WORK COMP UPDATE NEWSLETTER

NO TURKEY LEFTOVERS IN DETERMINING U.R. RESPONSE TIME

In regards to utilization review, normally the claims administrator has "five (5) business days" from receipt of an RFA to issue a response (accept/deny/modify) per Regulation 9792.9. The term "business day" is not specifically defined in the post-2013 workers' compensation statutes, and was the subject of a recent court case.

In the "noteworthy panel decision" case of California Dept. of Corrections v. WCAB (Gomez) (2018) 83 CCC 530, a UR Denial issued in early December 2016 on what was thought to be the fifth day for a decision. The applicant asserted the UR Denial was late by one day if count the Friday after Thanksgiving as a "business day" as oppose to a holiday. The Court agreed, relying upon the definition of "business day" under Civil Code Section 9 which includes every day except Sunday and holidays as designated by the Government Code.

The Court acknowledged there were other statutes and even official State-issued postings stating the Friday after Thanksgiving was consider a holiday. Nevertheless, the Court held those statutes and postings did not specifically pertain to the utilization review process, and thus the day after Thanksgiving is not a holiday but to be considered a business day in the UR timeline. [COMMENT: Surprisingly, the day after Thanksgiving is not a federal holiday and is considered a holiday in less than 1/2 of the States. California Government Code Section 6700 lists 15 dates as official State holidays that should be considered whenever there is an issue of UR Denial timeliness.]

WORK COMP NEWS

ALLEGED FRAUD PRESENTED FIVE YEARS TOO LATE

A 2012 Findings and Award for a psych injury was re-opened pursuant to a petition for new and further disability which proceeded to trial in 2017. As part of the 2017 trial process, the defense wanted to introduce evidence purportedly showing the applicant's testimony in the original 2012 trial was fraudulent which would have an impact upon the 2017 trial. The WCAB held the defense evidence was excluded because with due diligence the alleged evidence was discoverable by the defense at the time of the first trial in 2012, and therefore could not be considered "newly discovered" evidence in the subsequent 2017 trial proceedings. Star Insurance v. WCAB (Sanchez) (2018) 83 CCC 548.

YOU ONLY THINK THE STATUTE PROVIDES A JULY 1, 2017 DEADLINE FOR DECLARATIONS

Labor Code Section 4903.05(c)(1) states lien claimants had until July 1, 2017 to file the required lien declarations or face lien dismissal. However, the WCAB held in Hernandez v. Henkel Loctite (2018) 83 CCC 698 that since July 1st was a Saturday which is not a "business day" under CCP Section 12 and AD Reg. 10508, that any lien declarations filed the following Monday on July 3, 2017 were considered timely.

UPCOMING EVENT:

CALIFORNIA COALITION ON WORKERS' COMPENSATION:

The 16th annual California Coalition on Workers' Compensation (CCWC) will be held July 11 - 13, 2018 at Disney's Grand Californian Hotel. The conference addresses employers' interests in California's workers' compensation system. HEW&S is a corporate sponsor of the event, with Ilene S. Sheldon (Calabasas) and Angela M. Currie (San Diego) attending. Information about the CCWC can be found at ccwcworkcomp.org.

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HEW&S NEWS

San Diego: The law firm is pleased to announce the opening of the Rancho Bernardo office in San Diego County. If you need a certified specialist in workers' compensation to handle a file in SDO, Angela M. Currie would be happy to assist you at 858-753-1984 or sdo@hmplc.com .

New Arrivals: HEW&S welcomes attorney Jesse Wales to the firm's office in Old Town Calabasas. Mr. Wales has over 13 years of workers' compensation defense experience both at in-house and outside counsel law firms. He can be reached at 818-348-8366 or jxw@hmplc.com .

HEW&S OFFICES

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Los Angeles Basin (818) 348-8366 (cls@hmplc.com)
San Diego (858) 753-1984 (sdo@hmplc.com)

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