Chiropractors. Section 39-71-704(1), MCA (1993), and other statutory
and regulatory provisions, do not deny equal protection or due process
by providing that an insurer is not required to furnish maintenance
care. (Note: WCC was affirmed by the Supreme Court in an unpublished,
nonciteable opinion, Wieglenda v. State Compensation Insurance
Fund/Department of Labor and Industry, No. 97-045 (1997).)
This is a so-called appeal
from a decision of the Department of Labor and Industry (Department).
The appellant herein, Ruth
Wieglenda (claimant), petitioned the Department on April 11, 1996. The
petition was in the form of a letter from claimant's attorney, Don Edgar
Burris (Burris), accompanied by various exhibits. In relevant part,
claimant, through Burris, alleged that the exclusion of maintenance
and palliative medical care from covered medical expenses, § 39-71-704(1)(f),
MCA (1993), is unconstitutional. The petition further alleged that the
Department lacked jurisdiction over the constitutional challenge and
requested that the Department dismiss the petition so claimant could
appeal the constitutional issues to this Court. On May 20, 1996, a hearing
officer of the Department obliged, finding that the Department indeed
lacked jurisdiction over constitutional Issues. (Findings of Fact; Conclusions
of Law; and Final Order.(1)) On June
19, 1996, claimant filed a Notice of Appeal with this Court, asking
it to declare the exclusion unconstitutional.
It is tempting to dismiss
the present appeal out-of-hand. The Department granted the relief requested
by claimant. While judicial review is available to examine the correctness
of the decision below, or the sufficiency of the process below, § 2-4-704,
MCA, claimant does not challenge the Department's decision or the manner
in which it was reached. Judicial review is available to persons "aggrieved"
by a final agency decision. § 2-4-702(1)(a), MCA. Claimant does not
satisfy that prerequisite. Thus, if this matter is treated as an appeal,
the Court must affirm the Department's decision, which claimant concedes
is correct, and go no further. § 2-4-704(2), MCA.
It is apparent, however,
that the claimant seeks to invoke this Court's original jurisdiction
to decide constitutional issues. Administrative agencies, including
the Department of Labor and Industry, are powerless to declare a statute
or administrative regulation unconstitutional. "A judicial body, not
an administrative body, is the proper forum to decide constitutional
questions . . . ." Schneeman v. Department of Labor and Industry,
257 Mont. 254, 259, 848 P.2d 504, 507 (1993) (citing Jarussi
v. Board of Trustees, 204 Mont. 131, 135-36, 664 P.2d 316, 318
(1983)). The original jurisdiction of the Workers' Compensation Court
is not limited to determining specific benefits; it extends to other
matters which may affect benefits and encompasses requests for declaratory
rulings in such matters. State ex rel. Uninsured Employers' Fund
v. Hunt, 191 Mont. 514, 625 P.2d 539 (1981). Since claimant's constitutional
attack on section 39-71-704(1)(f), MCA, ultimately affects her entitlement
to medical benefits, this Court has original jurisdiction over her challenge
and will treat her appeal as a petition for declaratory judgment. Respondent
will not be affected by this treatment since it has responded to claimant's
constitutional contentions and has assumed that those issues are properly
before the Court.
Raised by Claimant
In her Notice of Appeal
the claimant alleges:
The statutes (39-71-116(13)
to (16), 39-71-704 and Med. Service Rule 24.29.2004 are unconstitutional
on the grounds they deny due process and, equal protection of the
law and, constitute cruel and unusual punishment. [Sic.]
The Statutes and Rule
The laws in effect at the
time of the claimant's injury govern her right to benefits. Buckman
v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380,
382 (1986). Both parties agree that claimant's injury occurred in 1994
and that the 1993 version of the Workers' Compensation Act (WCA) applies
in this case.
The 1993 statutes and administrative
rule challenged by the claimant are as follows:
"Maintenance care" means treatment designed to provide the optimum
state of health while minimizing recurrence of the clinical status.
(16) "Palliative care" means treatment designed to reduce or ease
symptoms without curing the underlying cause of the symptoms.
of medical, hospital, and related services-fee schedules and hospital
rates - fee limitation. (1) In addition to the compensation
provided under this chapter and as an additional benefit separate
and apart from compensation benefits actually provided, the following
must be furnished:
(a) After the happening
of a compensable injury and subject to other provisions of this chapter,
the insurer shall furnish reasonable primary medical services for
conditions resulting from the injury for those periods as the nature
of the injury or the process of recovery requires.
(b) The insurer shall
furnish secondary medical services only upon a clear demonstration
of cost-effectiveness of the services in returning the injured worker
to actual employment.
(c) The insurer shall
replace or repair prescription eyeglasses, prescription contact lenses,
prescription hearing aids, and dentures that are damaged or lost as
a result of an injury, as defined in 39-71-119, arising out of and
in the course of employment.
(d) The insurer shall
reimburse a worker for reasonable travel expenses incurred in travel
to a medical provider for treatment of an injury only if the travel
is incurred at the request of the insurer. Reimbursement must be at
the rates allowed for reimbursement of travel by state employees.
(e) Except for the repair
or replacement of a prosthesis furnished as a result of an industrial
injury, the benefits provided for in this section terminate when they
are not used for a period of 60 consecutive months.
subsection (1)(a), the insurer may not be required to furnish, after
the worker has achieved medical stability, palliative or maintenance
(i) when provided to a
worker who has been determined to be permanently totally disabled
and for whom it is medically necessary to monitor administration of
prescription medication to maintain the worker in a medically stationary
(ii) when necessary to
monitor the status of a prosthetic device.
(g) If the worker's treating
physician believes that palliative or maintenance care that would
otherwise not be compensable under subsection (1)(f) is appropriate
to enable the worker to continue current employment or that there
is a clear probability of returning the worker to employment, the
treating physician shall first request approval from the insurer for
the treatment. If approval is not granted, the treating physician
may request approval from the department for the treatment. The department
shall appoint a panel of physicians, including at least one treating
physician from the area of specialty in which the injured worker is
being treated, pursuant to rules that the department may adopt, to
review the proposed treatment and determine its appropriateness.
(h) Notwithstanding any
other provisions of this chapter, the department, by rule and upon
the advice of the professional licensing boards of practitioners affected
by the rule, may exclude from compensability any medical treatment
that the department finds to be unscientific, unproved, outmoded,
or experimental. [Emphasis added.]
WORKERS' COMPENSATION DOES NOT PAY (1) For maintenance
-- a regime designed to provide the optimum state of health while
minimizing recurrence of the clinical status.
(2) Prevent treatment
-- procedures necessary to prevent the development of clinical status.
The constitutional challenge
in this case is a legal one. No facts were developed below and claimant
does not attempt to lay any factual predicate here. Nonetheless, it
is helpful to understand the context in which this case arises. That
context is provided in the petition(2)
and exhibits filed with the Department.
It appears that claimant
was injured on May 25, 1994. (Ex. A at 1.) She thereafter received chiropractic
treatments from Richard Vande Veegaete, D.C. (Exs. A and C.)
On December 19, 1995, the
State Fund wrote to Dr. Vande Veegaete advising him that its chiropractic
consultant had determined that "the treatments currently being provided
to" claimant are "maintenance in nature." (Ex. A. at 1.) The letter
then notified Dr. Vande Veegaete that the State Fund would not pay for
future maintenance treatments. (Id.)
Claimant, either before
or after the State Fund letter, retained Burris. On January 7, 1996,
Burris wrote Dr. Vande Veegaete asking if he agreed his treatments were
maintenance in nature. (Ex. B.) The doctor replied in the affirmative
and confirmed that claimant had reached maximum medical improvement.
(Ex. C.) However, he went on to indicate that chiropractic treatment
was appropriate for claimant's continuing pain, that pain medication
was inappropriate because of claimant's prior drug addiction to them,
and that exercise was inappropriate because claimant was unable to tolerate
traditional exercise programs. (Id.)
It is apparent from the
foregoing facts, and the present litigation, that claimant wishes to
continue chiropractic maintenance treatments. She does not challenge
the characterization of further treatment as "maintenance" or "palliative"
within the meaning of sections 39-71-704(1)(f) and -116(16) and (20),
MCA, but seeks to establish her entitlement to reimbursement for such
In Appellants' Opening Brief
at page 1, the claimant restates the issue in rather colorful terms,
Whether the Legislature,
in an effort to grant largesse and political pork to insurance companies,
denies injured workers' due process and equal protection of the law
under the Montana Constitution and/or the United States Constitution
by requiring an injured employee to either (1) suffer from chronic and
intractable pain or (2) become addicted to pain medication in order
to mask the pain and (3) be financially responsible for maintenance
care as to the pain in all cases? (39-71-116, MCA; 39-71-704, MCA; Med.
Service Rule 24.29.2004.)
Initially, the Court need
not consider the challenge to ARM 24.29.2004. That regulation merely
repeats what is already set forth in the statutes, §§ 39-71-116(13)
and (16), 39-71-704(1)(f), MCA, and is superfluous. If the statutes
are constitutional, then the regulation is too.
1. Claimant's Burden
The standard for reviewing
a constitutional challenge is well established. "The constitutionality
of a legislative enactment is prima facie presumed, and every
intendment in its favor will be made unless its unconstitutionality
appears beyond a reasonable doubt." Ingraham v. Champion International,
243 Mont. 42, 47, 793 P.2d 769, 772 (1990). The party challenging
the constitutionality of a statue "has a heavy burden of proving a violation
of fundamental law." Harper v. Greely, 234 Mont. 259, 269,
763 P.2d 650, 657 (1988).
2. Equal Protection
and Due Process
Initially, in passing upon
claimant's equal protection and due process arguments, the Court is
hampered by her counsel's failure to set forth basic legal principles
and cite legal authority. Appellant's Opening Brief at 5-6 contains
one citation, which is to Medora v. Colautti, 602 F.2d 1149
(1979). He cites that case for the proposition that "[w]here there is
disparate treatment involving 'denial of all aid, the courts will more
closely examine the rationality of the underlying classification.'"
602 F.2d at 1154. Even the single citation to Medora is inappropriate
since this case does not involve a "denial of all aid."
Burris' briefs are unacceptable.
If the issues raised by counsel are serious enough to warrant the Court's
consideration, then they are serious enough to require counsel to thoroughly
research and present them. In future cases, briefs which fail to apprise
the Court of applicable legal standards and which fail to supply citations
to basic authority will be returned to counsel and further briefing
will be required.
Equal protection of the
laws is guaranteed under both the United States and the Montana constitutions.
U.S. Const., amend IV, § 1; Mont. Const., art. II, § 4. In a general
sense the equal protection clauses of the two constitutions protect
persons against arbitrary and discriminatory state action. McKamey
v. State, 268 Mont. 137, 145, 885 P.2d 515, 521 (1994). Equal protection
does not preclude the classification and different treatment of persons
but does require, at minimum, that a classification have a rational
basis. State v. Sanders, 208 Mont. 283, 289, 676 P.2d 1312,
The right to workers' compensation
benefits is not a fundamental right, thus the minimal "rational relationship
test" of equal protection applies in analyzing the legislative classification
at issue in this case. Cottrill v. Cottrill Sodding Service,
229 Mont. 40, 43, 744 P.2d 895, 897 (1987); accord Eastman
v. Atlantic Richfield Co., 237 Mont. 332, 338, 777 P.2d 862, 865
(1989); Stratemeyer v. Lincoln County, 259 Mont. 147, 151,
855 P.2d 506, 509 (1993). That test requires the Court to determine
whether the classification at issue is rationally related to a legitimate
or proper government purpose. Cottrill, 229 Mont. at
43, 744 P.2d at 897; Eastman, 237 Mont. at 338, 777
P.2d at 865.
However, equal protection,
as the words suggest, applies to legislation which results in different
treatment of similarly situated persons. State ex rel. Zander v.
District Court, 180 Mont. 548, 556-57, 591 P.2d 656, 661 (1979).
Subject matter distinctions, as distinguished from class distinctions,
are not subject to equal protection scrutiny. Id. In Zander
the Montana Supreme Court, put it this way:
Determination or classification
of the subjects of legislation does not deny equal protection. If
all persons in the same class are treated alike, there is no violation
of equal protection. Here there is but one class and all persons within
that class are treated equally satisfying constitutional equal protection
Id. (citations omitted).
Zander involved an equal protection challenge to a statute
criminalizing marijuana cultivation. The defendant argued that tobacco
is as harmful as marijuana and that the legislature's failure to criminalize
tobacco cultivation therefore amounted to discrimination in violation
of the Equal Protection Clause. But the criminal statute applied equally
to all people, hence there was but one class of persons, all of whom
were treated equally, and there was no violation of the Equal Protection
The statutes involved in
this case are similar to the statute in Zander in that they
are based on distinctions in subject matter and do not distinguish between
or among classes of persons. All persons covered by the WCA are subject
to the exclusion regarding maintenance and palliative care. Persons
not covered by the WCA are not entitled to any benefits whatsoever,
thus are equally denied maintenance and palliative care benefits. Thus,
there is but one class of persons, all of whom are treated equally.
The statutes do not violate the equal protection clauses.
Although evading review
under equal protection, the statutes at issue herein are subject to
the rational relationship test under the due process clauses of the
United States and Montana constitutions. U.S. Const., amend. XIV, §
1; Mont. Const., art. II, § 17. In one writer's words,
[T]he standards for validity
under the due process and equal protection clauses are identical.
The difference in the
method of analysis under the due process and equal protection guarantees
relates only to whether or not the governmental act classifies persons.
. . . When the governmental action relates only to matters of economics
or general social welfare, the law need only rationally relate to
a legitimate governmental purpose. If the law does not classify individuals,
it will be subjected to the due process guarantee. However, if the
means the law employs to achieve its end is the classification of
persons for differing benefits or burdens, it will be tested under
the equal protection guarantee.
R. Rotunda & J. Nowak,
Treatise on Constitutional Law: Equal Protection, § 18.1 at 5-6 (2d
Due process, in its substantive
form, "bars arbitrary governmental actions regardless of the procedures
used to implement them, and serves as a check on oppressive governmental
action." Newville v. Department of Family Services, 267 Mont.
237, 249, 883 P.2d 793, 800 (1994). "[I]n order to satisfy guarantees
of substantive due process, a statute enacted by the legislature must
be reasonably related to a permissible legislative objective." Id.
at 250, 883 P.2d at 801 (citing Raisler v. Burlington Northern Ry.
Co., 219 Mont. 254, 263, 717 P.2d 535, 541 (1985)).
In determining the purpose
or object of a statute, the Court is not limited to those articulated
by the legislature, either in the statute itself or in legislative history,
but may consider any rational purpose which may have motivated the legislature
to enact the legislation. Stratemeyer, 259 Mont. at 152, 855
P.2d at 509. In this case, we need not look beyond the legislative history
of the statutes in question to find a legitimate, rational purpose for
the limitation on medical benefits.
The provisions at issue
herein were part of Senate Bill 347, enacted into law by the 1993 Legislature.
The minutes of both the Senate Committee on Labor and Employment Relations
and the House Select Committee on Workers' Compensation, which held
hearings on February 16, 1993 and March 10, 1993, respectively, reflect
that one of the purposes of S.B. 347 was to control medical costs.
The bill was sponsored by
Senator Harp. In his opening statement before the Senate committee,
the Senator stated that "SB 347 is built upon the principle of cost
containment . . . ." (Senate Minutes of 2/16/93 at 3.) Rick Hill, representing
the Governor's office, "stated that workers' compensation premiums are
increasing at a rate the Montana economy cannot afford." Id.
Pat Sweeney, then president of the State Compensation Insurance Fund,
[T]he State Fund spent
almost $37 million on medical expenses in fiscal year 1992. He stated
medical expenses account for over half of the 20% rate increase the
State Fund experienced at the beginning of fiscal year 1993. Mr. Sweeney
stated medical cost containment is essential to managing workers'
Id. Similar testimony
was given in the House committee hearings. (House Minutes, 3/10/93,
Supreme Court held that cost control over workers' compensation benefits
is a legitimate governmental purpose. Id. at 153, 855 P.2d
at 510. It specifically pointed out that in matters of economic regulation,
social and health issues, which by implication includes workers' compensation,
the legislature is in a much better position to make economic judgments
than a court. Id.
The constitutions of the
United States and the State of Montana do not mandate any specific level
of benefits for injured workers. In car terminology, they do not mandate
a Cadillac, or even a Chevy. In McClanathan v. Smith, 186 Mont.
56, 67-68, 606 P.2d 507, 513 (1980), the Montana Supreme Court said
with regard to equal protection:(3)
Perfection in making classifications
is neither possible nor necessary. Neither is mathematical nicety or
perfect equality. Rather, where the goals of a classification are legitimate,
and the classification is rationally related to the achievement of those
goals, the statute should be constitutionally upheld.
The legislative purpose
in this case -- cost control -- is a legitimate one. The provisions
which claimant attacks are reasonably calculated to cut medical costs.
They eliminate liability for certain medical services while preserving
essential medical services which assure that the claimant will be treated
until she reaches maximum medical improvement. The provisions do not
violate claimant's right to due process.
3. Cruel and Unusual
The claimant alleges in
her Notice of Appeal that the statutes at issue violate the prohibition
against cruel and unusual punishment. That prohibition is found in the
Eighth Amendment to the United States Constitution and Article II, Section
22 of the Montana Constitution.(4)
In her brief the claimant
devotes a one sentence paragraph to her cruel and unusual punishment
allegation, as follows:
law concepts were operative here, one could say without hesitation
that the rules/statutes relied on by Respondents and the options they
provide for Ruth clearly constitute an infliction of cruel and unusual
punishment for her temerity in getting injured on the job.
(Appellant's Opening Brief
at 5, emphasis added.) The "if" in the sentence is dispositive of her
argument. The prohibition against cruel and unusual punishment applies
to sentences and penalties imposed with respect to crimes. State
ex rel. Hardy v. State Board of Equalization, 133 Mont. 43, 46,
319 P.2d 1061, 1063 (1958). The prohibition deals exclusively with criminal
process and punishments and is not applicable in other contexts. Ingraham
v. Wright, 430 U.S. 651, 664 (1977); Palmer v. A.H. Robins
Co., Inc., 684 P.2d 187, 217 (Colo. 1984). It has no application
in the present case.
For the reasons set forth
in the foregoing discussion, IT IS HEREBY ORDERED AND ADJUDGED as follows:
1. Sections 39-71-704(1)(f)
and -116(13) and (16), MCA (1993), do not violate the claimant's rights
to equal protection of the laws and due process of law, nor do they
violate the constitutional prohibition against cruel and unusual punishment.
2. The Notice of Appeal in
this matter is dismissed with prejudice.
3. ThisJudgment is certified
as final for purposes of appeal.
DATED in Helena, Montana,
this 23rd day of October, 1996.
c: Mr. Don Edgar Burris
Ms. Susan C. Witte
Submitted: September 10, 1996
the hearing officer captioned his decision as Findings of Fact; Conclusions
of Law; and Final Order, the decision did not address any factual matters
and merely concluded that claimant was correct in her assertion that
the Department lacked jurisdiction over her constitutional challenges.
Burris' letter filed on April 11, 1996.
discussed previously, due process analysis is similar to equal protection
analysis. Thus, statements made with regard to equal protection analysis
may be applied in the due process context.
Eighth Amendment, provides, "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."
U.S. Const. amend. VIII. The Montana provision is identical except it
substitutes the word "or" for the word "nor". Mont. Const. art. II,