Facundo-Guerrero v. Workers' Compensation Appeals Board

Labor Code^[1] section 4604.5, subdivision (d) (section 4604.5(d)) was enacted in 2003 as Senate Bill No. 228 (2003-2004 Reg. Sess.) (Stats. 2003, ch. 639, § 27) (Senate Bill 228), and provided that, unless approved by an injured employee’s employer, benefits for chiropractic treatments and physical therapy sessions were limited to no more than 24 visits per industrial injury, if the injury occurred after January 1, 2004. The statute was amended the following year as part of Senate Bill No. 899 (2003-2004 Reg. Sess.) (Stats. 2004, ch. 34, § 25) (Senate Bill 899), a comprehensive reform of this state’s workers’ compensation system. As pertinent to section 4604.5(d), Senate Bill 899 left in place the cap on chiropractic and physical therapy visits, but added a limit of 24 occupational therapy visits per industrial injury as well.

Petitioner Jose Facundo-Guerrero (petitioner) received 76 chiropractic treatments following an industrial injury he sustained while working for respondent Nurserymen’s Exchange (Nurserymen’s), whose insurer was respondent Argonaut Insurance Company. He filed a writ of review with this court after a Workers’ Compensation Appeals Board (WCAB) decision determined that he was entitled to benefits covering only 24 chiropractic treatments, as specified by section 4604.5(d).

Petitioner contends that section 4604.5(d) 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 (article XIV, section 4).) Similarly, he contends that vesting sole authority in employers to approve benefits for more than 24 treatments without affording workers a right of judicial review of that decision is an unconstitutional delegation of legislative power that denies him due process.

Lastly, he also argues that the limitation on the number of chiropractic treatments in section 4604.5(d) violates his 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 (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.

n. FACTUAL AND PROCEDURAL BACKGROUND

On December 28, 2006, petitioner filed a request for a determination that he was entitled to medical treatment under section 4600, and requested an expedited hearing pursuant to section 5502, subdivision (b). He claimed Nurserymen’s had refused to authorize more than 24 chiropractor visits to treat his industrial injury, including those treatments occurring before Nurserymen’s accepted his initial claim for benefits.

A hearing was held before a WCAB judge (WCJ) on February 16, 2007,^[2] and an initial decision was issued on March 9. That decision was rescinded by the WCJ upon petitioner’s application, and a further hearing was held on July 23. A new decision was filed on July 30, and petitioner filed a motion to reconsider that decision on several grounds, including that (1) petitioner’s treating chiropractor was entitled to manage his further treatment and remain as petitioner’s treating health care provider, and (2) the 24 chiropractic visit limitation in section 4604.5(d) was unconstitutional under both the California and federal Constitutions.

The WCJ determined that petitioner’s first ground for reconsideration had merit. Therefore, a new decision was issued on September 5, in which the WCJ rescinded her July 30 decision, and made new findings and conclusions. These new findings included that (1) petitioner was entitled to no more than 24 chiropractic treatments per industrial injury under section 4604.5(d), and this section was applicable because petitioner’s injury occurred after January 1, 2004; (2) because petitioner’s treating chiropractor, Dr. Pevec, was a member of Nurserymen’s medical provider network, Dr. Pevec could serve as petitioner’s duly selected treating health care provider; and (3) therefore, petitioner was entitled to additional visits with Dr. Pevec “for the purpose of enabling Dr. Pevec to manage his care and render opinions on all medical issues necessary to determine his eligibility for compensation.” As to petitioner’s constitutional challenges, the WCJ concluded that she lacked the legal authority to decide them.

Petitioner sought reconsideration with the WCAB. The WCAB granted reconsideration and adopted the September 5 decision of the WCJ as its own. Once again, it reaffirmed that it lacked the authority to decide appellant’s constitutional challenged to section 4604.5(d). The WCAB’s decision was filed on October 11.

The first paragraph of article XX, section 21 was virtually identical to article XTV, section 4, and expressly vested in the Legislature “ ‘plenary power, unlimited by any provision of this Constitution,’ ” to create and enforce a “ ‘complete system of workmen’s [sic] compensation,’ ” which provides “ ‘full provision’ ” of benefits to an injured worker “ ‘irrespective of the fault of any party.’ ” (Mathews, supra, 6 Cal.3d at p. 724, fn. 2, italics omitted.) Like petitioner here, the claimant in Mathews argued that section 3600(g), which excepted from benefits any injury arising from an altercation in which the injured employee was the initial physical aggressor, was unconstitutional in that it conflicted with section 21.^[3]

The Supreme Court held that the state Constitution did not prohibit the Legislature from conditioning the right of compensation, as expressed in section 3600(g). (Mathews, supra, 6 Cal.3d at pp. 724-725.) Noting that while the claimant’s argument that the exception in section 3600(g) was in conflict with article XX, section 21 had “a surface plausibility, an examination of the legislative history behind the workmen’s compensation laws and [section 21] demonstrates that the contention rests upon a basic misconstruction of the Constitution.” (Mathews, supra, at p. 728.)

The high court explained that during the first two decades of the 20th century, California joined many other states by enacting a workers’ compensation system that operated largely without regard for the common law system of fault. Because the enactment of a no-fault system of workers’ compensation was such a radical change from the common law relating to recompense for occupational injuries, the Legislature sponsored an amendment to the state Constitution in the form of article XX, section 21, “to remove all doubts as to the constitutionality of then existing workmen’s compensation laws.” (Mathews, supra, 6 Cal.3d at pp. 729-733.)

The Rio Linda court rejected this argument, citing the language in Wal-Mart that “[t]he California Constitution does not make a worker’s right to benefits absolute. . . .” (Rio Linda, supra, 131 Cal.App.4th at p. 532, citation omitted.) The court further noted that, as a court, it was not “allowed to second-guess the apparent policy decision of the Legislature, in addressing the workers’ compensation crisis (Stats. 2004, ch. 34, § 49) . . . .” (Ibid.)

Thus, it is abundantly clear that as a matter of law, article XIV, section 4 neither restricts the Legislature’s ability to limit the number of chiropractic treatments for which the workers’ compensation system must be financially responsible, nor does it expand an injured worker’s constitutional rights to include an entitlement to receive unlimited treatments. Like the court in Rio Linda, we will not second-guess the wisdom of the Legislature in meeting the workers’ compensation crisis in this state by, among other things, specifying the maximum amount of chiropractic care an injured worker may receive for a single industrial accident.^[4] The Legislature clearly has the constitutional authority to make that determination.

Even if this could be read as requiring the Legislature to build a dispute adjudication or resolution procedure into the workers’ compensation system (see discussion of Mathews, supra, 6 Cal.3d 719 , ante), a disagreement with an employer’s refusal to approve excess treatments does not give rise to a legally cognizable “dispute.” The statute limits chiropractic visits even if the chiropractor, or any other practitioner of the healing arts, expresses the view that the claimant would benefit from further treatments. The employer has the sole discretion as to whether to approve payment for more than 24 visits. The decision does not turn on the worker’s need for the treatment, or any other factual determination.^[5] Therefore, because there is no legal or factual disagreement, or “dispute,” arising from the decision to approve or disapprove more treatments, no adjudication by a neutral party is necessary.

As to the second, due process, prong of his argument, petitioner relies on People v. Lockheed Shipbuilding & Constr. Co. (1973) 35 Cal.App.3d 776 [ 111 Cal.Rptr. 106 ] (Lockheed). In that case, the Court of Appeal held that a statute joining the authority of the Division of Industrial Safety to investigate the cause of all industrial injuries resulting in disability or death, and make “ ‘just and reasonable’ ” orders or recommendations with another statute making a subsequent violation of such an order a misdemeanor was a violation of due process because there was no provision for a hearing on the alleged safety violation. (Id. at pp. 779-780.) Because the violator of the safety order could be criminally liable for the violation, due process required

An equal protection argument similar to that advanced by petitioner was raised in Sakotas v. Workers’ Comp. Appeals Bd., supra, 80 Cal.App.4th 262 (Sakotas). In that case, a Motel 6 employee filed a claim for workers’ compensation benefits relating to a psychological injury she allegedly sustained while at work. Medical expert testimony in the case concluded that 80 percent of the employee’s psychological disability resulted from nonindustrial circumstances and conditions. Because a majority of the employee’s disability was not work related, the WCJ concluded that the employee was not entitled to benefits pursuant to section 3208.3, subdivision (b)(1). As amended in 1993, that section provides: “In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.” (§ 3208.3, subd. (b)(1); Stats. 1993, ch. 118, § 1, p. 1225; see Sakotas, supra, 80 Cal.App.4th at pp. 265-267.) The employee, and her amicus curiae, contended that imposing a predominant causation test as a condition to her receipt of benefits discriminated against her based on the type of injury suffered. She claimed this form of discrimination amounted to a violation of her right to equal protection. (80 Cal.App.4th at p. 270.)

The court rejected the employee’s equal protection argument, noting that she was not a member of a suspect class, a foundational prerequisite for making such a constitutional claim. (Sakotas, supra, 80 Cal.App.4th at p. 271.)^[6] Her not being a member of a suspect class prevented the court from examining the claim through the stringent prism of strict scrutiny. Instead the court held that section 3208.3 would be upheld so long as its enactment had a legitimate governmental purpose. (80 Cal.App.4th at p. 272.) The court concluded that such a rational purpose was evident from the fact that section 3208.3 was enacted as part of the Margolin-Greene Workers’ Compensation Reform Act of 1989, which sought to combat the proliferation of fraudulent psychiatric claims and to reduce the costs of workers’ compensation coverage. (80 Cal.App.4th at pp. 272-273.)