Opinion
[27 Ark.App. 241-A] PER CURIAM.
Petition for rehearing denied.
ROGERS, Judge, dissenting.
The petitioners have filed a timely Petition for Rehearing asking this court to reconsider the position taken by the court that they have no standing to challenge the constitutionality of the provision in Ark.Code Ann. § 11-9-514(a)(2) (1987). This statute provides that a change of physician to a chiropractor need only be preceded by advance written notice, as opposed to the situation where Commission authorization is required on a finding of a compelling reason to justify changing from one physician to another. I find their arguments persuasive, and in my view petitioners do have standing to raise this issue; therefore, I would grant their petition, and ultimately reach the question presented, which at first blush, seems to have merit.
As noted by the court in its opinion, one who possesses a financial interest can be accorded standing to challenge the constitutionality of a statute. See Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). In the opinion, these cited cases were discussed, and yet distinguished on the basis that the "award" in this case was not made pursuant to the challenged statute, but pursuant to Ark.Code Ann. § 11-9-508(a) (1987) upon a finding that the chiropractic treatment was "reasonably necessary." This distinction, while technically correct, ignores the fact that the initial change to a chiropractor which was contested gave rise to the petitioner's liability under § 11-9-508(a). Thus, it is illogical for this distinction to be made controlling when there is a discernible nexus between the two statutes, and it effectively insulates this provision from judicial review.
More importantly, however, this decision sweeps too broadly in its holding that the petitioners alone, without the intervention of a physician, would not in any event have standing to test the constitutionality of this provision. The petitioners are interested [27 Ark.App. 241-B] parties in that the whole scheme of workers' compensation law rests upon the responsibility of employers to compensate their employees for job-related injuries. The petitioners' financial obligations, as envisioned by the statutory scheme, should give them standing to raise this issue. The petitioners' "injury" in this case is evident not only from this standpoint, but also from the fact that the respondent did take advantage of this provision resulting in the petitioners having to pay for the treatment after having to litigate this change in the first place. To say otherwise, places the petitioners and those similarly situated in the untenable position of having to pay for the treatment without question or engage in costly litigation. I would grant the petition.