24 VISIT CAP CONSTITUTIONAL CHALLENGE 


Updates on Jose Facundo-Guerrero v. WCAB, Nurseryman's Exchange, Argonaut Insurance

The Supreme Court Has Chosen Not To Review And Reverse The Decision From The Court of Appeal.  The Final Outcome Is That An Employer Is Only Financially Responsible for 24 Chiropractic Treatment Visits Per Industrial Injury.

As new developments arise, they will be posted below.

This website was last updated September 18, 2008.

The section of the California Constitution addressing workers' compensation is Article XIV, Section 4, which can be read by clicking here.

The Petition seeking appellate review of the constitutionality of the 24 visit cap on chiropractic treatment can be read by clicking here.

The Answer from counsel for the respondent insurer can be read by clicking here.

Mr. Facundo-Guerrero's Reply to the Answer from the respondent insurer can be read by clicking here.

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To access the docket from the First District Court of Appeal,  in order to stay current on the status of this case, click here.

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Amicus curiae briefs, commonly called friend-of-the-court briefs, have been filed by those interested entities who support the petitioner, Jose Facundo-Guerrero.

As well,  interested entities who support the respondent, Argonaut Insurance Company, have filed amicus curiae briefs.

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The California Workers Compensation Institute (CWCI), a consortium of workers' compensation insurers and permissibly self insured employers, have filed an amicus curiae brief in support of respondent, which can be read by clicking here.

The California Society of Industrial Medicine and Surgery (CSIMS) has filed an amicus curiae brief in support of the petitioner, which can be read by clicking here.

The California Applicants' Attorney Association (CAAA) has filed an amicus curiae brief in support of petitioner, which can be read by clicking here.

Boehm & Associates has filed an amicus curiae brief in support of petitioner, which can be read by clicking here.

The International Chiropractic Association of California (ICAC) has filed an amicus curiae brief in support of petitioner, which can be read by clicking here.

The California Chiropractic Association (CCA) has filed an amicus curiae brief in support of petitioner, which can be read by clicking here.

The California Chamber of Commerce (CalChamber) has filed an amicus curiae brief in support of the respondent, which can be read by clicking here.

Respondent Argonaut Insurance has filed a response to the amici briefs filed by the CCA, ICAC, CSIMS, CAAA, and Boehm & Associates.  The reply to petitioner's amicus curiae briefs can be read by clicking here. 

Petitioner Jose Facundo-Guerrero has filed a response to the amicus curiae briefs filed by the CalChamber and CWCI.  The reply to respondent's amicus curiae briefs can be read by clicking here.

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The First District Court of Appeal issued their published opinion June 2, 2008, refusing to invalidate the 24 visit cap.  A copy of the opinion can be read by clicking here.

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SUPREME COURT 

A copy of the petition, from counsel representing Jose Facundo-Guerrero, seeking review from the California Supreme Court can be read by clicking  here.

A copy of the answer from counsel representing respondent insurer can be read by clicking here.

A copy of the reply from Jose Facundo-Guerrero  to respondent's answer can
be read by clicking here.

The California Workers' Compensation Reporter (CWCR) wrote a 3 page review of the decision from the Court of Appeal.  A copy can be read by clicking here.

On their own motion, the Supreme Court Justices have decided to extend the time frame to decide whether to grant or deny review until October 9, 2008.  The Supreme Court docket, outlining this development, can be accessed by clicking here.

The California Supreme Court has affirmed the decision from the Court of Appeal by refusing to grant review.

This case is now concluded.

In a blow to Jose Facundo-Guerrero, as well as any industrially injured worker in California, the California Supreme Court has chosen to let stand the decision from the First District Court of Appeal.

This is the first time, in the history of the California workers' compensation system, that the Legislature has capped treatment necessary to "cure and relieve" in order to save the employer the cost of providing this treatment.

This does not bode well for employees in California, as now cost saving for employers trumps the injured workers need for treatment necessary to return to work.

The one-size-fits-all lifetime cap of 24 chiropractic visits is the first step on a slippery slope, whereby minimization of cost is exalted over provision of proper medical care necessary for a speedy recovery.  If reasonable chiropractic treatment can be capped due to expense, provision of medications, physician visits, or provision of surgeries can also be legislatively capped to a single pill, a single visit with a physician, or a single surgery --- solely to minimize costs for employers.

The workers' compensation bargain from more than 90 years ago, whereby injured workers gave up the right to sue their employers for industrial injuries in exchange for "full provision" of medical treatment reasonably necessary to cure and relieve, is now illusory.

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California's Constitution mandates compulsory workers' compensation insurance for all employers to ensure their employees will receive compensation in the form of "full provision" of medical treatment necessary to cure or relieve, and "adequate provision" of disability benefits if an employee sustains injury arising out of employment or if the employee's injury is caused by employment.

In 2003, the Legislature decided to limit the provision of chiropractic treatment to no more than 24 visits for an employee who sustains injury on or after January 1, 2004, unless the claims adjuster for an insurer authorizes more than 24 chiropractic visits.

The lifetime limit on chiropractic treatment is found in Labor Code Section 4604.5(d)(1) and (d)(2), which reads as follows:

(d)(1) "Notwithstanding the medical treatment utilization schedule or the guidelines set forth in the American College of Occupational and Environmental Medicine's Occupational Medicine Treatment Guidelines, for injuries occurring on or after January 1, 2004, an employee shall be to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury."

(d)(2) "Paragraph (1) shall not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services."

For workers' compensation purposes, the term "employer" means the same as the term "insurer."

If a claims adjuster for an insurer refuses to authorize more than 24 chiropractic visits, even if a physician recommends additional chiropractic treatment is reasonably necessary to cure or relieve, the injured worker has no recourse before the Workers' Compensation Appeals Board (WCAB), or before any other court.

Mr. Facundo-Guerrero sustained a serious work related injury in 2005.  As a result of this injury, he sought treatment from chiropractor Marijan Pevec as he did not wish to undergo spinal surgery as recommended by an orthopedic physician.  As a result of this chiropractic treatment, Mr. Facundo-Guerrero was able to recover sufficiently to return to work for his employer without surgery, and without the need to take highly addictive narcotic pain medications.

In order to maintain the function necessary to continue working, Mr. Facundo-Guerrero sought authorization for additional chiropractic treatment from his employer's workers' compensation insurer.  The claims adjuster for the workers' compensation insurer refused to authorize additional chiropractic treatment after Mr. Facundo-Guerrero had received 24 chiropractic visits.

Mr. Facundo-Guerrero decided to legally confront the limitation of 24 lifetime chiropractic treatment visits by initiating a constitutional challenge to the validity of the 24 visit cap.

The primary basis for this challenge to the legality of the 24 visit cap on chiropractic treatment was that the California Constitution provides that an injured worker is entitled to "full provision" of reasonable treatment necessary to "cure and relieve."

In addition, Mr. Facundo-Guerrero has taken the position that the law improperly provides that only the claims adjuster who works for the workers' compensation insurer --- the entity who would be required to pay for this treatment --- is allowed to authorize additional chiropractic treatment.

If a claims adjuster has denied authorizing additional chiropractic treatment, there is no judicial dispute resolution mechanism available before the Workers' Compensation Appeals Board, or before any other court.

Mr. Facundo-Guerrero has stated this is a clear-cut example of the Legislature allowing the fox to guard the hen-house.

In Mr. Facundo-Guerrero's case, an orthopedic physician has opined that Mr. Facundo-Guerrero reasonably requires additional chiropractic treatment to maintain the function necessary to continue working.

The workers' compensation insurer's claims adjuster, handling the claim for Mr. Facundo-Guerrero, has refused to authorize additional chiropractic treatment, despite the fact an orthopedic physician has made a medical determination additional chiropractic treatment is medically necessary.

 Mr. Facundo-Guerrero is seeking to invalidate the 24 visit lifetime cap on chiropractic treatment before the First District Court of Appeal, Divsion 4.  The Justices of the Court of Appeal have granted a writ of review for the purposes of resolving the dispute as to whether the 24 visit lifetime cap comports with the mandate in the California Constitution that an injured worker is entitled to "full provision" of reasonable treatment necessary to "cure and relieve" him or her from the effects of an industrial injury.

The purpose of this website is to keep the interested public aware of the developments in this case as it progresses through the courts.  In this David v. Goliath battle, Mr. Facundo-Guerrero is being represented before the WCAB by attorney Daniel Smith, and in the appellate court by former Supreme Court Justice Armand Arabian.

Effective April 18, 2008, this case has been fully briefed by both petitioner Jose Facundo-Guerrero, and respondent Argonaut Insurance Company.  Many 'friend-of-the-court' briefs, also called amicus curiae briefs, have been filed by interested entities.

In support of the injured worker, petitioner Jose Facundo-Guerrero, amicus curiae briefs have been filed by the California Applicant Attorney Association, the California Chiropractic Association, the International Chiropractic Association of California, the California Society of Industrial Medicine and Surgery, as well as Boehm & Associates.

In support of the employer's worker's compensation insurer, Argonaut Insurance Company, amicus curiae briefs have been filed by the California Chamber of Commerce and the California Workers' Compensation Institute.

All amicus curiae briefs submitted by interested entities have been responded to by both petitioner and respondent.

Oral arguments are scheduled for May 19, 2008, at the First District Court of Appeal, Division Four, located at 350 McAllister Street, San Francisco, California 94102 at 9:30 a.m.

After listening to oral arguments on May 19, 2008, the First District Court of Appeal declined to invalidate the 24 visit cap June 2, 2008, and issued a published opinion.

Jose Facundo-Guerrero filed a petition for review with the Supreme Court on July 11, 2008.  Respondent Argonaut Insurance Company has until July 31, 2008 to issue an answer.  Thereafter, counsel for petitioner Jose Facundo-Guerrero has until August 10, 2008 to file their reply brief.

The California Supreme Court usually determines whether to grant or deny review within 60 days after the petition seeking review is filed.  Jose Facundo-Guerrero should learn whether the Supreme Court will grant or deny review before September 10, 2008.

An answer from counsel representing respondent Argonaut Insurance Company was filed with the Supreme Court.

Former Supreme Court Justice Armand Arabian, who is representing Jose Facundo-Guerrero, filed a reply to respondent's answer.  At this point, all briefing necessary for the Supreme Court to determine whether or not to grant review has been submitted.

If the Supreme Court does grant review, both parties will be able to file significant additional briefing.

The California Workers' Compensation Reporter (CWCR), which can be cited in a legal brief, has issued a 3 page summary of the outcome of this case, including the fact Jose Facundo-Guerrero has sought review from the Supreme Court.  The editorial at the end notes that a chiropractor can still manage the care of an injured worker, directing the type and course of treatment to be provided an injured worker, but without providing treatment
 to that injured worker once 24 "treatment" visits have been provided.  This is important.  To review this citation, look to the left side of this page at the bottom.