Michael Powell

Summary: Injured worker receiving 24-hour domiciliary care from his spouse challenged constitutionality of the limit on payments for 24-hour care by a family member established by section 39-71-1107(3), MCA (1995). He also sought to challenge the constitutionality of subsection (4) of the same statute, which governs domiciliary care by a family member necessary for a period of less than 24 hours a day.

Held: The WCC will not consider a constitutional challenge to subsection (4) of section 39-71-1107, MCA (1995) where claimant has no claim under that subsection. Objections to standing cannot be waived and may be considered sua sponte by the Court. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-1107, MCA (1995). The WCC will not consider a constitutional challenge to subsection (4) of section 39-71-1107, MCA (1995) where claimant has no claim under that subsection. Objections to standing cannot be waived and may be considered sua sponte by the Court. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Constitutions, Statutes, Regulations and Rules: Montana Constitution. The WCC will not consider a constitutional challenge to subsection (4) of section 39-71-1107, MCA (1995) where claimant has no claim under that subsection. Objections to standing cannot be waived and may be considered sua sponte by the Court. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Benefits: Domiciliary Care. Injured worker receiving 24-hour domiciliary care from his spouse challenged constitutionality of the limit on payments for 24-hour care by a family member established by section 39-71-1107(3), MCA (1995). He also sought to challenge the constitutionality of subsection (4) of the same statute, which governs domiciliary care by a family member necessary for a period of less than 24 hours a day. The WCC refused to consider a constitutional challenge to subsection (4) where claimant has no claim under that subsection. The Court found that subsection (3) does not violate federal or state guarantees of equal protection and substantive due process. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Constitutional Law: Constitutional Challenges: Burden. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Claimant did not carry his burden of proving section 39-71-1107, MCA (1995), relating to compensation for 24-hour domiciliary care provided by a family member, was unconstitutional.

Constitutional Law: Due Process: Substantive Due Process. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Constitutional Law: Due Process: Equal Protection. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.

Constitutional Law: Standing. The WCC will not consider a constitutional challenge to subsection (4) of section 39-71-1107, MCA (1995) where claimant has no claim under that subsection. Objections to standing cannot be waived and may be considered sua sponte by the Court.

¶1 The petitioner in this matter sought domiciliary care benefits. On the second day of trial the parties reached a settlement, agreeing that claimant's wife, Mary Powell, will be paid for providing domiciliary care for petitioner. The agreement calls for payment at the maximum rate permitted by section 39-71-1107(3), MCA (1995). On May 15, 1998, the parties reduced their agreement to a written stipulation for judgment. On May 28, 1998, judgment was entered pursuant to the stipulation.

¶2 Excepted from the Judgment, and reserved for future determination, was claimant's constitutional challenge to the statutory limit on payments for domiciliary care by a family member. That matter has since been briefed and is ready for decision.

¶3 Petitioner suffered a work-related head injury on October 7, 1995. Therefore, the 1995 version of the Workers' Compensation Act governs his benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

¶4 Petitioner challenges section 39-71-1107, MCA (1995), which governs domiciliary care benefits. The section provides:

¶5 Domiciliary care in this case is being provided by petitioner's wife, who is providing 24-hour care. Payment for her services is therefore limited by subsection (3) of section 39-71-1107, MCA.

¶6 Petitioner challenges the constitutionality of not only subsection (3) but subsection (4), as well. The Court will consider only his challenge to subsection (3) since he presently has no claim for benefits under subsection (4). He therefore lacks standing to challenge the latter subsection. "Objections to standing cannot be waived and may be raised by a court sua sponte." Standing may be raised at any time and may be raised sua sponte by the Court. Rieman v. Anderson, 282 Mont. 139, 144, 935 P.2d 1122, 1125 (1997)(citation omitted).

¶7 Petitioner challenges subsection (3) on two related grounds. First, he contends that the limitation on benefits for 24-hour care violates his right to equal protection of the laws under both the Montana and United States constitutions. U.S. Constitution, Amend. XIV; Mont. Const., Art. II, § 4. Second, he contends that the limitation is arbitrary and capricious, thereby violating his right to substantive due process. U. S. Constitution, Amend. XIV; Mont. Const., Art. II, § 17.

¶8 As an initial matter, petitioner must overcome the presumption that the statute in question is constitutional. Heisler v. Hines Motor Co., 282 Mont. 270, 279, 937 P.2d 45, 50 (1997) (citations omitted). To succeed in his challenge, he must persuade this Court beyond a reasonable doubt that the statue is unconstitutional. Id. at 279, 937 P.2d at 50.

¶9 "The equal protection provisions of the federal and state constitutions are similar and provide generally equivalent but independent protections." In re. CH, 210 Mont. 184, 198, 683 P.2d 931, 938 (1984). As a general matter, "[t]he principal purpose of the Equal Protection Clause is to ensure that citizens are not subject to arbitrary and discriminatory state action." Zempel v. Uninsured Employers' Fund, 282 Mont. 424, 428, 938 P.2d 658, 661 (1997). It does not preclude different treatment of different groups or classes of people so long as all persons within a group or class are treated the same:

Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). The first step of equal protection analysis "is to identify the classes involved and determine whether the classes are similarly situated." In re. CH, 210 Mont. at 198, 683 P.2d at 938.

¶10 Respondent argues that there is but a single class consisting of all workers' compensation claimants subject to the restriction. The Court disagrees. Section 39-71-1107, MCA, creates two classes of caregivers. One class consists of family members, who are subject to the limitation on compensation; the second consists of non-family care- givers not subject to the limitation on payments. Indirectly, the statute also creates two classes of claimants. The first, to which the petitioner herein belongs, consists of claimants whose domiciliary care is provided by family members subject to payment limitations. Potentially, it includes claimants who desire care by family members but cannot obtain it on account of the limitations on reimbursement. The second class consists of claimants whose care is provided by non-family members not subject to payment limitations.

¶11 Under the Equal Protection Clauses, classifications under the Workers' Compensation Act are subject to a rational basis test. That test requires only that the discriminatory classification bear a rational relationship to a legitimate governmental purpose. Heisler at 279, 937 P.2d at 50 (citing Stratemeyer v. Lincoln County, 259 Mont. 147, 151, 855 P.2d 506, 509 (1993)). The Montana Supreme Court has described the rational basis inquiry as follows:

Montana Stockgrowers Ass'n v. State Dept. of Revenue, 238 Mont. 113, 117-18, 777 P.2d 285, 288 (1989).

¶11 The substantive due process principles invoked by petitioner provide a similar protection by prohibiting arbitrary government action. Newville v. State Department of Family Services, 267 Mont. 237, 249, 883 P.2d 793, 800 (1994). The essence of substantive due process is similar to equal protection.

¶12 The question then is whether the limitation of benefits for 24-hour care by relatives is rationally related to a legitimate public purpose, or whether it arbitrarily discriminates against family caregivers and the beneficiaries of that care. In determining the purpose of the limitation, the Court is not bound by legislative history or statutory statements of purpose, rather it may consider any possible purpose the legislation may serve. As stated in Stratemeyer v. MACO Workers' Compensation Trust, 259 Mont. 147, 152, 855 P.2d 506, 509-10 (1993), "The purpose of the legislation does not have to appear on the face of the legislation or in the legislative history, but may be any possible purpose of which the court can conceive."

¶13 The respondent argues, and provides supporting quotations from legislative history, that a primary purpose of the limitation is cost containment. However, citing Heisler v. Hines Motor Co., 282 Mont. 270, 283, 937 P.2d 45, 52 (1997), respondent acknowledges that cost containment alone cannot justify unequal treatment. (Response to Petitioner's Brief on Constitutional Issues at 5.) It therefore argues that more than cost-cutting is at stake. Specifically, it argues:

¶14 While the Heisler Court said that cost-containment alone cannot justify disparate treatment, that statement was in the context of denying one class of claimants a right enjoyed by other similarly situated claimants. The right at stake was the right to freely choose a treating physician, which was denied only to claimants covered by the State Fund. In discussing a contention that cost-reduction was by itself sufficient to justify the discrimination, the Court said, "Discrimination, that is, offering services to some while excluding others for any arbitrary reason, will always result in lower costs." Heisler at 283. It is an oversimplification to say that cost-control may never by itself justify limitations placed on benefits. Such a broad principle would nullify legislation limiting payment for medications to the generic price and would indeed nullify all limitations on medical benefits. On the other hand, cost-containment alone cannot be used to discriminate among otherwise identically situated claimants.

¶15 In subjecting section 39-71-1107, MCA, to further scrutiny, it should be noted that the section distinguishes between skilled nursing care and unskilled care. Subsection (2) covers skilled nursing care, providing that where skilled nursing care, as defined in Title 37, chap. 8, is needed, it must be provided by a "licensed nurse." Title 37, chap. 8 regulates nursing care which may be performed only by licensed practical and registered nurses. Only where the level of care does not require a practical or registered nurse may a family member or non-licensed individual provide domiciliary care. § 39-71-1107(3) and (4), MCA.

¶16 The only payment limitation applicable to unskilled care is for care provided by family members. Id. The limitation in subsection (3) to payment of "no more than the daily statewide average medicaid reimbursement . . . for care in a nursing home" applies only to family members, thus cost savings accrue only where family members provide the care.

¶17 While equal protection principles do not require a precise or mathematical relationship between the means adopted by the legislature in achieving a public purpose, Gulbrandson v. Carey, 272 Mont. 494, 503, 901 P.2d 573, 579 (1995), "if the governmental purpose is to save money, it cannot be done on a wholly arbitrary basis." Arneson v. State By and Through Dept. of Admin., Teachers' Retirement Div. 262 Mont. 269, 275, 864 P.2d 1245, 1248 (1993). Thus, as in Heisler, to withstand equal protection scrutiny the limitation imposed under subsection (3) must be based on some rational distinction between the claimants and providers subject to the limitation and those who are not.

¶18 Though not articulated by respondent, there are cogent and logical reasons for limiting payments to family members. As evidenced by this case, as well as other domiciliary care cases filed in this Court in the last few years, the family member who typically provides care to a claimant is the claimant's spouse. The spouse, as in this case, typically resides with the claimant before the industrial injury and continues to do so afterward. Twenty-four hour care by a spouse, or other family member, is provided in the home where the spouse or other family member resides - where she or he eats, sleeps, fraternizes with family and friends, pursues hobbies, and relaxes. Some of the care needed by the claimant, for example meal preparation, shopping, and cleaning, may have been provided in whole or in part by the family member prior to the accident. As in this case, some of the care provided may be passive supervision which does not preclude the caretaker from carrying on many normal daily activities during the day or night. While the job performed by the family member may in some respects be identical to care provided by a non-family member, it also differs in these important respects. The differences justify treating the family member differently from a worker who provides care as a full-time job, who works away from home, and whose sole task is to care for and watch over a claimant.

¶19 I find the payment limitation set forth in section 39-71-1107(3), MCA (1993), is not arbitrary and capricious and that it is rationally related to legitimate legislative purposes. It does not violate the Equal Protection or Due Process Clauses of the United States or Montana Constitutions.

¶20 For the reasons set forth in the foregoing discussion, IT IS HEREBY ORDERED AND ADJUDGED that

¶21 1. Section 39-71-1107(3), MCA, does not violate the Equal Protection and Due Process clauses of the United States and Montana constitutions and that petitioner's constitutional challenge to the section is dismissed with prejudice.

¶22 2. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.

¶23 3. Any party to this dispute may have 20 days in which to request an amendment or reconsideration from this Decision and Judgment Denying Constitutional Challenge.