Will Chiropractice & PT Restrictions Be Upheld?

Thursday, January 20, 2005 | 0

The 24 visit cap on chiropractic visits has our chiropractor's knickers in a knot. Although I am not a chiropractor, I've been wondering if the 24 visit rule can withstand constitutional scrutiny. Naturally, the defense side will say "Yes, the legislature made the labor code and they have plenary authority to create and enforce a complete system of workers' compensation."

However, I'm still wondering.

Our California Constitution states, in pertinent part, "A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury;.........."

Does a 24 visit cap comply with the constitutional mandate that the system created will furnish "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury....."?

Let's look at a hypothetical enactment by the legislature of a new and novel Labor Code that only allows one (1) visit to a medical doctor for any industrial injury. Would that new and novel Labor Code comport with the constitutional mandate for "full provision"? I think not.

Well, there is the argument that the 24 visit rule is a 'soft cap' and the employer may choose to authorize further visits. But this is certainly a clear-cut example of leaving the fox to guard the henhouse.

I wonder how the appellate courts would rule if the perfect case was presented. What if an IW sustains an admitted soft tissue injury, like a rotator cuff tear, after 1/1/04. The IW was initially treated at the employer's clinic of choice and received, say, 12 conservative chiropractic visits and 12 PT visits. The injury does not heal and the IW free-choices to a chiropractor and receives another 12 chiropractic visits, and another 12 PT visits, thus capping out the 24 visits for both Chiropractic and PT, before being referred to an orthopod for surgery.

The orthopod performs surgery and the IW now needs Physical Therapy or Physio Therapy to increase ROM and bring back functional restoration ----- but the defendant employer refuses to authorize any further chiropractic or PT.

Does the "plenary authority" vested in the legislature allow the legislature to craft a Labor Code that stops short of providing "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury....." regardless of whether the treatment is provided by an MD or a DC?

Would this scenario present a perfect case to challenge the constitutional validity of LC 4604.5(d), particularly in light of the fact osteopaths can manipulate until the cows come home?

Hmmmmm, I wonder...

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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