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  June 9, 2008
  Source:  WorkInjury.com
  ----------------------------

CA/1:   First District Publishes Opinion on Constitutionality of 24-Visit Chiro Cap

As we reported earlier this year, the First District Court of Appeal had accepted for review a San Francisco case regarding the constitutionality of the 24-visit cap on chiropractic treatment in Labor Code section 4604.5(d)(1).

The case -- Facundo-Guerrero v. WCAB -- has generated a slew of letters from chiropractors, as well as amicus curie briefs from the usual suspects.

In the underlying case, the WCAB had ruled that the cap was indeed constitutional. The applicant had received 76 chiropractic treatments following an industrial injury. Following the WCAB's ruling, he filed a writ of review, alleging:

• That the cap violates the California Constitution's mandate to the state Legislature that it implement a "complete system of workers' compensation," including "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury." (Cal. Const., art. XIV, § 4 (Section 4).)

• That it is an unconstitutional delegation of legislative power that denies the applicant due process to vest sole authority in employers to approve benefits for more than 24 treatments without affording workers a right of judicial review of that decision.

• That the limitation on the number of chiropractic treatments in section 4604.5(d) violates the applicant's right to equal protection under the law, as compared to (1) the class of injured workers who undergo modalities of treatment not statutorily limited, or to (2) the class of workers injured prior to January 1, 2004, the effective date of the statute, who were not limited to 24 chiropractic treatments.

In its long-awaited certified-for-publication decision, the appellate court dismissed ALL of these arguments, ruling the statute constitutional.

"Without question there is a rational basis for the enactment of section 4604.5(d)... 'Quite evidently, section 4604.5(d), which was part of SB 899, was enacted as one component of a major reform of the state's workers' compensation system, a system perceived to be in dire financial straits at the time. By limiting benefits, the reforms had the clear purpose of alleviating "a perceived crisis in skyrocketing workers' compensation costs. [Citations.]' (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1329; Tort Trial & Insurance Practice Law Journal, Recent Developments in Insurance Regulation (Winter 2005) vol. 40, pp. 567, 582.)

"The Legislature's decision to reduce the unlimited availability of chiropractic treatments to workers' compensation claimants is rationally related to that effort. Like our refusal to second-guess the Legislature's wisdom in enacting the 2004 amendments in considering petitioner's other constitutional arguments, we must similarly refrain from doing so under the guise of an equal protection challenge... '[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.' (FCC v. Beach Communications, Inc., supra, 508 U.S. at p. 313.) "

To read the full published opinion,

PLEASE CLICK HERE.