a workers' compensation claim with the State Compensation Mutual
Insurance Fund (State Fund), her employer's workers' compensation insurer.
She alleged she was suffering from dermatitis, a skin allergy condition.
The State Fund denied liability under the Workers' Compensation Act
(WCA) and, pursuant to the Occupational Disease Act of Montana (ODA),
requested the Department of Labor and Industry (the Department) to schedule
an examination of Grooms by a member of the occupational disease medical
panel. Grooms objected to the first physician designated and the Department
subsequently designated Dr. Stephen Behlmer (Behlmer), a Helena dermatologist,
as the examining physician. Grooms did not pursue the workers' compensation
claim after the State Fund denied it.
Behlmer diagnosed Grooms as suffering from "atopic dermatitis,"
which is largely hereditary but which also has environmental components.
He stated that household products, such as soap and ammonia, may trigger
the condition and that he could not determine whether Grooms' condition
was aggravated by her work. Based on Behlmer's report, the Department
issued an "Order Referring Copy of Medical Reports To Parties"
(Order) which informed Grooms and the State Fund of its preliminary
determination that Grooms' claim would be denied and she would not be
entitled to occupational disease benefits. The Order also notified the
parties that either of them could request a second examination by a
medical panel physician, at their own expense, and that either party
could request a hearing. Grooms requested a second examination and the
Department scheduled it. Grooms then submitted an affidavit to proceed
in forma pauperis and requested the Department to pay for the second
examination. The Department denied Grooms' request and the second examination
did not take place. Grooms subsequently petitioned for a hearing with
the Department's hearings unit, advancing various constitutional challenges.
She then moved to dismiss her petition on the basis that the Department
did not have jurisdiction to determine her constitutional issues. The
Department agreed that it was without jurisdiction and dismissed the
the Department's dismissal order to the Workers' Compensation Court.
The Workers' Compensation Court deemed Grooms' action a petition for
declaratory judgment, rather than an appeal. Following consideration
of the parties'
briefs, the court concluded that (1) the statutes permitting the State
Fund to determine that a claim should be processed under the ODA did
not violate Grooms' due process rights; (2) the Department's designation
of an examining physician from the occupational disease panel for the
purpose of determining whether a claimant is suffering from an occupational
disease did not violate Grooms' right to choose her own treating physician;
(3) the requirement that a claimant requesting a second examination
by a panel physician pay for the examination did not violate Grooms'
right to equal protection; and (4) Grooms was not deprived of the right
to legal redress. The Workers' Compensation Court entered its order
and judgment dismissing Grooms' petition and Grooms appeals.
error with regard to the Workers' Compensation Court's legal
conclusions. We review the court's conclusions of law to determine whether
correct. Turjan v. Valley View Estates (1995), 272 Mont. 386, 390, 901
P.2d 76, 79
(citing Caekaert v. State Compensation Mutual Ins. Fund (1994), 268
Mont. 105, 111, 885 P.2d 495, 498).
1. Did the
Workers' Compensation Court err in concluding that Grooms' right to
due process was not violated when the State Fund determined that her
claim should be processed under the Occupational Disease Act of Montana?
in the Workers' Compensation Court--and argues on appeal--that
her right to due process was denied by the State Fund's unilateral determinations
that she had not suffered an "injury" as defined in the WCA
and that her claim should be processed pursuant to the ODA. According
to Grooms, the State Fund's decisions deprived her of the notice and
opportunity to be heard on her workers' compensation claim which due
Compensation Court concluded that, when the State Fund denied
Grooms' workers' compensation claim, she retained statutory rights to
request mediation of the dispute before a Department mediator and to
petition the Workers' Compensation Court to determine that she had suffered
a compensable injury. On that basis, it rejected Grooms' assertion that
the State Fund had effectively deprived her of a claim under the WCA
without affording her notice and an opportunity to be heard and concluded
that Grooms had not been deprived of her right to due process.
that the court erred as a matter of law. The only authorities she
advances, however, reiterate general due process concepts too well-established
to need repeating. Grooms cites to no authority under which the State
Fund itself would be required to hold a hearing in advance of denying
her workers' compensation claim. Nor does she address the Montana statutes
which clearly provide procedures under which workers' compensation claimants
can have their claims determined after denial by the insurer.
MCA, provides that, when a dispute arises concerning
benefits under the WCA, the parties involved in the dispute must bring
the matter before a Department mediator. In the event mediation does
not resolve the dispute, either party may petition the Workers' Compensation
Court for a resolution. Section 39-71-2401(1), MCA. Section 39-71-2905,
MCA, mirrors 39-71-2401(1), MCA, by providing that, after satisfying
the statutory dispute resolution requirements, either a claimant or
an insurer may petition the Workers' Compensation Court for a determination
of a dispute concerning benefits under the WCA.
Grooms did not
avail herself of the available statutory procedures for resolution
of her dispute with the State Fund over her asserted entitlement to
workers' compensation benefits; indeed, she took no further action on
her workers' compensation claim after the State Fund denied it. Nonetheless,
those statutory procedures were available to her and the State Fund's
decisions to deny her workers' compensation claim and to process it
pursuant to the ODA did not deprive her of the opportunity to be heard
on that claim. Grooms simply failed to take advantage of the due process
afforded her under the WCA. We hold, therefore, that the Workers' Compensation
Court correctly concluded that Grooms' right to due process was not
2. Did the
Workers' Compensation Court err in concluding that Grooms' right to
choose her treating physician was not violated by the statute permitting
the Department to select an occupational disease medical panel physician
to examine her for the purpose of determining whether she was suffering
from an occupational disease?
When the State
Fund denied Grooms' workers' compensation claim, it requested
the Department to schedule, pursuant to 39-72-602, MCA, an examination
of Grooms by a medical panel physician. The Department did so and Grooms
was examined by Behlmer. Grooms contended that the statutory procedures
for an examination by a panel physician deprived her of her right under
33-22-111, MCA, to select her own treating physician.
Compensation Court determined that the 33-22-111, MCA, right
to select a physician is limited to selection of a treating physician
and that examinations by panel physicians are in the nature of independent
medical examinations used only for the purpose of assessing whether
the claimant suffers from an occupational disease. The court further
determined that an ODA claimant is not required to undergo treatment
by the panel physician who conducts the examination. On that basis,
the Workers' Compensation Court concluded that the examination required
by 39-72-602(2)(a), MCA, did not infringe on Grooms' right to choose
her treating physician. We agree.
MCA, provides, in pertinent part, that
clearly provides an insured the freedom to choose a treating physician;
it does not require, however, that an insured be allowed to choose any
and all physicians who may be utilized during the determination of an
ODA claim. Section 39-72-602, MCA, on the other hand, authorizes the
Department to select a panel physician to independently examine the
claimant to assist in determining whether the claimant suffers from
an occupational disease. This examination is separate from, and in addition
to, any examination and treatment a claimant may choose to pursue. There
is no requirement in 39-72-602, MCA, that the claimant proceed with
treatment from the panel physician selected to conduct the examination.
argues that her right to choose a treating physician is violated by
operation of 39-72-602(2)(b), MCA, which provides that either the
insurer or the
claimant may request an additional examination by a second panel physician.
contends that, inherent in her right to choose her treating physician,
is the right to have her chosen physician suggest or designate a qualified
expert to conduct the second examination and that it is impermissible
to limit her selection to those physicians who are members of the occupational
disease medical panel. Grooms cites to Stordalen v. Ricci's Food Farm
(1993), 261 Mont. 256, 862 P.2d 393, for the proposition that the State
Fund cannot unreasonably deny a claimant's request to be examined by
a physician of her choice and argues that, as a result, the Department
also should not be able to deny her the choice of a physician for her
the Workers' Compensation Court determined that the State Fund
unreasonably denied Stordalen's request pursuant to Rule 24.29.1403(3),
ARM, for a neurological consultation with a physician of her choice;
the issue on appeal was whether the State Fund's denial of the request
was unreasonable for purposes of imposing a penalty and attorney fees.
Stordalen, 862 P.2d at 394-95. Stordalen involved neither 39-72-602(2)(b),
MCA, nor an ODA examination by a medical panel physician at the Department's
request. Thus, it has no application to the case presently before us.
We hold that
the Workers' Compensation Court correctly concluded that Grooms'
right to choose her treating physician was not violated by the statute
Department to select a medical panel physician to examine her for the
determining if she was suffering from an occupational disease.
3. Did the
Workers' Compensation Court err in concluding that Grooms' right
to equal protection of the laws was not violated by the statutory requirement
claimant requesting a second examination by a panel physician pay for
Compensation Court determined that Grooms' ability to seek or
receive benefits under the ODA was not impeded by the requirement that
she pay for a second examination if she requested one. The court noted
that Grooms was entitled to one examination under the ODA for which
she was not required to pay and that she was also entitled to a hearing
on her claim before the Department at which she could present her own
evidence to support her claim. The Workers' Compensation Court concluded
that a second examination, at Grooms' expense, was not a prerequisite
to pursuit of Grooms' claim and, therefore, the requirement that she
pay for a second examination if she requested one did not violate equal
in this regard appears to be twofold. First, she contends that
requiring her to pay for the second examination she requested under
the ODA violates equal protection because she would not have been required
to pay for such an examination had her claim remained under the WCA.
Second, Grooms contends that 39-72-602, MCA, violates equal protection
because it requires a mandatory physical examination without providing
for a waiver of the costs of the examination for an indigent claimant.
enactments are presumed to be constitutional. Heisler v. Hines Motor
Co. (Mont. 1997), 937 P.2d 45, 50, 54 St.Rep. 345, 348 (citations omitted).
The party challenging a statute bears the burden of proving its unconstitutionality
beyond a reasonable doubt and, if any doubt exists, it must be resolved
in favor of the statute. Heisler, 937 P.2d at 50.
The equal protection
clauses of the Fourteenth Amendment to the United States
Constitution and Article II, Section 4 of the Montana Constitution require
that all persons be treated alike under like circumstances. Heisler,
937 P.2d at 50 (citations omitted).
We apply the
rational relationship test to equal protection challenges to workers'
compensation statutes. Heisler, 937 P.2d at 50 (quoting Stratemeyer
v. Lincoln County (1993), 259 Mont. 147, 151, 855 P.2d 506, 509 (citation
omitted)). In order to pass the "rational relationship" or
"rational basis" test, a challenged legislative enactment
" 'must implicate legitimate goals, and the means chosen by the
legislature must bear a rational relationship to those goals.' "
Heisler, 937 P.2d at 50 (quoting Lyng v. Automobile Workers (1988),
485 U.S. 360, 375, 108 S.Ct. 1184, 1194, 99 L.Ed.2d 380, 394 (Marshall,
J., dissenting)). Grooms' equal protection challenges to certain ODA
statutes and procedures are premised on the rational basis test.
argues that her equal protection guarantees are infringed by the
requirement that, if she requests a second examination pursuant to
39-72-602(2)(b), MCA, she must pay the costs of that examination, whereas
if her claim had proceeded under the WCA, 39-71-605, MCA, would require
the insurer or the Department to pay those costs. Grooms misreads
Section 39-71-605(1)(a), MCA, provides that an insurer or the Department
require a workers' compensation claimant submit to physical examinations
from time to time at the insurer's or Department's cost. It does not
authorize a workers' compensation claimant to request and obtain an
examination and require the insurer to pay for it.
Department may require an independent examination of a workers'
compensation claimant on the request of either the claimant or the insurer.
Section 39-71-605(2), MCA. In such a case, the party requesting the
examination must pay the cost of the examination. Section 39-71-605(2),
MCA. Thus, 39-71-605, MCA, does not allow a workers' compensation
claimant to request and obtain an examination at the insurer's expense.
As a result, no disparate treatment of claimants exists between the
WCA and the ODA in this regard and the premise underlying this portion
of Grooms' equal protection argument fails.
argues that the ODA violates equal protection by requiring a
mandatory physical examination without providing for a waiver of costs
examinations for indigent claimants. On this basis, she contends that
indigent claimants, as a class, are discriminated against under the
ODA. Again, however, Grooms mischaracterizes the controlling statute
and, as a result, the premise underlying this portion of her equal protection
argument also fails.
When an insurer
has not accepted liability for an ODA claim, the Department must
designate a medical panel physician to examine the claimant and determine
whether she is suffering from an occupational disease. Section 39-72-602(2)(a),
MCA. The expense of this examination is borne by the insurer. Section
39-72-608, MCA. Thus, while it is mandatory that an ODA claimant submit
to an examination for the purpose of assessing the compensability of
the claim, the claimant is not required to pay for the examination.
In the event
either the claimant or the insurer is dissatisfied with the result of
examination, that party may request a second examination. Section 39-72-602(2),
MCA. The party requesting the second examination must pay for it. Section
39-72-608, MCA. Sections 39-72-602 and 39-72-608, MCA, simply do not
mandate an examination at the claimant's expense under any circumstance.
While a claimant may be required to submit to two physical examinations
thereunder, the claimant never pays for the first and pays for the second
only when she initiates the request for it. When a claimant requests
the examination, that examination cannot be characterized as a mandatory
examination. As a result, the ODA does not require an examination at
the claimant's cost which could violate equal protection.
We hold that
the Workers' Compensation Court correctly concluded that Grooms'
right to equal protection of the laws was not violated by the statutory
requirement that the party requesting a second examination by an occupational
disease panel physician pay for the examination.
4. Did the
Workers' Compensation Court err in concluding that Grooms was not
deprived of the right to legal redress?
Compensation Court rejected Grooms' argument that her asserted
inability to pay for a second examination by a medical panel physician
denied her access to a forum for resolving her ODA claim in violation
of Article II, Section 16 of the Montana Constitution. Observing that
Grooms could have requested, and obtained, a hearing before the Department
pursuant to 39-72-611, MCA, at which she would have been entitled
to present evidence, the Workers' Compensation Court concluded that
Grooms had not been precluded from litigating her ODA claim on the basis
of her asserted inability to pay for a second examination, or on any
Order stated that, on the basis of the examining physician's
report, the Department's determination would be to deny Grooms' ODA
Order also outlined the parties' rights to request a second examination
pursuant to 39-72-602, MCA, and to request a hearing pursuant to
39-72-611, MCA, before the Department issued its final determination
on Grooms' entitlement to occupational disease benefits.
on appeal that she could not afford to pay for a second
examination to rebut the findings of the physician who conducted the
first examination. As a result, she asserts that she was effectively
denied the ability to pursue her claim.
the purpose of the second examination available under 39-72-602(2),
MCA, and ignores her statutory rights under the ODA. Under 39-72-602(2),
MCA, the Department selects a medical panel physician to
conduct an independent examination of an ODA claimant; the physician
is not affiliated with either the insurer or the claimant. A second
examination under 39-72-602(2), MCA, is an additional independent
examination by a physician not affiliated with either party. It is not
conducted to provide the party requesting the examination with evidence
to "rebut" the findings of the first examining physician,
but rather to provide a second objective report regarding a claimant's
physical condition vis-a-vis entitlement to occupational disease benefits.
39-72-611, MCA, permits an ODA claimant to request a hearing on
her claim before the Department issues its final decision; if a hearing
is requested, it must be held. Sections 39-72-611 and 39-72-612, MCA.
Entitlement to a hearing is unqualified; that is, a second examination,
at the expense of the requesting party, is not a prerequisite to entitlement
to a hearing. Thus, even assuming Grooms could not afford a second examination
pursuant to 39-72-602(2)(b), MCA, she could have requested a hearing
and presented evidence such as the testimony and records of her treating
physician in support of her asserted entitlement to occupational disease
did not request a hearing does not negate the availability of the hearing
and the opportunity to establish the compensability of her occupational
disease claim. In essence, Grooms' argument here is that her right to
legal redress requires the State Fund--and, indirectly, her employer--or
the Department--and, indirectly, Montana taxpayers--to finance her efforts
to establish her occupational disease claim. She cites to no authority
for such a proposition and we know of none.
We hold that the Workers' Compensation Court did not err in concluding
Grooms was not deprived of her right to full legal redress by the application
of 39-72-608, MCA.
/S/ KARLA M. GRAY
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART