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Are Saturdays Business Days for the Purposes of Utilization Review?

Posted by Sure S. Log on May 23, 2019 2:59:39 PM
Sure S. Log

Since 2004, an employer is required to conduct a utilization review (UR) in order to dispute a request for medical treatment. Under the current law, if an injured worker challenges a UR determination to deny or modify a request for treatment, the worker must request an independent medical review (IMR) from an organization contracted by the administrative director. If, however, the UR determination is untimely, it is not subject to an IMR. Instead, the determination of medical necessity may be made by the WCAB. (Dubon v. World Restoration, Inc. (2014) 79 CCC 1298 (WCAB en banc).) So, it's crucial for employers to conduct their URs in a timely manner.

Labor Code 4610(i)(1) states that an employer must make a UR determination with "five working days from the receipt of a request for authorization for medical treatment." It extends this time to 14 calendar days if additional information is required. The employer still must request the additional information from the treating physician within five business days of receipt of the request for authorization. (California Code of Regulations Title 8, 9792.9.1(f)(2)(A).)

Since the inception of the UR process, employers generally have understood the "five working day" limit in § 4610(i)(1) to exclude weekends and holidays. Recently, however, injured workers (or, more specifically, their attorneys) have started arguing that Saturdays constitute business days for the purposes of UR.

To support their argument, injured workers cite the case of California Department of Corrections and Rehabilitation Parole and Community Services v. WCAB (Gomez) (2018) 83 CCC 530 (writ denied). That case did not hold that Saturdays were working days. It held only that the Friday after Thanksgiving was a working day. The WCAB, however, also concluded that "working day" and "business day" have the same meaning, and the provisions of LC 4600.4 control the determination of whether a day is a normal business day for the purposes of UR decisions.

The 4th District Court of Appeal did not grant the defendant's petition for writ of review. But, in denying review, it agreed that § 4600.4 was applicable to UR determinations. LC 4600.4(b) states, "For the purposes of this section 'normal business day' means a business day as defined in Section 9 of the Civil Code." The court stated, "The Civil Code, in turn, defines a '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 court rejected the defendant's argument that holidays observed by the WCAB were excluded, stating, "The holidays observed by the WCAB and California courts are not holidays for the state as a whole. There is no indication the Labor Code intended to exclude these holidays from its definition of 'working days' for the purposes of the UR process."

These statements have fueled the argument that Saturdays are business days for the purposes of UR. But again, Gomez did not specifically address the issue. Because the 4th District Court of Appeal denied review, Gomez is not binding, and several arguments can be made against counting Saturdays as business days.

One: Although Civil Code 9 states, "All other days than those mentioned in Section 7 are business days for all purposes," it adds that "as to any act appointed by law or contract, or in any other way, to be performed by, at, or through any bank organized under the laws of or doing business in this state, any optional bank holiday as defined in Section 7.1 is not a business day" (emphasis added). Civil Code 7.1 states that optional bank holidays include "every Saturday."

If Civil Code 7.1 applies to UR determinations, Saturdays would not be business days for the purposes of UR. If it does not, Saturdays could be considered business days. But if the Legislature intended to define "working days" by only Civil Code 7, it could have referred specifically to that section. Instead, it refers to § 9, which also discusses § 7.1. So, arguably optional bank holidays, including Saturdays, are not business days.

Two: CCR 10508 states, "If the last day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the offices of the Workers' Compensation Appeals Board are closed, the act or response may be performed or exercised upon the next business day." The regulation contemplates that Saturdays are not considered business days in the workers' compensation system.

Three: The DIR gives clear instructions to claims administrators on its website that Saturdays are not business days. The website states: "Saturday and Sunday are not counted as business days, and therefore receipt of requests on a weekend or a holiday does not count as a receipt, until the next business day." It also states, "When counting business days, the Saturday, Sunday or holiday is not counted as a business day, so continue the count on the next business day. Whenever the last day in counting a calendar day deadline falls on a Saturday, Sunday or holiday, the count moves to the next day."[1]

Finally, the WCAB repeatedly has stated that business days do not include Saturdays or Sundays. (See for example, Binger v. Integrated Office Systems, 2009 Cal. Wrk. Comp. P.D. LEXIS 406; Castrillo v. Catholic Health Care West dba Marian Medical Center,2012 Cal. Wrk. Comp. P.D. LEXIS 454; Shanley v. Henry Mayo Newhall Memorial Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 660; Tolliver v. County of Fresno, 2015 Cal. Wrk. Comp. P.D. LEXIS 645; Sephers v. Stanislaus County Fairgrounds, 2017 Cal. Wrk. Comp. P.D. LEXIS 297.) None of the cases, however, specifically considered the issue or application of LC 4600.4.

So, although employers have strong arguments against it, the issue is open as to whether Saturdays are working days for the purposes of UR. If the WCAB determines that Saturdays are working days, it would have significant consequences in the workers' compensation system. Potentially thousands of UR determinations could be deemed untimely. Substantial litigation on this issue continues, and it's reasonable to expect the WCAB to issue a definitive opinion.

Accordingly, if an employer seeks review of this issue before the WCAB, it would be prudent to ask that if the appeals board were to find that Saturday is a working day, the WCAB should apply its decision only prospectively. The Supreme Court has explained, "Although as a general rule judicial decisions are to be given retroactive effect [citation], there is a recognized exception when a judicial decision changes a settled rule on which the parties below have relied. Considerations of fairness and public policy may require that a decision be given only prospective application." (Claxton v. Waters (2004) 34 Cal. 4th 367, 378, citations omitted.)

Given that the DIR website and past decisions from the WCAB have instructed that Saturdays are not working days for the purposes of UR, it would be fundamentally unfair to invalidate prior UR decisions. So, employers should assert that any determination that Saturday is a working day should apply only prospectively.

Topics: Case Law Updates

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