From the Desk Of: Thomas L. Bolinger, Esq.
Managing Attorney, San Diego
Certified Specialist, Workers' Compensation Law, The State Bar of California, Board of Legal Specialization
Labor Code §4610 provides the ground rules for the Utilization Review (UR) process. This section first appeared in the Labor Code in 2003.
Labor Code §4610(i)(1) deals with the timeframe for issuing prospective or concurrent decisions to certify or deny recommended medical treatment. The decision shall be made in a timely fashion as appropriate for the nature of the employee's condition, not to exceed five (5) working days from the receipt of a Request for Authorization for Medical Treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.
Since 2003, the term “working days" was interpreted as Monday through Friday, with Saturday and Sunday excluded. Thus, if a Request for Authorization for Medical Treatment (RFA) was received on a Thursday, the defendant was required to certify or deny the recommended treatment on or before the end of the following Thursday (five days from receipt, excluding Saturday and Sunday).
In March of this year, the Appeals Board published the case of California Department of Corrections & Rehabilitation Parole & Community Services, State Compensation Insurance Fund vs. Workers’ Compensation Appeals Board (Gomez) (2018) 83 Cal. Comp. Cases 530, 2018 Cal. Wrk. Comp. P.D. Lexis 15.
Gomez was a writ denied case in which it was held that the Friday after Thanksgiving Day is not excluded from being treated as a “normal business day” (working day). In short, the Friday after Thanksgiving is considered a working day for the purpose of calculating the five-day period under Labor Code §4610(i)(1).
While the holding in the Gomez case is limited to the Friday after Thanksgiving being classified as a business day (working day), the rationale for that holding is based upon an analysis that results in Saturday also being classified as a business day (working day). In support of this analysis, the WCJ and the WCAB refer to Labor Code §4610(g)(1) (now Labor Code §4610(i)(1)), Labor Code §4600.4, Civil Code §7 and §9, and Government Code §6700.
In the process of referring to the various code sections, the court uses the terms working days (in Labor Code §4610(i)(1)), and business days (in Labor Code §4600.4, Civil Code §7 and §9 and Government Code §6700) interchangeably. The court does this without any analysis, justification October 1, 2018 2 of 2 or rationale. This reasoning, when applied to the Gomez case, results in one day out of the year, the Friday after Thanksgiving, being classified as a business day. This is the holding in the Gomez case. However, that same reasoning could potentially result in 52 additional calendar days per year being newly classified as business days.
It should be noted that there is a previously issued panel decision that also addresses this issue. The case is Castrillo vs. Catholic Healthcare West DBA Marion Medical Center (2012) Cal. Wrk. Comp. P.D. Lexis 454. In that case, the term business day (working day) was defined by using Labor Code §4600.4, Civil Code §9 and §7, as well as Civil Code §7.1. Referencing the sections in their entirety, it was concluded that Saturday is not considered a business day (working day) for the purpose of Labor Code §4610.
Civil Code §9, §7 and §7.1 refer to business days and holidays in the banking industry. Section 7.1 specifically indicates that Saturday is a bank holiday.
Unfortunately, the court in Gomez made no reference to the Castrillo case and ignored the clear and complete language in Civil Code §9, §7 and §7.1. (Presumably, the court in Gomez did not apply the Civil Code Sections in their entirety based upon the rationale that UR organizations are not banks.)
Subsequent to the publication of the Gomez case, some applicant’s attorneys began to file Declarations of Readiness in cases involving UR denials in which a Saturday was excluded from the five-day calculation. Based upon the Gomez case, it is being argued that these UR denials were untimely.
One such case recently went to trial in San Diego. This writer represented the defendant employer. The WCJ in that case was the same trial judge in the Gomez case. As anticipated, the WCJ found that Saturday is a business day (working day) for the purpose of calculating the fiveday period under Labor Code §4610(i)(1). The UR denial in that case was deemed untimely. This writer represented the defendant employer. A Petition for Reconsideration was filed. On 8/21/18, the Appeals Board granted reconsideration. Stay tuned.
In the interim, it would be prudent for organizations making UR determinations to consider Saturday as a working day for the purpose of calculating the five-day period under Labor Code §4610(i)(1). This will prevent applicant’s attorneys from claiming that the UR determination was untimely, per the Gomez case.