A captain with the California Department of Forestry and Fire Protection (Cal Fire) sought authority for radiofrequency ablation to treat an accepted injury to his back. The applicant’s first request for treatment was received by Cal Fire’s utilization review company on Monday, March 12, 2018.

John W. Doud

UR denied the request for treatment on Monday, March 19, 2018. The applicant’s second request for treatment was received on Monday, April 16, 2018, and was denied on Monday, April 23, 2018.

The applicant alleged that because both UR denials were not rendered within “five working days” as mandated by Labor Code § 4610(i)(1), they were “untimely.” Therefore, the Workers' Compensation Appeals Board had jurisdiction to award him the requested medical treatment. Let’s see how he does.

Utilization review is the process an employer (or claims administrator) uses to determine if the medical treatment requested for an injured worker is medically necessary. Labor Code § 4610 establishes mandatory compliance with the UR process. If the requested medical treatment is not found to be medically necessary, it may be denied.

Generally, pursuant to Labor Code § 4610(i)(1), an employer must make a prospective or concurrent UR determination within “five working days” from the receipt of a request for authorization for medical treatment.

Employers have interpreted the “five working days” requirement in Labor Code § 4610(i)(1) to exclude weekends and holidays, but the term “working day” is not defined in Labor Code § 4610 (or elsewhere in the Labor Code). Labor Code § 4600.4(a), however, requires that UR services be available on each “normal business day.” That statute goes on to define normal business day as “a business day as defined in Section 9 of the Civil Code.”

Because of the interrelationship between Labor Code § 4610(i)(1) and Labor Code § 4600.4(a), there has been a dispute as to whether Saturdays are considered working days for purposes of UR.

In Puni Pa’u vs. Department of Forestry/Cal Fire, the WCAB issued a significant panel decision on Sept. 11, 2019, holding that, for the purposes of prospective or concurrent UR, the standard, modern definition of the phrase “working day” in Labor Code § 4610(i)(1) means a day other than Saturday, Sunday or holiday as defined in the Government Code.

In reaching its decision, the WCAB noted that not all UR decisions are created equal. In addition to ordinary UR decisions similar to the one at issue in Puni Pa’u, Labor Code § 4610(i)(3) also provides for priority UR decisions when an employee faces “an imminent and serious threat to his or her health.”

Instead of the five “working days” allowed for a decision under ordinary circumstances, these decisions under Labor Code § 4610(i)(3) must be reached no later than 72 hours after receipt of the authorization request.

The WCAB reasoned that if UR organizations were not open to accept priority requests for authorization under Labor Code § 4610(i)(3) on Saturdays, a priority request that an injured worker submitted on Saturday may not be considered to be received until Monday morning, thereby compromising the health of injured workers and defeating the purpose of the subsection.

Accordingly, the Legislature had a clear reason for requiring UR organizations to be open to receive priority requests for authorization on Saturdays, whether or not Saturday is a “working day” for purposes of normal UR requests issued under subdivision Labor Code § 4610(i)(1).

This interpretation is bolstered by the fact that the Legislature chose to use the phrase “working day” rather than simply parroting the “normal business day” language of Labor Code § 4600.4 or explicitly defining working days with reference to Civil Code § 9. The very fact that the Legislature chose a different term to govern the timeliness of UR decisions under Labor Code § 4610(i)(1) suggests an intent to differentiate the two phrases.

In reaching its decision, the WCAB was “guided by the familiar principle that the fundamental purpose of statutory interpretation is to ascertain the Legislature’s intent in order to effectuate the law’s purpose.”

The WCAB reasoned that interpretation begins “with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature’s enactment generally is the most reliable indicator of legislative intent.” 

Thus, the WCAB reasoned, “the plain meaning controls if there is no ambiguity in the statutory language.”

Here, the phrase “working day” is not defined anywhere in the Labor Code. Therefore, the WCAB in Puni Pa’u considered the “ordinary and usual meaning” of the phrase. As such, the WCAB concluded that although Saturday is a business day under Civil Code § 9, it is not a working day under Labor Code § 4610, because Labor Code § 4610 does not incorporate the definition of business day found in Civil Code § 9.

The phrase “working day” as it appears in Labor Code § 4610 does not include Saturdays based on standard modern usage, as reflected in dictionary definitions, statutory and regulatory enactments, and judicial decisions. Puni Pa’u.

Furthermore, the WCAB held that even if Saturday were a working day, the decisions in this case would still be timely based upon Code of Civil Procedure § 12a, which extends the deadline for performance of acts that fall due on a Saturday to the following Monday.

So there it is. Saturday is not considered a working day for purposes of utilization review. Great news, isn’t it?

Most of us in the industry took this for granted since the inception of the UR process, but on Oct. 8, 2019, Gov. Gavin Newsom signed SB 537 into law and, effective Jan. 1, 2020, the “working day” issue litigated in Puni Pa’u has been definitively resolved.

While Labor Code § 4610(i)(1) used the phrase “not to exceed five working days” as the time frame for timely UR certification, SB 537 has amended Labor Code § 4600.4(b) to state that a “normal business day” does not include Saturday, Sunday or specified holidays.

John W. Doud is an associate attorney at Bradford & Barthel’s Oakland office. This entry from Bradford & Barthel's blog appears with permission.