounding representing injured workers in industrial accidents and workers’ compensation claims.
Today’s show is going to feature two guests and we’re going to talk about representing the immigrant labor force, whether they’re documented or undocumented, and the particular issues that are endemic to representing this segment of our very necessary and growing workforce and economy in the United States.
We’re very pleased to have as our guest for the first half of the episode Attorney Robert or Bob Wisniewski from the law offices of Robert Wisniewski in Phoenix, Arizona, followed by his associate Javier Grajeda, to talk about these subjects.
Bob is going to focus on interpreters or others who help injured workers by providing necessary testimony or even communicating with their lawyers about their injuries.
Jud Pierce: Bob Wisniewski’s practice not only handles injuries of state employees, but also workers’ comp claims of first responders and professional athletes. No matter who you are, they will always provide quality representation throughout Arizona.
Mr. Wisniewski himself has successfully litigated thousands of workers’ compensation hearings before the Industrial Commission of Arizona. No other claimants attorney in Arizona has this much experience, so we’re delighted to have you, Bob, on as our guest today. Welcome.
Robert Wisniewski: Thank you. Thank you, Jud, and thank you, Alan. I’m happy to be here with the Legal Talk Network to discuss this subject and workers’ compensation.
What we’re really going to talk about is not necessarily the use of the interpreter, but how they can assist in communicating, as you just mentioned. It’s no different than if you have an English‑speaking individual. You have to make sure that you’re going to represent that person with competency and integrity and they’re going to understand what their story is that they’re attempting to tell the administrative law judge.
It’s a little bit more difficult when we encounter people from other cultures who are injured. As the country becomes more diverse, these folks that I’m going to term “limited English proficiency” are the individuals we’re talking about whether they’re documented or undocumented.
I would say maybe 30 years ago here in Phoenix, we probably did not represent a single Spanish‑speaking individual 30, 35 years ago. As our economy has boomed here in Arizona, we represent I would say more than half of our practice is Spanish-speaking individuals.
So we have to be conscious of making sure that they understand, first of all, that they’re going to go to court. Sometimes, we have people who just don’t even show up on time and we have to be careful of that.
Then we get to the interpreter. Now, you’re in the courtroom and you have an individual who doesn’t speak the language correctly or competently and may not have a great deal of formal education. I think that goes across the spectrum of whether they speak English, and now we’re seeing much more Arabic and other languages. We’ve represented some people from Liberia and we’re dealing with lots of dialects. We have to focus now on what the culture is telling us, the individual.
We always have the interpreter. The court has to have an interpreter because that’s the only way the folks are going to have their rights protected.
So at the beginning of a hearing, before the judge comes out, what I like to do is have the interpreter… we’re acquainted with many of them, have a little conversation with my client just about where they’re from, what part of the country, so that they understand whether or not there’s an unusual dialect.
Because some words just don’t translate the same. There’s a Spanish word for truck and there’s el troca. So we have the slang word for truck too. So we’re always trying to make sure that the people who have limited English proficiency are comfortable. When we visit them here in the office and prepare them, we prepare them always with a competent professional interpreter if we don’t speak that language.
My colleague, Mr. Gajeda, who will speak a little bit later, is totally fluent in Spanish so he doesn’t need the interpreter. He is able to converse with the clients on their own.
When we’re trying to get a point across, we have to make sure that the person may be looking down. They may be looking away. That doesn’t mean that they’re hiding something, that they’re not telling the truth. They’re trying to perhaps respect the fact that there’s a lawyer in the room and there’s a judge. In their culture, that may be a sign of humility and respect.
We’re trying to have the individual maybe perk up a little bit and look at the judge. We always say, “Look at the judge. Smile at the judge.” The interpreter is useful in helping.
What I try to do when we are using interpreters is always speak in the first person. We sometimes can tell an interpreter is not a qualified interpreter when you ask them the question of the worker, “What is your name?” and I’ve had the interpreter give me her name, then it went downhill after that. We recognized very shortly that it wasn’t an interpreter. She just could translate the language. So we had to stop that hearing and get a qualified interpreter.
But when we’re reading, asking for information, we try to break the question up into pieces so that it gets translated in pieces. Lawyers have a tendency to come up with large and long questions that may not be familiar language, but if we can break it up into little pieces, like, “Okay, what happened next,” and let the person say that, then the interpreter can deal with a simple question and then wait for the interpreted response and then proceed. It is a little bit like batting a ball over a ping-pong or tennis net.
There are times when we’ll see the interpreter and the person with limited English proficiency maybe have a sidebar talk. That means that they’re not getting it. So we have to stop the proceeding at that time and ask them, “Are you understanding the words?”
Some words have different meanings. The word in Spanish for belt and the word for your waist are the same word. So it can be the same word.
We have people who think that they’re interpreting and they’re saying, “Well, he’s saying he got hurt at his belt.” And we’re saying, “No, he really got hurt at his waist area.” So we have to often go back to the interpreter and make sure that they understand what that person is saying.
One of the other problems we have is when we have a longer question but a short answer. The lawyer asks a question, the interpreter asks maybe a question with two or three or four or five phrases and we get a single yes or no. We’re not sure then that that person really is understanding what’s going on.
That’s why when we have those short answers to a large question, we try to break it up again. We may go back again.
So the hearings are generally longer with the interpreters. If it’s virtual, and here in Arizona we have been virtual for almost 99% of our industrial hearings for the last two years. I haven’t set foot in the building in two years, and that’s statewide. We used to have the judges ride circuit and go out and have hearings all across the state, but, now, because of the technology, it’s all done via Zoom or Google platform.
Alan Pierce: Bob, you use the word in your answers about your client telling a story. Those of us who do this for a living and have done it, we realize that we are storytellers or, even more to the point, we are people that will assist our clients to tell their story. And that is really how to best communicate to the fact-finding judge who is all he or she knows about the claim is what’s on paper. And when they finally see the client in person on the witness stand, they have this limited time to tell their story.
So you bring up two points that I wanted you to expand upon. One is it isn’t simply the hearing where the client testifies with the added obstacle of communicating in a different language, but the medical records, which serve as the foundation of the case, oftentimes are created by personnel who may not be interpreting or even knowing what the client is telling them. So we have that issue.
The second issue I’d like you to touch on before Jud asks a question is we can prepare our clients how to answer the questions but, when you turn the case over to the defense attorney for the insurance company, he or she is going to ask the questions they want. When you have a client who is, first of all, not proficient in English and is nervous to begin with and, now, is being faced with leading questions from an unfriendly source, that added obstacle of having it go through a third‑party interpreter has to be extraordinarily difficult.
Perhaps you can touch on both of those issues.
Robert Wisniewski: Often, when there’s someone leading them, they’re very good at answering because they think, “Okay, if I answer, I get out of here. I don’t have to sit here and answer this other lawyer keep asking me questions.”
Now, often, I find that sometimes I have to prepare them in advance and say, “They’re going to ask you some questions and they’re going to ask you questions about this and that, and you have to be prepared to maybe give a little longer answer than he would like you to pin down to a yes or no or, gee, you didn’t tell anybody that you got hurt right away.”
He might say, “Well, no, I didn’t tell them right away but I showed them that I was hurt.”
I had one worker, unfortunately, he was English-speaking so I thought he spoke English, I asked him, “Did you tell your boss that you got hurt?” And he said, “I cogitated it to him.”
And I said, “Well, do you know what the word ‘cogitate’ means?” And he said no. I said, “Why did you find the need to work it in here today?” Then we had to go back and unravel it.
It’s even harder with the language after the defense is cross-examining because, as Alan pointed out, the cross-examiner is going to lead and try to get them to a specific point and some admissions that will hurt them. Then I have to come back on redirect.
Alan Pierce: And I think that a client will follow those leading questions because they want to give an answer that’s going to satisfy the questioner. They don’t appreciate that the interest of that questioner is not the interest that they want to portray and to be agreeable. Leading questions can be extremely effective with a witness who hears those questions through an interpreter.
Robert Wisniewski: You’re absolutely correct. I often say to them, “I’m working too hard to get the information for you to tell your story and you’re agreeing to everything that the defense is going to say, that’s not going to help you. So listen to the question and then try to answer the question that he’s asking you, but maybe figure out where he’s going.” Which that’s a nuance. That’s really difficult in different cultures.
Jud Pierce: Do you find yourself having to rely on friends or family from time to time without the certified interpreter available?
Robert Wisniewski: We do, rarely. In the office perhaps we do that, but I think in the court… I’m fairly conversant in Spanish but, technically, I would not feel comfortable if I had to help to present a case in terms of being the interpreter.
A lot of times the family is probably biased and maybe not… they all have their own agenda and their agenda may not be the agenda that we’re trying to portray through the interpreter. We’re helpful here because we have lots of good interpreters and they’re required to be court‑certified.
One thing that you’re pointing out, Jud, is that the nuances don’t come through. Sometimes, we get an interpreter that’s really good with inflection and can put some little emphasis back. Because the translated word doesn’t reflect the emotion of the individual. An interpreter who puts an inflection on, and there’s several that I love to see when they’re there, because you know it’s almost going to be like watching a play because they are very good in not only interpreting but a gesture and an inflection. So we have to be careful about who is the interpreter.
Of course, I think now, as we get into the other languages that are not as common, such as Spanish is relatively common here but the other languages, we run into real problems with the family being the interpreter or not having a certified interpreter in that dialect.
The example I gave in one presentation was we had a fellow who was from Liberia. He had very limited English to start out with and very limited vocabulary. He hurt his shoulder working in a slaughterhouse. But when he would point to his shoulder, he would say, “I hurt my hand.”
We realized he did not know the word for ‘shoulder’. But when he was pointing with his hand, he was really trying to say to us, “I hurt this part of my body,” so we had to work with him. I think we had the deposition scheduled and rescheduled four or five times before he could understand. We made him understand that he has to tell us that body part as well as show it.
Jud Pierce: You mentioned a few times the amount of work and the hours are more than an English‑speaking worker’s case might take. Can you petition the court for your enhanced fees or are they just statutory? You get the statutory fee. How does it work in terms of paying the interpreters? Do you have to come up with that at your law office’s expense? What happens?
Robert Wisniewski: Great question. In Arizona, the court provides the interpreter for the hearings at the Industrial Commission’s expense.
We don’t take a lot of pre-hearing depositions. We take a lot of testimony. We have an initial hearing where the applicant will testify, and that’s predominantly where we’ll see the interpreter. We then may have another hearing weeks later where lay witnesses might come in and portray the scene of what happened.
Many times, the judge will ask, “Well, will I need an interpreter for those lay witnesses and will I need an interpreter for your client to hear and get translated the testimony of the lay witnesses?”
Of course we’ll say, “Yes, we need him there.”
Then lastly, we take testimony of medical witnesses by Zoom, by live testimony now. So we have the applicant’s doctor who’s relating the condition testify first and then, at some time later, we have the defense doctor testify.
So we have four different hearings but our fees are all set by statute. They are 25% of benefits.
Alan Pierce: Before we go to break, what about the all-important IME? The so‑called independent medical exam, which is part of every case generally where your client shows up at the doctor retained by the insurer. Are there interpreters? Do you provide it? Is the insurer required to provide it? What happens there?
Robert Wisniewski: At these independent exams, which are often not so independent, the carrier or the self‑insured that is mandating the examination has to provide the interpreter.
We’re very careful in preparing our client ahead of time for the examination that we ask them to be cognizant of their injury. Don’t be global. Not every part of your body.
Unfortunately, in some cultures you don’t get to see a doctor very often. Culturally, when you see the doctor and you wait all day in the waiting room in Mexico, typically, you want to tell the doctor everything that bothers you. Of course that hurts in the exam because you have a global complaint. It’s been a shoulder case and now your knee hurts.
And these doctors, like the defense lawyers, are going to lead the person and say, “Oh, does that go up your left leg and across your pelvis and then the pain goes all the way down to your right leg?” And they’re going to have it only just translated adequately, but the person is going to say yes, yes, yes. I think in those cases, it’s almost like a hearing. You have to prepare them ahead of time.
Alan Pierce: Bob, I want to thank you for all of that helpful information. We’re going to take a brief break. When we come back, we will have your associate Javier Grajeda explore a little further the particular challenges and strategies presenting your client’s story to somebody who’s going to make a decision that affects your client and his family’s welfare and financial future.
Thank you for all the work you do and thank you for helping us understand.
Robert Wisniewski: Thank you for the opportunity to be here today and explain some things that might help folks in their workers’ compensation matters. Thank you, Jud. Thank you, Alan.
Jud Pierce: Where can we have folks reach you if they need to contact you?
Robert Wisniewski: We are (602) 234-3700 in Phoenix, Arizona.
Alan Pierce: All right. After a brief break, we will be right back with the second half of Workers’ Comp Matters.
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