WCDefenseCA

I know that not everyone is a fan of Monday mornings, my dear readers, so your humble blogger is happy to take the edge off with a relatively positive result from the WCAB.

One of the great gains made by the defense community as part of SB-863 was the implementation of IMR.  With review of UR determinations taken away from the WC system, and vested instead with Independent Medical Review, we saw UR determinations upheld with significant regularity.  Additionally, the costs involved have shifted to an administrative fee for a review, rather than the previous litigation costs of expedited hearings and appeals.

But, of course, the WCAB can still overrule a UR denial of requested medical treatment when the UR determination is not timely.  This explains why, in the weeks following the WCAB’s en banc determination in the case of Dubon, calendar sales skyrocketed all across California.

If your UR report is timely and otherwise valid, the odds are very high that it will be upheld by IMR.  If your UR report is NOT timely, your defense attorney has to take time out of his or her precious QME panel validity litigation to go to an expedited on whether the UR decision should stand on its merits.

So what’s the problem?  Well, much like the devil, the problem lies in the details.  California Labor Code section 4610 provides that “prospective or concurrent decisions shall be made in a timely fashion … not to exceed five working days from the receipt of a request for authorization for medical treatment…”  So, dear readers, pray tell… what is a working day?  Are Saturdays and Sundays working days?  Or, perhaps working days are any days except state Holidays? Shall we cite Genesis 2:2 in our pleadings?

That was the issue in the case of Puni Pa’u v. Department of Forestry.  Therein, applicant sought reconsideration of a WCJ’s finding that defendant’s UR determination to deny an RFA was timely.  Applicant contended that Saturday was a working day as contemplated by Labor Code section 4610.

The WCAB panel held 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.”

Furthermore, the WCAB held that Code of Civil Procedure section 12a provides, that if the last day to perform any act falls on a Saturday or Sunday, that deadline is extended to the following Monday.

So… great news, right?  Although not binding authority, this certainly closes out another line of argument to snatch a UR determination out of the safety of IMR and into costly litigation.

I know at least 2 of my 12 readers are big Elton John fans, so let me end this blog post by reassuring you, once again, that since Saturdays don’t count towards the UR 5-day deadline…