In Russia, they call it “Dein.” In Israel they call it “Yom.” In Spain (and most of South America), they call it “Dia.” And, in California’s workers’ compensation system, we call it confusing.
What is a day? When does it start and when does it stop?
In the recently writ denied case of Green v. Elle Placement, an RFA was received by facsimile at 6:18 p.m. on Friday, April 17, 2015, and a UR denial issued on Monday, April 27, 2015, at 6:18 p.m. Treating the RFA as received on Monday, April 20, the following Monday, April 27, 2015, would have been the 5th working day. Was a 6:18 p.m. facsimile late? Or was it still part of that 5th working day?
Well, the matter proceeded to trial (this is for an artificial disc replacement arthroplasty and two days inpatient stay, so it is probably worth the litigation dollars), and the WCJ found that if a business day ends for an RFA at 4:30 p.m., then the business day likewise ends for a UR denial at 5:30 p.m., rendering the UR decision invalid as untimely.
The WCJ cited Labor Code section 4600.4(a), which states that “a workers’ compensation insurer … shall ensure the availability of [UR] services from 9 a.m. to 5:30 p.m.”
What was defendant’s response? The decision was made in on the 5th day, prior to the 5:30 p.m. cut-off, as required by Labor Code section 4610(g)(1) (“prospective or concurrent 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 information reasonably necessary to make the determination…”) but the communication of that decision affords an additional 24 hours.
After ruling that the UR decision was untimely, defendant sought reconsideration. The WCAB panel granted recon, noting that the 5-day limit of 4610(g)(1) applies once the reviewer has all the necessary information, and, in this case, “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.” Furthermore, the panel majority found that there is no evidence indicating the determination was untimely and that the likely scenario is that the determination was made during regular business hours, and only communicated after 5:30 p.m.
The dissent argued, instead, that there is no support for the contention that the act of communication adds 24 hours to the 5-day limit to make a determination, and would have denied reconsideration.
Granted, dear readers, this is a split panel decision, writ denied though it is. It has no binding precedent and, at best, indicates the inclination of each of the respect commissioners in interpreter the relevant codes and statutes. There’s no binding precedent here.
But, that being said, what is the guidance from this opinion as to the following questions:
Does a working day or business day end at 5:30 p.m.? Can this time limit be applied to the day calculations? For example, Labor Code section 4062.2 allows a party to request a panel on the “first working day that is at least 10 days after the date of mailing…” a request for evaluation or objection. But the California Code of Regulations section 30(b) treats all panel requests made after 5:00 p.m. as being received on the next day. It would appear that this panel decision would hold that the “first working day” would effectively start at 5:31 p.m. on the previous day, but the regulation would instead place the cut-off at 5:00 p.m. Panel dispute trials have been held for less.
Here is another thought – who bears the burden here? The majority noted that “there is no evidence of when the UR reviewer received the information reasonably necessary to make the determination.” Does that mean that the burden is on the applicant to prove when all necessary information was received by the UR physician? Short of the PTP faxing all relevant reports with the RFA directly to UR, how would this be established?
Also, the majority rejected the inference that the determination was made at the same time as the communication (after 5:30 p.m.) Who bears the burden in documenting when the determination was made? Is the determination automatically the date of the report? But what if the report was written 25 hours prior to being communicated?
This is a great decision for the defense, and hopefully it will be adopted by more commissioners as these cases come up again and again. However, your humble blogger submits that the defense community would be better off in avoiding the exposure from the get-go: given the state of telecommunication, it isn’t that difficult to fax a UR report prior to 5:30 p.m.