Young: Counting the Days

Friday, October 4, 2019 | 0

Many people are counting the days. To the next election. To the December holidays. To vacations. To retirement.

Julius Young

But in California workers’ comp we often count days for other things. For things like qualified medical evaluation requests. And for UR validity.

The Labor Code and California regulations require utilization review to be undertaken within certain time frames. For “prospective” or “concurrent” review, the time frame from a request under Labor Code 4610(i) (1) “shall be made in a timely fashion that is appropriate to the nature of the employee’s condition, not to exceed five working days from the receipt of a request for authorization.”

Under Administrative Director Rule 9792.9.1, such decisions are to be made within “five (5) business days from the date of receipt.”

For years there has been a great deal of misunderstanding about “working days” and “business days.” How do Saturdays and the days after holidays fit into this scheme?

Whether or not a UR determination was valid often hinged on a count of days, and parties argued over whether certain days should be counted.

Although not binding on other parties (since it is not an en banc decision), we have an answer in the recent significant panel decision of Puni Pa’u v. Department of Forestry (Commissioners Zalewski, Sweeney and Lowe participating).

The bottom line is that the Pa’u panel holds that: 

“... we conclude that although Saturday is a business day under Civil Code section 9, it is not a working day under Labor Code section 4610, because Labor Code section 4610 does not incorporate the definition of business day found in Civil Code section 9. The phrase 'working day' as it appears in Labor Code section 4610 does not include Saturdays based upon standard modern usage, as reflected in dictionary definitions, statutory and regulatory enactments, and judicial decisions. Moreover, even if Saturday were a working day, the UR decisions in this case would still be timely based upon Code of Civil Procedure section 12a.”

This result would essentially be enshrined into law if Gov. Gavin Newsom signs SB 537. According to the legislative counsel’s digest to SB 537, “This bill would revise the definition of a normal business day for these purposes to specifically exclude every Saturday, Sunday and specified other holidays.”

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.