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SATURDAY NIGHT’S ALRIGHT FOR FIGHTING (BUT NOT FOR UTILIZATION REVIEW)

Utilization Review has been with us for more than 15 years now, showing up first in 2003 when Governor Gray Davis signed SB 228. Thereafter, Governor Schwarzenegger expanded its role in 2004 with the approval of SB 899. Most recently, SB 863 added Independent Medical Review into the mix.

After all these years, you would think that there could not be any aspect of the Utilization Review process left to litigate. This being California Workers’ Compensation, you would be wrong!

The latest area of contention started with the 2014 en banc decision in Dubon vs. World Restoration (2014) 79 Cal. Comp. Cases 313, in which the Appeals Board determined that the Independent Medical Review process was designed solely to resolve disputes related to the medical necessity of treatment requests following a valid Utilization Review determination. However, if the Utilization Review decision was invalid, a Workers’ Compensation Judge was allowed to decide whether the requested treatment was medically necessary and should be provided. Among the grounds on which a Utilization Review could be invalidated was the timeliness of the decision.

Labor Code §4610(i)(1) requires that the employer make a Utilization Review determination within “five working days from the receipt of a request for authorization for medical treatment…”. The time within which to make a decision is extended to 14 calendar days if additional information is needed. However, the additional information must still be requested within five “working days”.

Despite what is a seemingly obvious choice of words (although nothing in workers’ compensation is obvious) the Workers’ Compensation Appeals Board has been called upon to clarify what constitutes a “working day.” Specifically, applicant’s attorneys began raising the issue of whether Saturday is a “working day” for purposes of making a Utilization Review decision.

The seed of this argument was planted by the 2018 decision in Department of Corrections vs. WCAB (2018) 83 Cal. Comp. Cases 530. While that case did not specifically decide whether Saturday is a working day, it did hold that the Friday after Thanksgiving was a working day. In denying the defendant’s Petition for Writ of Review, the 4th District Court of Appeal agreed with the WCAB that “working day” and “business day” have the same meaning and noted that Labor Code §4600.4(b) states “for purposes of this section ‘normal business day’ means a business day as defined in Section 9 of the Civil Code”. The Civil Code defines “business day” as “every day other than every Sunday and such other days as are specified or provided for as holidays in the Government Code of the State of California”.

The defendant argued that holidays observed by the WCAB should be excluded as “business days”. However, the court rejected that argument, noting that “holidays observed by the WCAB and California courts are not holidays for the state as a whole. There is no indication that the Labor Code intended to exclude these holidays from its definition of ‘working days’ for purposes of the Utilization Review process”.

Having won that argument, applicant’s attorneys decided to expand that holding to the weekend. If a WCAB “holiday” could also be a “working day”, why not Saturday?

In Puni Pa’u vs. Department of Forestry/Cal Fire (decided September 11, 2019) 2019 Cal. Wrk. Comp. P.D. Lexis 86, the applicant sustained an accepted injury to his back. The treating physician submitted a Request for Authorization for radiofrequency ablation. The claim administrator received the Request for Authorization on Monday, March 12, 2018. It issued a Utilization Review Determination denying the request on Monday, March 19, 2018.

Not to be deterred, the treating physician submitted a second Request for Authorization for radiofrequency ablation to the claim administrator on Monday, April 16, 2018. The treatment was again denied by Utilization Review on Monday, April 23, 2018.

Seizing his opportunity, applicant’s attorney filed a Declaration of Readiness to Proceed, alleging that both Utilization Review decisions were untimely and, therefore, under Dubon, the Workers’ Compensation Judge had jurisdiction to Award the requested treatment. The parties framed the issue for trial as whether defendant had made its Utilization Review decision within five “working days” as required by Labor Code §4610.

Following the hearing and briefing of the parties, the Workers’ Compensation Judge issued a Findings and Order in which he determined that the Utilization Review denials were timely. Specifically, the Workers’ Compensation Judge concluded that Saturday is not a working day for purposes of Utilization Review because Saturday is listed as an optional bank holiday in Civil Code §7.1, which the Workers’ Compensation Judge concluded is in turn incorporated into the definition of business day provided in Civil Code § 9.

Applicant’s attorney filed a Petition for Reconsideration which was granted in order to consider the factual and legal issues in the case. However, after reviewing the briefing, the Commissioners affirmed the Workers’ Compensation Judge’s Finding that the Utilization Review determinations were timely.

The Commissioners noted that the phrase “working day” is not defined anywhere in the Labor Code. Therefore, they looked to the ordinary and usual meaning of the phrase. The dictionary definition is “a day upon which work is usually done.” Based on this interpretation, they equated “working day” with “business day” and noted that the legislature has defined “business day” in various code sections. For example, Insurance Code §1215 states that a “business day is any day other than Saturday, Sunday, and any other day that is specified or provided for as a holiday in the Government Code.” In addition, Code of Civil Procedure 12a states that “For purposes of this section, ‘holiday’ means all day Saturday…”.

Analogizing to these other code sections, the Commissioners concluded that, based on modern usage as reflected in dictionary definitions, statutory and regulatory enactments, and judicial decisions, “working day” as it appears in Labor Code §4610 does not include Saturday.

So, rest easy and enjoy your weekend, knowing that you do not have to make Utilization Review decisions on Saturday!

By Edward Hummer, Esq, Associate Attorney, Santa Rosa, November 2019.