Labor Code Section 4610 Clarified: Saturdays Are Not Considered Working Days
A recent significant panel decision came out on September 11, 2019 confirming that Saturday is not a working day when Labor Code section 4610 is applied. Labor Code Section 4610(i)(1) reads as follows:
(1) Except for treatment requests made pursuant to the formulary, 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 a request for authorization for medical treatment and supporting information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician. Prospective decisions regarding requests for treatment covered by the formulary shall be made no more than five working days from the date of receipt of the medical treatment request. The request for authorization and supporting documentation may be submitted electronically under rules adopted by the administrative director.
In Puni Pa’u v. Department of Forestry/Cal Fire the applicant sought radio frequency ablation, a type of medical treatment, for an accepted injury to his back while employed by Cal Fire. The first Request for Authorization was received by EK Health on March 19, 2018, a Monday. A second request for the same treatment was issued and the request was received on April 26, 2018, a Monday. This request was denied on April 23, 2018, also a Monday.
Applicant filed a Declaration of Readiness to Proceed asserting that both of the Utilization Review Denials were untimely. The Defendant objected and the matter was set for trial on May 17, 2018. The issue at trial was whether or not Defendant complied with the requirement to render a decision within five working days pursuant to Labor Code section 4610. The WCJ held that the Utilization Review Denials were timely because Saturdays and Sundays are not considered working days under the meaning of Labor Code section 4610. The Applicant filed a timely Petition for Reconsideration.
The Workers’ Compensation Appeals Board reasoned their decision by first addressing the plain language of the statues involved. They first point out that “working day” is not defined in Labor Code section 4610; however, Labor Code section 4600.4(a) requires that Utilization Review services are available on “each normal business day.” The statute defines normal business day as “a business day as defined in Section 9 of the Civil Code.” Civil code section 9 reads as follows:
All other days than those mentioned in Section 7 are business days for all purposes; provided, that as to any act appointed by law or contract, or in any other way, to be performed by, at, or through any bank organized under the laws of or doing business in this state, any optional bank holiday as defined in Section 7.1 is not a business day; and provided, that any act appointed by law or contract, or in any other way, to be performed on any day which is an optional bank holiday as defined in Section 7.1, by, at, or through any bank or branch or office thereof, whether acting in its own behalf or in any other capacity whatsoever, may be performed on that optional bank holiday if the bank or branch or office by, at, or through which the act is to be performed is open for the transaction of business on that optional bank holiday, or, at the option of the person obligated to perform the act, it may be performed on the next succeeding business day.
Civil Code section 7, states: “Holidays within the meaning of this code are every Sunday and such other days as are specified or provided for as holidays in the Government Code of the State of California.” Civil Code section 7.1 includes “Every Saturday” in the definition of “optional bank holidays.” (Civ. Code, § 7.1(b).)
Government Code section 6700 defines “Every Sunday” as a holiday, but does not include Saturdays in its definition. Further, Government Code section 6702 provides that “Saturday from noon to midnight is a holiday as regards to the transaction of business in the public offices of the state and political division where laws, ordinances, or charters provide that public offices shall be closed on holidays.”
They further go on to cite Code of Civil Procedure section 12a, which states: “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, ‘holiday’ means all day on Saturday . . . .”
Although under Civil Code section 9, Saturday is considered a business day, it is not considered a working day under Labor Code section 4610. The Workers’ Compensation Appeals Board considered the plan language of Labor Code section 4610(i)(1) and differentiated “workday” as provided by the Labor Code and “business day” as provided by the Civil Code. Although “workday” is not defined in any way in the Labor Code, they interpreted “workday” to fall within a definition as provided by American Heritage Dictionary, 5th Edition as, “a day upon which work is usually done.” They indicated that the Legislature intended workday to mean a day in which people normally work as it would make little sense to mandate that Utilization Review decision be completed within five days of actual work.
They then turned upon the issues of whether or not the Legislature viewed Saturday as a day upon which work is ordinarily preformed. After reviewing case law and other sources, the Workers’ Compensation Appeals Board determined that the “modern definition of the phrase “working day” is a day other than a Saturday, a Sunday, or a state holiday as defined in the Government Code.
In conclusion, remember 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.
Of note, the Puni-Pau case further goes on to discuss whether or not the Friday after Thanksgiving is a working day. In prior holdings, it has been determined that the Friday after Thanksgiving is a working day, because it is not listed as a holiday in the Government Code.