In a 2018 Court of Appeal, Fourth Appellate District decision, California Department of Corrections v. WCAB (Gomez), the subject of what calendar days are determined to be a working day for the purpose of an insurance carrier’s review of requested medical treatment was at issue. In the Gomez matter, the injured worker was arguing the Friday after Thanksgiving should be considered one day counted towards review of the treating physician’s request for care.
Labor Code Section 4610
The phrase “working day” is important here as Labor Code Section 4610 states that a claims administrator’s decision regarding requests by a physician shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from receipt of the request.
The California Code of Regulations
Interestingly, a “working day” is not defined within the Labor Code. The CA Code of Regulations only indicates that if a claims administrator disputes liability for requested treatment, such a decision shall be made in a timely fashion not to exceed five (5) business days from date of receipt of the written request for authorization.
In order to determine what a “business day” means, the Gomez court referred to the requirement that claims administrators must have utilization review (“UR”) services available from 9:00 am to 5:30pm Pacific time of each normal business day.
Turning the the CA Civil Code, the phrase “normal business day” has the same meaning as a “business day” and the Civil Code further 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.” Finally, referring to the Government Code, the Friday following Thanksgiving is not considered a holiday.
Thus, that Friday following Thanksgiving was considered to be a “normal business day” requiring UR services to be available. The court reasoned that it follows logically that this normal business day is a “working day” for the purposes of UR deadlines.
It should be noted that an argument was raised that state employees enjoy the Friday following Thanksgiving as a holiday per the Government Code. The court dismissed this argument, however, indicating that same Code section explicitly limited that holiday to state employees and not the state as a whole.
Sundays and California State-mandated Holidays Are Excluded As “Working Days”
So, it has been determined that only Sundays and CA state-mandated holidays are excluded as “working days” for the purposes of UR, does this mean UR has to be conducted with Saturday as a day counted towards the five working days? This issue is currently being litigated at the local San Diego WCAB and this office takes the position that Saturday does count towards the five working days UR has to review a request for treatment.
We anticipate substantial litigation regarding this issue and await a WCAB opinion addressing the issue. In the interim, it only appears logical a finding that Saturdays are regular business days is consistent with the reasoning in Gomez and we will continue to assert this position.
Utilization Review With Workers’ Compensation Attorneys In San Diego
If you have questions about a utilization review determination you believe might be untimely, please call our office to discuss the matter with a workers’ compensation attorney who will be able to provide the answers for these issues and more so that you can obtain the medical treatment you need and take the next step in recovering from your industrial injury.
Call the Law Office of Gerald Brody & Associates at (619) 528-9800 for a free consultation.