Comunicación No Es Médicamente Necesario

Immigration has been the root of America's economic growth and with immigration comes diversity.

Diversity is experienced in race, religion, culture and language, among other criteria.

In the sixties diversity was defined by skin color and that ultimately spawned the Civil Rights Act to deal with the adverse consequence of diversity: discrimination.

Over the past 50 years population diversity has changed character. While discrimination is still a reprehensible reality, there have been some significant advances in race relations, religious tolerance and acceptance of sexual preferences.

One element that has always defined acceptance as an American, though, has been language.

While English is the preferred language of America, the 1980s introduced an unofficial second language - Spanish.

As immigrant rights continued to expand and be recognized, along with the huge economic market represented by the Hispanic population, governments and then businesses began interpretive communications.

Public and private signs in both English and Spanish are common place. Nearly all instructions for whatever good you might buy are in both languages (sometimes more). Governmental publications are published in English and Spanish and it seems most second generation Americans are bilingual.

There are still friction points though, and a recent Florida workers' compensation case about entitlement to bilingual treatment demonstrates the diversity of opinion on the subject.

In 2012 Jesus Trejo-Perez suffered a closed head injury when he fell 30 to 40 feet from a ladder. His employer, Arry's Roofing, accepted the injury as compensable and authorized treatment from several doctors, including Dr. Angelo Alves, a neurologist.

Alves recommended that Trejo-Perez undergo a neuropsychological evaluation for his memory, cognition and emotional state. Arry's then set an appointment with Dr. Arthur J. Forman. Since Forman did not speak Spanish, and Trejo-Perez's spoke only limited English, Arry's made an interpreter available for Trejo-Perez's office visits.

Trejo-Perez objected to this arrangement and filed a petition for benefits, seeking authorization for an evaluation by a Spanish-speaking neuropsychologist. He explained that he "didn't want to do it through an interpreter" because he didn't want to talk about the intimate details of his life through another person.

Alves supported his claim, testifying that Trejo-Perez "needs to have a neuropsychological evaluation done by a Spanish speaking-psychologist." He explained that having the evaluation done through an evaluator is "not the same," because the doctor "could get the wrong information."

The Judge of Compensation Claims wasn't persuaded. He said that, "Dr. Alves' insistence on a Spanish-speaking psychiatrist and neuropsychologist is based solely on the possibility that one 'could get the wrong information'" and this "does not equate to medical necessity."

Trejo-Perez appealed but a split panel of the First District Court of Appeals, which has original and exclusive appellate jurisdiction over workers' compensation appeals, agreed with the JCC.

The court found that while a Spanish speaking provider would be preferred, the evidence did not establish medical necessity.

In a concurring opinion Judge Makar addressed the challenges of meeting health care expectations within the limited resources of any health care delivery system.

"In an ideal world with unlimited resources," he said, "patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages." But since this ideal is "unattainable," Makar noted that "the trajectory of the language access movement in the United States currently has gravitated to the use of translators (for written communication) and interpreters."

Makar said there was no evidence as to whether use of a linguistically-compatible interpreter is incompatible with prevailing practice parameters in the provision of health care services generally or psychiatric services specifically. Likewise, the record had no evidence on whether the field of psychiatry has adopted − as a widely accepted practice − a requirement that patients are entitled to a primary language-speaking psychiatrist.

The dissent by Judge Bradford L. Thomas argued that no medical testimony supported the JCC's view that the Spanish-speaking psychiatric evaluation was NOT medically necessary, and that the JCC had failed to give any "reason" for rejecting Alves' opinion.

With regard to the dissent by Judge Thomas, it seems to me that he has the burden of proof backwards, and he also ignores the substantial evidence standard.

However, the majority opinion seems to take the position that Spanish is a "minority" language - and it isn't.

Demographic research shows that the Hispanic population has outgrown the white population in California and New Mexico, and probably a few other state, and projections are that these demographics will be reflected in the overall United States population by 2040.

California has about 14 million Hispanics out of an overall population of about 33 million, as measured by the Census Bureau, and 47% of New Mexico's population is Hispanic. While the white population is still the majority in Texas, that status is projected to change very soon as Hispanic population growth represents nearly 64% of all population growth since 2000.

In contrast, Florida has 4.5 million Hispanics, representing about 23% of the population. And since workers' compensation is state specific, relative to the overall demographic make up of Florida, the 1st DCA's ruling would make sense.

But as Bob Dylan sang 50 years ago, "the times, they are a changing."

I don't think that can be ignored.

To read the court's decision, click here.