Everybody’s Working for the Weekend, But Not on a Saturday According to Labor Code

In its recent significant panel decision, Puni Pa’u v. Department of Forestry/Cal Fire (Filed 09/11/2019), the Workers’ Compensation Appeals Board (WCAB) concluded that Saturday is not a working day when applying Labor Code section 4610.

In Pa’u, the Utilization Review (UR) decisions at issue sought authority for radio frequency ablation to treat the accepted injury to applicant’s back. The first request for treatment was received by Cal Fire’s UR company on Monday, March 12, 2018. UR denied the request for treatment on Monday, March 19, 2018. Applicant’s second request for the same treatment was Monday, April 16, 2018 and it was denied on Monday, April 23, 2018. The matter was set for hearing at applicant’s request, alleging that both UR denials were late and, therefore, the WCAB had jurisdiction to award the requested treatment. The Workers’ Compensation Judge (WCJ) opined that Saturdays and Sundays are not to be counted as working days when applying Labor Code section 4610. The WCJ specified that Saturday is not a working day for purposes of UR because Civil Code section 7.1, which is incorporated into the definition of business day provided in Civil Code section 9, lists Saturday as an optional bank holiday. The Board granted applicant’s Petition for Reconsideration to consider the issue.

Labor Code section 4610 provides timelines for UR to determine whether to approve, modify, delay, or deny requests for medical treatment in workers’ compensation cases. For prospective or concurrent decisions that are non-emergencies, decisions “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 the receipt of the request for authorization[.]” While the Labor Code does not define working day, section 4600.4 requires that UR services be available on “each normal business day” referencing the definition in Civil Code Section 9. Civil Code section 9 references Section 7 to define business days as bank days and Section 7.1 to define any optional bank holiday as not a business day. Civil Code section 7 states that holidays are “every Sunday and such other days as are specified or provided for as holidays…” and Section 7.1 provides that Saturdays are optional bank holidays.

The WCAB disagreed with the WCJ’s interpretation that Saturdays are not business days under Civil Code section 9, holding that the analysis is inapposite because UR companies are not banks. However, the WCAB acknowledged that linking “working day” under Labor Code section 4610 to Civil Code section 9’s “business day” would have resulted in Saturdays being working days in an earlier case on the issue, in Cal Dept. of Corr. & Rehab. Parole & Cmty. Servs. v. Workers’ Comp. Appeals Bd. (Gomez) (2018). The issue in Gomez was whether the Friday after Thanksgiving was a working day, but in this case the parties assumed that Saturday was not a working day.

Additionally, the WCAB looked to the Legislature’s definitions of “business day” in the Insurance and Financial codes which specify that Saturdays and Sundays are not business days. Recent judicial decisions interpreting the Penal Code’s use of “working days” treat Saturday as a non-working day. Additionally, the regulatory definitions of “working day” exclude Saturdays and Sundays. This analysis led the WCAB to conclude that the modern usage of “working day” in Labor Code 4610 does not include Saturdays.

One purpose served by Labor Code section 4610 is to provide for peer review as the sole authority for determining the medical necessity of requests for medical treatment without the delay associated with obtaining a med-legal report. Failure to comply with the code’s strict timelines returns jurisdiction to the WCAB to determine the necessity of the treatment. The conclusion by the WCAB to exclude Saturday in counting the days permitted for UR review likely will not surprise most members of the workers’ compensation community but it does reflect a continuing struggle within the system to ensure proper care while limiting abuse.

This document is intended to provide you with information about workers’ compensation related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.

September 26, 2019