Strohm v. Hertz Corporation/Hertz Claim Management

• Decision Date: 05 December 1996
• Docket Number: No. 95-3233,95-3233
• Citation: 685 So.2d 37
• Parties: 21 Fla. L. Weekly D2570 Donald STROHM, Appellant, v. The HERTZ CORPORATION/HERTZ CLAIM MANAGEMENT, Appellees.
• Court: Florida District Court of Appeals

Page 37

685 So.2d 37

21 Fla. L. Weekly D2570

Donald STROHM, Appellant, v. The HERTZ CORPORATION/HERTZ CLAIM MANAGEMENT, Appellees.

No. 95-3233.

District Court of Appeal of Florida First District.

Dec. 5, 1996.

Rehearing Denied Jan. 14, 1997.

Law offices of Richard Sadow, and Steven R. Berger of Berger & Chafetz, Miami, for Appellant.

Kimberly A. Hill of Conroy, Simberg & Lewis, P.A., Hollywood, for Appellees.

KAHN, Judge.

In this workers' compensation case, appellant Donald Strohm challenges the constitutionality of section 440.13(2)(a), Florida Statutes (1994 Supp.). Under one broad issue on appeal, appellant argues that the statute in question violates his Florida constitutional right of access to courts and denies him due process and equal protection under the law. Because the statute falls within the constitutional parameters by which our Workers' Compensation Act has traditionally been judged, we affirm the order on appeal and hold that the statute is constitutional. ^*

Mr. Strohm is a 63-year-old workers' compensation claimant. He holds a deep belief in chiropractic as evidenced by his testimony that he has sought chiropractic treatment for himself and his children for a broad range of maladies ranging from colds to warts to bed wetting. On January 19, 1994, Mr. Strohm was involved in a compensable automobile accident. Appellees authorized chiropractic care immediately, and claimant sought treatment the day after the accident from chiropractor Michael Atwood. There is no dispute that appellee's ultimate deauthorization of Dr. Atwood fell within the provisions of section 440.13(2)(a):

Medically necessary treatment, care and attendance does not include chiropractic services in excess of eighteen treatments or rendered eight weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.

Because the employer/carrier provided the care contemplated by this statute, the judge of compensation claims did not authorize further chiropractic treatment. Claimant's legal position in this case was aptly characterized by his testimony at trial: "I think that I have a right to choose who I'm going to go to...."

Article I, section 21 of the Florida Constitution establishes that right commonly known as access to courts and provides: "The courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay." Under the constitution, a common law right may not be abolished by the Legislature without a reasonable alternative to protect the rights of the people to redress for injuries. Kluger v. White, 281 So.2d 1 (Fla.1973). Accordingly, in order to make a colorable claim of denial of access to courts, an aggrieved party must demonstrate that the Legislature has abolished a common law right previously enjoyed by the people of this state.

Here, appellant has not presented anything even remotely suggesting that he had a common law right to chiropractic care at the time the Declaration of Rights in the Florida Constitution was adopted. Even assuming such a right, however, appellant has not carried his burden of demonstrating the abolition of such. The restriction crafted by the Legislature in section 440.13(2)(a) does not restrict the workers' compensation claimant's right to receive appropriate treatment; it merely diminishes, after a certain point in time, the range of providers who can offer such treatment under the Workers' Compensation Act.

Under an access to courts analysis, we hold that the Legislature did not destroy or abolish a common law right of action by limiting chiropractic care under section 440.13(2)(a). Our holding is in accord with a line of cases from this court and the Florida Supreme Court. See, e.g., Newton v. McCotter Motors, Inc., 475 So.2d 230 (Fla.1985) (holding provision requiring that death must result within one year of a compensable accident or following five years of continuous disability to be eligible for death benefits, did not deny access to courts), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 323 (1986); Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), aff'd 452 So.2d 932 (Fla.1984), appeal dismissed, 469 U.S. 1030, 105 S.Ct. 498, 83 L.Ed.2d 391 (1984) (holding provision cutting off wage-loss benefits at age 65, did not deny access to courts); Acton v. Ft. Lauderdale Hosp., 440 So.2d 1282 (Fla.1983) (approving district court's determination that 1979 amendment that replaced permanent partial disability benefits in section 440.15(3) with permanent impairment and wage-loss benefits system did not violate access to courts); Iglesia v. Floran, 394 So.2d 994 (Fla.1981) (holding amendment repealing right to bring lawsuit for negligence of coworkers except in cases of gross negligence, did not deny access to courts); Bradley v. The Hurricane Restaurant, 670 So.2d 162 (Fla. 1st DCA 1996) review denied, 678 So.2d 337 (Fla.1996) (holding section 440.15(3), Florida Statutes (Supp.1994) which significantly reduces benefits to a permanently injured worker from benefits that the same injured worker would have received had the worker been injured earlier, does not violate right of access to courts); John v. GDG Servs., Inc., 424 So.2d 114, 116 (Fla. 1st DCA 1982), aff'd 440 So.2d 1286 (Fla.1983) ("Workers' compensation provisions have long been justified as a necessary exchange--the employee trades his common-law remedy for a sure expeditious method of settling claims.")

We further hold that the statute denies neither equal protection nor due process. Based upon our analysis in Rucker v. City of Ocala, 684 So.2d 836 (Fla. 1st DCA 1996), no due process violation appears, because Strohm has not shown that he has been denied a meaningful opportunity to be heard. Similarly, appellant demonstrates no equal protection violation. The class of workers' compensation claimants who prefer treatment by chiropractors is not under any case brought to our attention a suspect classification. Because "no suspect classification is involved here, the statute need only bear a reasonable relationship to a legitimate state interest. Some inequality or imprecision will not render a statute invalid." Acton v. Fort Lauderdale Hosp., 440 So.2d at 1284. Social legislation, such as workers compensation acts, is generally subject to a rational relationship analysis. See B & B Steel Erectors v. Burnsed, 591 So.2d 644, 647 (Fla. 1st DCA 1991) ("[I]n reviewing general social and economic legislation which does not employ a suspect classification or impinge on a fundamental right, courts apply the 'rational relationship' test ... [T]he 'some reasonable basis' standard is appropriate when employing the rational basis test. Under this standard, the courts uphold classifications so long as there appears to be any plausible reason for the Legislature's action, asking only whether it is conceivable that the classification bears a rational relationship to an end of government which is not prohibited by the government.") (citations omitted).

We have looked, as did the Florida Supreme Court in Clair v. Glades County Board of Commissioners, 649 So.2d 224 (Fla.1995), at the scope of practice authorized under Florida law for chiropractors and other healthcare providers. We conclude, as did the supreme court, that a review of Florida's statutory standards

"reveals that medical doctors and osteopathic physicians are qualified and licensed in the broadest manner. Their qualifications and licensure would appear to encompass those areas of practice allowable for ... chiropractors."

649 So.2d at 226-227.

To the extent that the present legislation treats chiropractors differently than medical doctors, osteopaths, or podiatrists, it is not novel. As the supreme court in Clair noted, the scope of practice of chiropractors is far more specifically delineated by Florida law than the range of practice allowed for the other classes of health care providers. See § 458.305, Fla.Stat. (1993) (medical doctors); § 459.011(2), Fla.Stat. (1993) (osteopathic physicians); § 461.003(3), Fla.Stat. (1993) (practitioners of podiatric medicine); § 460.403, Fla.Stat. (1993) (chiropractors). Chiropractic physicians "are expressly prohibited from prescribing or administering to any person, any legend drug, from performing any surgery (except as specifically authorized), or from practicing obstetrics." § 460.403(3)(c), Fla.Stat. (1995). Although Florida hospitals are required by law to set standards and procedures which provide for reasonable...