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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1996 MTWCC 51
COMPENSATION INSURANCE FUND/
Summary: Claimant, who suffers from a skin condition, filed injury claim with State Fund. Insurer denied the injury claim, but referred claimant for a panel evaluation pursuant to procedures of the Occupational Disease Act. The panel physician could not conclude her condition was occupational and the Department of Labor and Industry notified her the claim was not established. Claimant filed an appeal on constitutional grounds, which the Court treated as a petition for declaratory judgment.
Held: The medical panel provisions of the Occupational Disease Act, including the requirement that claimant pay for a second evaluation if she makes the request for such, do not violate due process, equal protection, her right to select her own treating physician, or her right to full redress. (Note: WCC was affirmed in Grooms v. Ponderosa Inn, 283 Mont. 459, 942 P.2d 699 (1997).)
This case comes to the Court by way of an appeal from an order of the Department of Labor and Industry (Department).
The appellant, Lindia Grooms (Grooms), underwent an occupational disease panel examination. Based on the report of the examining physician, on July 21, 1995, the Department entered an Order Referring Copy of Medical Reports to Parties. In that order the Department notified Grooms and the insurer, State Compensation Insurance Fund (State Fund), that:
Based on the attached report of the first examining physician, the Department's preliminary determination concerning the claimant's claim for occupational disease benefits is the claim would be denied and the claimant would not be entitled to receive benefits under the Occupational Disease Act.
The order went on to notify the parties that either of them could request a further examination by a second panel physician or they could request a hearing. Any second examination was to be paid for by the requesting party.
Grooms responded by requesting the Department to pay for a second examination. The Department declined. She then challenged the constitutionality of the medical panel statutes. She presented that challenge by way of a request for a hearing. However, she thereafter moved to dismiss her own petition on the ground that the Department did not have jurisdiction to consider constitutional issues. The Department's hearing officer agreed and dismissed the petition. This appeal followed.
The record on appeal consists of the Department file. That file includes the Department's Order Referring Copy of Medical Reports to Parties; a petition (in the form of a letter) with attached correspondence between Grooms' attorney and the Department; Claimant's Affidavit to Proceed in Forma Pauperis; miscellaneous correspondence regarding the proceeding; a notice of a prehearing conference; a prehearing conference outline; a motion to join the Department as a party; Grooms' motion to dismiss; responses thereto; and the Dismissal Order. No hearing was ever held. Thus, the Department file sets forth only procedural facts.
Through their briefs on appeal, Grooms and the State Fund have informed the Court of additional facts. Those facts are not essential to the decision in this case because the issues raised by Grooms concern the facial constitutionality of various statutes and the applicability of section 33-22-111, MCA. However, the factual recitations provide the context in which the challenges are brought and are therefore adopted by the Court as background information.
On October 20, 1994, Grooms filed a workers' compensation claim on account of some sort of allergic reaction or dermatitis. The State Fund characterizes it as a claim for "chemical poisoning." (State Fund's Reply to Appellant/claimant's Opening Brief at 2, hereinafter State Fund's Brief.) In any event, the State Fund denied liability under the Workers' Compensation Act (WCA) and requested the Department to schedule an examination of the claimant with a member of the Montana Occupational Disease Panel. The Department designated Dr. Stephen Behlmer, a Helena dermatologist, as the examining physician. Dr. Behlmer examined claimant and reported that she suffered from "atopic dermatitis, a condition which is largely hereditary and which has environmental components also." (Id.) He noted that household products such as soap and ammonia may trigger her condition and indicated that he could not determine whether her condition was aggravated by her work. ( Id.)
Based on Dr. Behlmer's report, the Department then issued its Order Referring Copy of Medical Reports to Parties. As noted earlier, the Department advised the parties of its preliminary determination, based on the report, that claimant did not suffer from an occupational disease and offered them the further options of requesting a second examination or a hearing.
Claimant responded by requesting a second examination. The Department designated Dr. Robert Neill to perform that examination. However, claimant balked at paying for the examination and requested that the Department do so. In connection with her request she submitted Claimant's Affidavit to Proceed in Forma Pauperis. (A copy is found in the Department file.) The Department denied her request and the second examination never took place.
Claimant then filed a request for hearing. In the petition, which is in the form of a letter, the claimant stated that she had notified the Legal Services Division of the Department of her contention that the occupational disease procedures are unconstitutional. The letter/petition then went on to state:
(November 15, 1995 Letter of Don Burris to Hearings Unit.)
Thereafter, claimant, through her attorney, filed a motion to dismiss her own petition. (Claimant's Motion to Dismiss and Brief in Support.) In the motion she stated, "The sole issue at bar is the constitutionality of 39-72-602, MCA, as it is applied to indigent claimants." Noting that the Department lacked jurisdiction over constitutional issues, she then moved to "dismiss so that the case may be resolved by the Supreme Court." (Id. at 2.) Presumably she anticipated she would have to stop along the way to present the issue initially to this Court.
The Department's hearing officer then dismissed the petition for lack of jurisdiction. (Dismissal Order.) This appeal followed.
This matter is more properly deemed a petition for declaratory judgment and not as an appeal. The only matter decided by the Department was its lack of jurisdiction. Claimant does not appeal from that decision, rather she requests the Court to consider matters within the Court's own original jurisdiction.
Claimant makes a broad spectrum attack on the occupational disease panel procedures. Those procedures are set forth in sections 39-72-602, - 608, -609, -610, -611, and 612, MCA, which provide in relevant part:
Claimant first argues that these statutes deny her due process because they permitted the State Fund to unilaterally determine that her claim should be processed under the ODA and thereby deprived her of an opportunity to be heard concerning her claim under the WCA. The contention has no merit. The workers' compensation claim was denied. Upon denial the claimant could have immediately requested mediation or petitioned the Court to ask it to determine that she suffered a compensable industrial accident, and she can still do so. § 39-71-2905, MCA; Brian Ostwald v. Plum Creek Manufacturing, WCC No. 9508-7376, Order Denying Motion for Summary Judgment, (December 5, 1995). Claimant's belief that the State Fund has limited "the procedure to a claim for OD" is simply wrong. (Appellant's Opening Brief at 5.)
Relying on section 33-22-111, MCA, she further argues that the procedures permitting the Department to select a panel physician deprive her of her right to select her treating physician. Section 33-22-111,MCA, provides in relevant part:
Panel examinations are in the nature of independent medical examinations and are for the purpose of ascertaining whether a worker suffers from an occupational disease. Claimant is not required to treat with a panel physician and is free to select another physician to treat her medical condition. Thus, her reliance on section 33-22-111, MCA, is misplaced.
Claimant next argues that her right to equal protection is violated because she was required to pay for the second examination, whereas she would not have to do so under the WCA. She cites section 39-71-605, MCA, for the latter proposition, and Shapiro v. Thompson, 394 U.S. 618, 633 (1969), for the proposition that "[t]he saving of welfare costs cannot justify an otherwise invidious classification." Shapiro involved a one-year residency prerequisite to eligibility for welfare benefits, creating two separate classes of potential recipients, one consisting of those who satisfied the residency requirement and who were therefore entitled to benefits if otherwise eligible, and the other consisting of otherwise eligible persons who had not resided in the state for a year and were therefore barred from receiving benefits. The Supreme Court decision rested in large part on the constitutional right to travel and move from state to state, an interest that can be overcome only by a compelling state interest.
As with her other arguments, claimant misapprehends the nature of the statutory provisions involved in this case. Section 39-71-605, MCA, which she cites as entitling her to free medical examination under the WCA, concerns independent medical examinations by physicians hired by and for the insurer. An occupational disease panel examination is different. It provides an impartial medical opinion by a physician designated by an impartial agency; thus, the examining physician is beholden to neither the insurer nor the claimant. Under the WCA a claimant is not entitled to such an impartial examination and cannot compel the insurer to seek an IME. Thus, under the WCA she must muster her own medical evidence at her own cost. Under the ODA she is entitled to at least one examination and may benefit from a favorable opinion. If the initial opinion, or for that matter a further panel opinion, is unfavorable, she is not bound by it and may seek out her own medical evidence to support her claim. Section 39-72-610(2), MCA, provides that "[t]he claimant or the insurer may present additional medical information in order to rebut the medical examination report of a panel member or a panel report." Thus, there is no invidious classification. Indeed, the Court has not been cited to any case which holds that a workers' compensation or occupational disease claimant must be provided with free medical examinations to enable her to muster proof for her claim.
Next, claimant argues that the Department's Order Referring Copy of Medical Reports to Parties effectively excluded her "from the only forum empowered to settle the issue involving interests of basic importance in society or fundamental rights." (Appellant's Opening Brief at 6.) She points specifically to the Department's stated intention to adopt Dr. Behlmer's opinion if no second opinion was requested.
Once again, claimant misapprehends the occupational disease process. Under section 39-72-611, MCA, claimant could have requested a hearing following the initial examination. The Department's Order Referring Copy of Medical Reports to Parties expressly advised her of that right. At any hearing she was entitled to present her own evidence, which the hearing officer would have to consider prior to reaching any final conclusion. § 39-72-610(2), MCA. Thus, contrary to her contention, an impartial forum for resolving her claim was immediately available to her. She was not required to request or pay for a second examination in order to access that forum. Thus, Ball v. Gee, 243 Mont. 406, 795 P.2d 82 (1990), which is cited by claimant and which held that an indigent cannot be required to deposit the amount of taxes as a prerequisite to challenging a tax sale of real property, is inapposite.
In conjunction with her argument that she is excluded from litigating her claim unless she orders and pays for a second panel examination, claimant also relies on equal protection principles requiring that a legislatively enacted classification must be rationally related to some legitimate governmental interest. She cites Goldberg v. Kelly, 397 U.S. 254 (1970), for the proposition that receipt of "welfare benefits," and presumably occupational disease benefits, is an important right, and Medora v. Colautti, 602 F.2d 1149, 1154 (3rds Cir. 1979), for the proposition that where there is disparate treatment involving "denial of all aid, the courts will more closely examine the rationality of the underlying classification." Medora involved state welfare regulations disqualifying certain otherwise eligible applicants from receiving benefits. The Court of Appeals found that the disqualification did not rationally further any legitimate governmental interest.
Initially, there may be some question as to whether workers' compensation and occupational disease benefits are properly characterized as social benefits similar in nature to welfare benefits. However, we need not consider the nature of the benefits or the possible equal protection implications based on that nature.
As with her other arguments, claimant misapprehends the statutes she challenges. Unlike Medora and other cited cases, claimant is not disqualified from seeking or receiving occupational disease benefits. She was entitled to a hearing and was entitled to muster her own evidence to support her claim. A second examination, and payment therefore, was not a prerequisite to her pursuing her claim. Equal protection principles prohibit discriminatory classifications which do not rationally further legitimate governmental objectives, they do not require the legislature to pay for, or order insurers to pay for, medical examinations to enable a claimant in a disputed liability case to develop evidence supporting her claim.
Finally, claimant has requested the Court to award her workers' compensation benefits. (Appellant's Opening Brief at 8.) That request is beyond the scope of her appeal. Moreover, she has presented no evidence in support of a claim for workers' compensation benefits.
1. The designation of medical panel physicians by the Department of Labor and Industry for purposes of determining whether a worker is suffering from an occupational disease does not violate a worker's right to choose her own treating physician.
2. The requirement that the party requesting a second examination by an occupational disease panel pay for such examination does not violate a worker's rights to equal protection and due process.
3. The claimant is not entitled to attorney fees, costs, a penalty or any other relief. Her petition is dismissed with prejudice.
4. This order and judgment is certified as final for purposes of appeal.
5. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this decision.
DATED in Helena, Montana, this 16th day of July, 1996.
c: Mr. Don Edgar Burris
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