Facundo-Guerrero v WCAB
The injured worker in this case asserted that Labor Code section 4604.5, the 24-visit chiropractic limitation, is unconstitutional because it is an arbitrary and capricious restriction on the constitutional mandate for the "full provision" of all reasonable and necessary medical care. The applicant argued that the constitutional provision precludes any statutory restriction on treatment or the number of visits for physical medicine. Neither the WCALJ nor the WCAB had the authority to rule on this issue, so the District Court of Appeal will make the initial determination.
District Court of Appeal: Guerrero was heard yesterday before the First District Court of Appeal, Division Four. The panel included Justice Reardon, Presiding Justice Ruvolo, and Justice Sepulveda. In the audience were 3 Commissioners from the WCAB, members of CAAA, and other interested attorneys. Dan Smith, applicant’s attorney, argued first and reiterated the policy arguments from his brief, simply asserting that the 24-visit chiropractic cap was unfair, arbitrary and capricious, and an improper restriction on the constitutional mandate for the "full provision" of all reasonable and necessary medical care. Justice Ruvolo noted that these were policy arguments that only the Legislature could remedy and asked Smith to address the constitutional issues before the court. Smith argued that medical care was a benefit that required a greater level of scrutiny and had always been treated as an unassailable part of the "workers’ compensation bargain" by the Legislature. The court did not accept that a higher level of judicial scrutiny should be applied. The applicant’s attorney essentially ignored the question of whether the Legislature had the authority to limit chiropractic care or whether the rational basis test applied in this case. The research supporting the rational basis for the treatment limitation, provided in the amicus briefs, was similarly ignored.
The chiropractors hired former District Court of Appeal Justice Armand Arabian to participate in the argument and he was given 10 minutes. Arabian’s presentation was mostly rhetoric, which failed to address any of the issues in a strong or direct manner.
Argonaut’s attorney, Brian Egan, began with the key issue — the plenary authority of the Legislature to craft a complete workers’ compensation system. He argued that the State Constitution gave the Legislature unfettered authority to limit specific modalities of medical care, so long as the limitation was rationally related to underlying purpose of the system.
Justice Ruvolo asked Egan whether the vesting of discretion in the employer without a review process was not an inappropriate delegation of legislative authority. Egan responded that the injured worker advocates had offered no evidence that the section resulted in a "hard cap." He pointed to the wealth of data, analyses, and the interstate comparison in the CWCI amicus brief that supported the limitation created by the Legislature. Egan articulated the rational basis for restrictions on medical care, noting that the applicant’s attorney had essentially conceded that the Legislature can craft any number of restrictions on medical, including utilization review, evidence-based medicine guidelines, and limiting certain modalities of care.
In questions to the applicant’s attorney, Justice Ruvolo used the analogy to LC section 3208.3, which eliminates all claims for benefits for psychiatric injury unless the injured worker had been on the job for at least 6 months. Justice Sepulveda also asked why the inclusion of employer discretion would make this limiting of treatment any different. Smith responded that merely revoking the employer’s discretion would not erase the constitutional violation, but he did not provide any reasonable differentiation and did not answer the question well. Thereafter, Justice Ruvolo characterized the "employer’s discretion" as a waiver of the statutory ban, implying that such a waiver would be well within the authority of the Legislature to allow.
Conclusion: The court’s questioning of the attorneys seemed to indicate that unless they were to provide a strong rationale to justify altering the statutory provisions established by the Legislature, the court would leave these caps in place. The applicant’s attorneys did not offer anything beyond the rhetoric from the briefing, and the court did not respond positively to their position. I would expect to see an opinion within the next 30 days.
MMc/by