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

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

The Labor Code and California regulations require utilization review to be undertaken within certain timeframes. For “prospective” or “concurrent” review  the timeframe 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 Governor 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.”

The link to Pa’u v. Department of Forestry can be found here:

https://www.dir.ca.gov/wcab/SignificantPanelDecisions2019/Puni-Pau.pdf

The link to SB 537 is here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB537

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

 

 

Julius Young

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