Summary
discussing due process implications of DIME procedure in context of challenges to ATP's MMI and impairment determinations
Summary of this case from In re Haakinson, W.C. NoOpinion
No. 01SA399.
April 7, 2003.
U.S. Constitution — Procedural Due Process — Colorado's Workers' Compensation Act
The supreme court holds that a fee requirement mandated by certain provisions of Colorado's Workers' Compensation Act and its implementing regulation violates the due process guarantee of the U.S. Constitution as applied to indigent, workers' compensation claimants. Under the statutory scheme, after a determination that the worker suffered an on-the-job injury, the employer-selected physician makes the initial decision to terminate temporary disability benefits and medical treatment. To challenge such a decision, an injured worker must pay a $675 fee to obtain an independent medical examination. Once the injured worker receives an independent examination, he can appeal adverse termination decisions of the employer-selected physician to an administrative law judge, then to the Industrial Claim Appeals Office and ultimately to the courts. However, for claimants who are indigent and have no way to pay, the upfront fee precludes administrative or judicial review of premature termination decisions of their statutorily-created property right to temporary disability benefits and medical treatment. Because the $675 mandatory fee denies indigent claimants any opportunity to be heard at a meaningful time and in a meaningful manner prior to the termination of their temporary benefits and treatment, the fee requirement is unconstitutional as applied to indigent claimants.
Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Eric Rothaus, Assistant Attorney General, State Services Section, Denver, Colorado, Attorneys for Defendants-Appellants.
Wilcox Ogden, P.C., Ralph Ogden, Denver, Colorado Goldstein Dodge, Shelley P. Dodge, Denver, Colorado, Attorneys for Plaintiff-Appellee.
I. INTRODUCTION
In this case, we determine the constitutionality of a fee requirement mandated by certain provisions of Colorado's Workers' Compensation Act and its implementing regulations. Under the pertinent statutory sections and implementing workers' compensation rule, before an injured worker can challenge the termination of his temporary disability benefits and medical treatment, he must pay a $675 fee to obtain a Division Independent Medical Examination. We hold that such a fee provision, which requires an indigent worker to prepay a fee before he can obtain either administrative or judicial review of an adverse decision of the employer-selected treating physician, violates due process of law guarantees.
Martin Smith, an injured indigent claimant, filed suit against the Director of the Division of Workers' Compensation and the Examiners of the Industrial Claim Appeals Office in their official capacities under 42 U.S.C. § 1983, claiming that the statutory scheme was unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment. Smith alleged that his inability to pay the fee prevented him from challenging the termination of his temporary total disability benefits and medical treatment. The district court certified a class of present and future injured indigent claimants and struck down the fee provisions as unconstitutional on due process and equal protection grounds as applied to the certified class. The defendants appealed the district court's ruling directly to this court.
Although the fee requirement found in sections 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5), 3 C.R.S. (2002) and 7 C.C.R. 1101-3 ("Division Rule XIV(L)(4)") is valid on its face, it is unconstitutional as applied to the particular class of injured indigent claimants. For such claimants, the statutory scheme prevents any administrative or judicial review of the termination of their right to temporary disability benefits and medical treatment, based solely on their inability to pay the fee. We hold that the fee requirement deprives injured indigent claimants of their property interests without due process as mandated by the Fourteenth Amendment. Because our holding disposes of this case, we do not reach the question of whether this fee requirement also violates the equal protection clause of the Fourteenth Amendment.
Our holding impacts and refers only to those claimants who are indigent, as determined by a neutral decision-maker pursuant to the criteria set forth in Chief Justice Directive 98-01.
Thus, we affirm the judgment of the district court on the due process issue and return this case back to it for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
On November 8, 1991, Marvin Smith injured his back while in the scope and course of his employment. Smith's exclusive remedy for those injuries was under Colorado's Workers' Compensation Act ("Act"). See §§ 8-40-101 to 8-47-209, 3 C.R.S. (2002).
Following Smith's injuries, Smith's employer and its insurance carrier filed a general admission of liability in which they admitted full responsibility for his injuries. As a result, Smith received temporary total disability benefits ("TTD") and medical treatment, as provided under the Act. See §§ 8-42-105, 8-42-106, 8-42-101(1)(a). Smith's pre-injury weekly wage was $458.09 and his temporary total disability rate was $305.39, which was two-thirds of his average weekly wage.
Pursuant to its statutory right, the employer's insurance company selected the physician who treated Smith.
§ 8-43-404(5)(a). Smith had no choice in selecting this doctor.
Thereafter, the employer and its insurance carrier filed a final admission of liability in 1992. This final admission stated that the employer-selected, treating physician determined
that Smith had reached maximum medical improvement ("MMI") and that his permanent medical impairment rating was five percent of the whole person. As a result, Smith's employer reduced his disability benefits — now permanent benefits — to a rate of $120 a week. The insurance carrier also denied any responsibility for post-MMI treatment for Smith's back injuries.
The Act defines maximum medical improvement as "the point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition." § 8-40-201(11.5).
Smith filed a timely objection to the final admission of liability which preserved his right to challenge all matters set forth in the admission, including the employer-selected physician's determination of MMI and his impairment rating. At that time, Smith did not request a Division Independent Medical Examination ("DIME"), which was a prerequisite to any administrative hearing challenging the findings of the employer-selected physician. See §§ 8-42-107(8)(b)(II); 8-42-107(8)(c). The statutory provisions and the implementing regulation mandated at the time that the party challenging the treating physician's determination pay a $450 fee for the DIME.
The relevant provisions of the statutory scheme are as follows:
If either party disputes a determination by an authorized treating physician on the question of whether the injured worker has or has not reached maximum medical improvement, an independent medical examiner may be selected in accordance with section 8-42-107.2.
§ 8-42-107(8)(b)(II).
If either party disputes the authorized treating physician's finding of medical impairment, including a finding that there is no permanent medical impairment, the parties may select an independent medical examiner in accordance with section 8-42-107.2. The cost of such independent medical examination shall be borne by the requesting party.
§ 8-42-107(8)(c).
The requesting party shall advance the full cost of the independent medical examination to the [independent medical examiner] at least ten days before the appointed time for the examination.
§ 8-42-107.2(5).
The physician performing the IME shall be prepaid a total fee of $675.00 for each IME by the requesting party.
7 C.C.R. 1101-3, Division Rule XIV(L)(4)(a). For Smith, the fee was $450. The Division of Workers' Compensation has since raised the fee to $675.
In 1999, Smith filed a motion with the Director of the Division of Workers' Compensation. In his motion, Smith requested that the Director find that he was indigent and therefore unable to pay the required fee for the DIME. Without a DIME, Smith could not challenge the employer-selected physician's determination of MMI and medical impairment rating. An administrative law judge denied the motion.
At the time of Smith's injuries, there was no statutory deadline for requesting a DIME if the injured worker filed an objection to a final admission within sixty days. See § 8-43-203(2)(b), 3 C.R.S. (1997). Section 8-42-107.2(2)(b) now states that a claimant has only thirty days from the date the final admission was mailed in which to challenge the determinations of the employer-selected physician. The Division issued Rule IV(L)(3) to protect the timeliness of claims like Smith's that would otherwise be time-barred under the new statute. 7 C.C.R. 1101-3.
In 2000, Smith filed an application for a hearing with the Division of Administrative Hearings. Smith again requested a ruling that he was indigent and that either the Division or the insurance carrier pay for the cost of the DIME because he was unable to pay for it.
Upon reviewing Smith's application, an administrative law judge determined that Smith was indigent pursuant to Chief Justice Directive 98-01. However, the judge also determined that he lacked authority to waive the DIME fee or otherwise assess it. The judge ordered the denial and dismissal of Smith's request but noted that his ruling might deny, "in the constitutional sense," indigent claimants "a full opportunity to develop and litigate the issue of permanent disability." Smith appealed this ruling to the Industrial Claim Appeals Office but his claim was dismissed as premature.
Smith brought this action in the district court pursuant to 42 U.S.C. § 1983, claiming that the DIME fee requirement found in the statutory and regulatory provisions of the Act violated the constitutional rights of indigent workers' compensation claimants to due process and equal protection. Smith argued that the fee requirement unconstitutionally deprived indigent claimants of a hearing to challenge the MMI and medical impairment decisions of their employer-selected treating physicians.
The district court certified the case as a class action pursuant to C.R.C.P. 23(a) and (b)(2) and described the class as those entitled to compensation and who were found to be indigent. On cross-motions for summary judgment, the court held that the fee requirement found in sections 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5) and Division Rule XIV(L)(4) were unconstitutional as applied to the class of indigent workers on two grounds.
The district court defined the class as follows:
All current and future workers' compensation claimants who have been or will be discharged from care by their employer selected treating physician because they have reached maximum medical improvement (MMI), whether or not they have been given a permanent impairment rating; who seek a waiver of the IME fee imposed by C.R.S. §§ 8-42-107 and 8-42-107.2, in order to contest either the date of MMI or the maximum medical impairment rating; and who are indigent.
(emphasis added). The defendants argue that certification of the class of indigent claimants under C.R.C.P. 23(a) and (2)(b) would result in unnecessary expense and unduly burden the judicial process. In particular, they argue that class certification is unnecessary because if the statutory provisions at issue are declared unconstitutional, they will be of no effect and the State may no longer enforce the offending provisions. We disagree. The district court properly found that all requirements of 23(a) were satisfied as to the class in its April 24, 2001 Order. In addition, class certification is proper under 23(b)(2) because Smith, as the representative plaintiff, is seeking a judicial declaration that the statutory provisions and implementing regulation are unconstitutional.
The district court rejected the defendants' argument that the court need not reach the constitutional issues raised by the plaintiff because under section 8-43-502(3), the Director has the authority and discretion to charge the cost of the DIME to the employer or the insurer when the Director deems that a DIME is necessary to assist in resolving an issue of medical fact or opinion. Defendants argued that if the challenged sections are read in conjunction with section 8-43-502(3), the constitutional issues could be avoided. The court disagreed and held that defendants' argument would require disregarding the plain language of the challenged sections mandating that the claimant prepay the fee to obtain a DIME. The court also noted that such a reading of the statute was inconsistent with a January 2001 Order in which the Director stated that she lacked authority to order the insurance carrier or the employer to pay for a claimant-requested DIME.
First, the district court held that the plaintiff class, as recipients of statutorily created temporary disability benefits, had a property interest in the continued receipt of those benefits. Because such benefits terminated upon the employer-selected physician's determination of MMI, there were due process considerations applicable to the procedures surrounding the MMI determination. The district court concluded that the fee provisions violated the due process clause of the Fourteenth Amendment by requiring indigent claimants to pay a fee to obtain a DIME as a jurisdictional prerequisite to any opportunity to be heard on the employer-selected treating physician's determinations of MMI and permanent impairment ratings.
Second, the district court applied a rational basis test and sustained Smith's equal protection challenge. The district court held that while the statutory requirement for a DIME and the imposition of the cost of a DIME on the requesting party were rationally related to the state interest in the delivery of disability and medical benefits to injured workers at a reasonable cost to employers without the necessity of litigation, see § 8-40-102(1), there was no legitimate state interest in pursuing those goals at the cost of denying the plaintiff class any opportunity to be heard as occurs under the statutory scheme as a whole.
In response to the district court's order invalidating the fee provisions, the Division issued a new rule. See 7 C.C.R. 1101-3, Division Rule XIV(P)(2)(b). The Rule requires that for claimants adjudicated indigent, the employer or the employer's insurance carrier must advance the cost of the DIME. However, the cost must be reimbursed by the claimant when a final order is issued, a final admission of liability is uncontested, or the parties settle the case on a full and final basis. See Division Rule XIV(P)(2)(d).
The district court relied on the Division's new rule to deny Smith's motion for a permanent injunction, filed shortly after the court found the original fee provisions unconstitutional. The district court denied injunctive relief because Smith failed to establish the requisite degree of impending harm. Neither the constitutionality of the new rule nor the district court's denial of Smith's motion for injunctive relief has been appealed to us and therefore we express no opinion on either issue.
The state appealed the district's court judgment declaring the fee provisions unconstitutional as to the class of indigent claimants directly to this court. We now affirm the district court and hold that the fee provisions are unconstitutional under the due process clause of the Fourteenth Amendment. We do not reach the equal protection issue because our holding invalidating the fee provisions on due process grounds disposes of this case.
III. COLORADO'S WORKERS' COMPENSATION ACT
To explain the full ramifications of the fee requirement and how it operates to deny a particular class of claimants — those indigent claimants unable to pay the $675 fee for a DIME — their constitutional rights to due process, we provide a brief overview of Colorado's Workers' Compensation Act.
The General Assembly created the substantive right to workers' compensation. See Allison v. Indus. Claim Appeals Office, 884 P.2d 1113, 1119 (Colo. 1994). The substantive right to workers' compensation replaced an injured worker's common law right to sue. Id. Colorado's Workers' Compensation Act, §§ 8-40-101 to 8-47-209, is a mutual renunciation of common law tort claims and defenses in favor of a no-fault system and reduced but guaranteed benefits. Kandt v. Evans, 645 P.2d 1300, 1302 (Colo. 1982); see also 1 Arthur Larson and Lex Larson, Larson's Workers' Compensation Law § 1.01 (2002). In essence, the Act is the exclusive remedy for workers injured within the scope and course of their employment. See § 8-41-102.
Following an injury covered by the Act, the insurance carrier or a self-insured employer must file and serve on the worker either a general admission of liability, in which it admits liability for the injury, or a notice of contest. § 8-43-203(1)(a); Division Rule IV(A). When such a general admission is served, the employer must compensate the injured employee in two ways. First, the employer must provide the employee with temporary total disability benefits, which are designed to be a partial substitute for lost wages or impaired earning capacity arising from a compensable injury. §§ 8-42-105; see also Safeway Stores, Inc. v. Husson, 732 P.2d 1244, 1245 (Colo.App. 1986). Second, the employer must provide the employee with medical treatment to cure and to relieve the employee from the effects of the injury. See § 8-42-101(1)(a). Although the Act obligates the employer to provide treatment, the employer and its insurer have the statutory right to designate the worker's authorized treating physician if they do so at the time the injury is first reported. § 8-43-404(5)(a).
TTD benefits are calculated so that an employer pays the employee two-thirds of his average weekly wage, up to a maximum rate of ninety-one percent of the state average weekly wage in effect on the date of the injury. See § 8-42-105(1).
The authorized treating physician for the injured worker, selected by the employer, plays a critical role in determining how long the worker will receive temporary disability benefits and medical treatment. In particular, the worker's temporary total disability benefits and medical treatment automatically terminate if the treating physician determines that the claimant has reached MMI. See §§ 8-42-105(3), 8-40-201(11.5). Thus, if the injured worker's treating physician determines that the worker has reached MMI, the worker's temporary disability benefits and medical treatment end immediately.
The treating physician may determine that post-MMI treatment is necessary to maintain MMI or to alleviate pain and suffering. Grover v. Indus. Comm., 759 P.2d 705, 710 (Colo. 1988). However, Smith's treating physician denied post-MMI treatment.
Once the treating physician determines that the injured worker has reached MMI, the physician is required to determine whether the worker has sustained a permanent medical impairment, and if so, to what degree. § 8-42-107. The treating physician may determine that there is a non-scheduled impairment or that there is no permanent impairment to an injured body part which is not on the schedule. In some instances, the treating physician determines that the worker suffered an impairment, but it was not caused by an on-the-job injury. Egan v. Indus. Claim Appeals Office, 971 P.2d 664, 665 (Colo.App. 1998) ("Whether a particular component of the claimant's overall medical impairment was caused by the industrial injury is an inherent part of the rating process. . . .").
Scheduled impairments include injuries to the hand, arm, foot, leg, loss of vision, and deafness. Duran v. Indus. Claim Appeals Office, 883 P.2d 477, 479 (Colo. 1994).
The consequences of the worker's impairment rating are financially significant because it determines how permanent medical impairment benefits are calculated. See § 8-42-107(8)(e);Colorado AFL-CIO v. Donlon, 914 P.2d 396, 401 (Colo.App. 1995). Such permanent benefits are calculated by multiplying the percentage impairment rating by a statutory age factor and by 400 weeks and the temporary total disability rate. Permanent benefits are currently paid on a weekly basis at the minimum rate of $150 and the maximum rate of fifty percent of the state average weekly wage. § 8-42-107(8)(d). The maximum permanent rate may thus be less than the worker was receiving in weekly temporary total disability benefits.
The only way for an injured worker to challenge the treating physician's findings — including MMI, the availability of post-MMI treatment, degree of non-scheduled impairments, and whether the impairment was caused by an on-the-job injury — is to pay $675 for a DIME. §§ 8-42-107(8)(b)(II); 8-42-107(8)(c); 8-42-107.2(5), Division Rule XIV(L)(4). Under the statutory scheme and the implementing regulation, payment for a DIME is a mandatory, jurisdictional prerequisite to challenge the termination of temporary disability benefits and medical treatment in a hearing before an administrative law judge. See Story v. Indus. Appeal Claims Office, 910 P.2d 80, 82 (Colo.App. 1995);Egan, 971 P.2d at 665. There is no provision in the Act which allows this cost to be waived or shifted to the insurer for any reason.
Section 8-43-502(3) concerning the utilization review process does not imply such a waiver or allow a shifting of the fee from the claimant to the employer. The utilization review process is designed to address treatment disputes, not the treating physician's determination of MMI or degree of impairment.See § 8-43-501(1); Colorado Comp. Ins. Auth. v. Nofio, 886 P.2d 714, 716-17 (Colo. 1994). Thus, like the district court, we reject defendants' argument that section 8-43-502(3) can be read so as to avoid the constitutional issues presented by the fee requirement found in sections 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5) and Division Rule XIV(L)(4).
Thus, indigent claimants who cannot afford the fee will never obtain the benefit of an independent evaluation of their medical condition or, as a result, a determination of whether the termination of their temporary benefits and medical treatment was appropriate. Indeed, the General Assembly created the DIME system within the statutory scheme because of the potential for treating physicians to be biased in favor of the employer and the insurer.See Colorado AFL-CIO, 914 P.2d at 402.
The Division's statistics tracking claimants who challenged their MMI rating with a DIME establish this potential for bias. During 1999, 749 out of 2501 applications, or twenty-nine percent, resulted in reversal of the treating physician's determination. A similar reversal rate occurred in 2000, where the number of reversals was 654 out of 2056 applications, or thirty-one percent. This means that approximately three out of ten injured workers, or thirty out of a hundred, have had temporary disability benefits and medical treatment terminated prematurely and inaccurately by employer-selected treating physicians.
Those claimants with the ability to pay the mandatory fee ($675) possess the opportunity to challenge the findings of the treating physician with a DIME in a hearing before an administrative law judge, while those like the certified class do not. The consequences of a DIME are considerable. The independent medical examiner's opinions must be accorded "deference" at the administrative hearing by the administrative law judge. The DIME's findings can only be rejected by the administrative law judge if the challenging party proves them inaccurate by "clear and convincing evidence."
§§ 8-42-107(8)(b)(III), 8-42-107(8)(c). Paying for a DIME enables the worker to challenge the accuracy of the treating physician's ratings and treatment recommendation not only before an administrative law judge, but also to appeal the results of this evidentiary hearing to the Industrial Claim Appeals Office, see § 8-43-301(8), and ultimately to the court of appeals. See § 8-43-307.
Unlike those claimants who can pay the fee, those who cannot because they are indigent possess no statutory process to challenge the accuracy of the treating physician's determinations by hearing and appeals to the Industrial Claim Appeals Office and the court of appeals. Thus, as a direct consequence of their inability to pay, indigent claimants are not afforded the opportunity to challenge the denial of their temporary disability benefits and medical treatment before an administrative law judge, the Industrial Claim Appeals Office or the courts.
IV. PROCEDURAL DUE PROCESS
Having described the relevant provisions of the Workers' Compensation Act, we discuss Smith's claim that the fee requirement found in sections 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5), and Division Rule XIV(L)(4) violate the due process clause.
Procedural due process imposes constraints on governmental decisions which deprive individuals of property interests within the meaning of the Due Process Clause of the Fourteenth Amendment.Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To decide whether the fee requirement in the Act and the implementing regulation violates indigent claimants' constitutional guarantees to procedural due process, we must determine whether indigent claimants possess property interests protected by the Due Process Clause, and if so, whether the fee requirement unconstitutionally deprives this particular group of claimants of their property interests.
A. Indigent Claimants, Like All Workers' Compensation Claimants, Have Statutorily Created Property Interests In The Continued Receipt Of Temporary Disability Benefits And Medical Treatment
Property interests, protected by the Constitution, are created and defined by "existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). The United States Supreme Court has found property interests in the continued receipt of government benefits when they are created and defined by statute. See Goldberg v. Kelly, 397 U.S. 254, 261-62 (1970) (welfare recipients have a property interest in welfare payments that was grounded in the statute defining their eligibility); Mathews, 424 U.S. at 332 (interest of an individual in continued receipt of social security disability benefits is a statutorily created property right); Walters v. Nat'l Assoc. of Radiation Survivors, 473 U.S. 305, 307, 320, 332 (1985) (interest of veterans in continued receipt of service-connected death and disability benefits is a statutorily created property interest).
Here, the Workers' Compensation Act creates and defines such property interests for injured workers in Colorado. The General Assembly created the substantive right to workers' compensation.See Allison, 884 P.2d at 1119. The substantive right to workers' compensation is a constitutionally protected property interest. Id.; Donn v. Indus. Claim Appeals Office, 865 P.2d 873, 875 (Colo.App. 1993); Colorado Comp. Ins. Auth. v. Nofio, 886 P.2d 714, 719 (Colo. 1994). For injured workers in Colorado, the Act secures certain benefits and supports claims of entitlement to those benefits. Roth, 408 U.S. at 577. Once the employer admits liability, the Act entitles the claimant to property interests that include temporary benefits and medical treatment. Thus, after liability is determined, Smith and the class he represents possess statutorily created property interests in the continued receipt of disability benefits and medical treatment.
B. The Fee Requirement Denies Indigent Claimants A Meaningful Opportunity To Be Heard In A Meaningful Manner Before The State Deprives Them Of Their Property Interests
Once a property interest has been established by statute, as is the case here, the Fourteenth Amendment constrains the government from depriving people of their property interest without due process. See, e.g., Nofio, 886 P.2d at 719 ("A claimant who has been awarded benefits in a workers' compensation case is entitled to procedural due process before those benefits may be terminated.") (citations omitted).
Before turning to the specific requirements of federal due process, however, it is important to note at the outset that our due process analysis does not address a fundamental right to meaningful access to the courts, see, e.g., Bounds v. Smith, 430 U.S. 817, 828 (1977) (holding that the government had an affirmative obligation to provide prisoners with law libraries and supplies that would facilitate their fundamental right of access to the courts); Lewis v. Casey, 518 U.S. 343, 351 (1996) (limiting the scope of Bounds but reaffirming that there is a constitutional right of access to the courts), or any other fundamental rights that would require a waiver of court fees for indigent litigants. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (holding that it was unconstitutional to deny indigent individuals access to the courts for filing a divorce petition because of their inability to pay); M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996) (declaring unconstitutional a state requirement that parents pay a fee for preparation of the trial record to appeal a termination of custody).
Because the class of indigent claimants challenged the DIME fee under the Fourteenth Amendment of the United States Constitution, we do not analyze the right of workers' compensation claimants to access to the courts under article II, section 6 of the Colorado Constitution. See Allison, 884 P.2d at 1119.
The DIME fee is not a general filing fee that prevents indigent claimants from litigating their claims in court. As discussed, no workers' compensation claimants can litigate their injury claims in civil proceedings. See Kandt, 645 P.2d at 1302. Our due process analysis is limited to Colorado's Workers' Compensation Act and the specific administrative and judicial regime of review under the Act that the state has created to ensure that workers are not prematurely denied temporary disability benefits and medical treatment. Thus, the question before us is not whether indigent claimants enjoy "equal access to the courts," but rather whether the DIME fee prohibits indigent claimants from exercising their right to administrative and judicial review of adverse decisions by the treating physician, as provided by the Act. Keeping the limits of our analysis in mind, we turn to a discussion of due process.
The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner."Mathews, 424 U.S. at 333 (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). However, this fundamental requirement of due process is not fixed or rigid. "[T]he process required by [the Due Process Clause] with respect to the termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstance under which the deprivation may occur." Walters, 473 U.S. at 320; see also Cafeteria Workers and Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961).
To determine whether the flexible requirements of due process are satisfied, a court must analyze the affected private and government interests by weighing three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See Mathews, 424 U.S. at 335.
In light of the private and governmental interests at stake here, and the nature of the statutory scheme that denies any administrative or judicial review of the treating physician's determinations for indigent claimants, we hold that the fee requirement unconstitutionally denies these claimants any opportunity to be heard before they are deprived of the continued receipt of temporary disability benefits and medical treatment. To explain our reasoning, we turn to a discussion of each Mathews factor.
1. Private Interest
First, one of the important factors to consider when evaluating the nature of the private interest that will be affected by official action is the "degree of potential deprivation." Id. at 341. For example in Goldberg, the Supreme Court emphasized that welfare benefits are given to persons on the very margin of subsistence:
The crucial factor in this context . . . is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.
397 U.S. at 264 (emphasis omitted). As a result, the United States Supreme Court found a high degree of deprivation when welfare benefits were terminated. Id. at 265. In later cases, the Supreme Court distinguished the degree of deprivation when the state terminated disability benefits because those benefits, unlike welfare benefits, were not based upon financial need. See Mathews, 424 U.S. at 342; Walters, 473 U.S. at 307, 333.
Here, although the deprivation involves disability benefits and medical treatment, the situation is more analogous to Goldberg because there is a high degree of potential deprivation when TTD benefits are terminated. Under the Act, eligibility for TTD benefits and medical treatment are not dependent on financial need, but indigent claimants like Smith are persons on the margin of subsistence.
Indeed, as a result of the treating physician's MMI determination, Smith's benefits were dramatically reduced from $305.39 per week (temporary total disability benefits) to a mere $120 per week (permanent disability benefits). As a result, indigent claimants like Smith would be forced to decide between spending over a month's worth of disability benefits on necessities such as food or rent or obtaining an independent medical examination, which now costs $675.
Justice Thurgood Marshall aptly characterized the plight of Smith and his class members who live on the margin of financial survival:
[N]o one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie . . . [t]hey have more important things to do with what little money they have."
United States v. Kras, 409 U.S. 434, 460 (1973) (Marshall, J., dissenting).
The devastating decline in benefits — directly caused by the treating physician's determination of MMI — is not unusual. About fifty percent of injured workers receiving TTD benefits must live on a subsistence income — $15,184 a year, which is less than one-quarter of the state median income. Even if these workers manage to live on their TTD benefits, the MMI determination triggering an automatic reduction in benefits and the termination of treatment can be financially disastrous for indigent workers and their families. Thus, considering the financial situation of the class of indigent claimants before us, we conclude that there is a high degree of hardship imposed by the termination of temporary disability benefits and treatment.
In 1998, the Federal Poverty Level for a family of four was $16,450. These figures mean that for fifty percent of the injured workers with a spouse and two or more children, their TTD benefits place them below the Federal Poverty Level unless there is an additional source of income.
Even in Mathews, the question before the Supreme Court was what process was due prior to the "initial termination" of benefits pending a review. 424 U.S. at 333. The claimants inMathews suffered only a temporary termination of benefits with the possibility that their benefits would be reinstated. For indigent claimants under Colorado's Workers' Compensation Act who cannot afford the DIME fee, there is a permanent termination of TTD benefits and medical treatment with no opportunity for review and reinstatement.
2. Nature of the Process and the Risk of Erroneous Deprivation
Next, we turn to whether the Act's procedure creates a risk of an erroneous deprivation or an inaccurate termination of indigent claimants' property interests and the probable value, if any, of additional or substitute procedural safeguards. Central to this inquiry is the nature of the relevant administrative process. Mathews, 424 U.S. at 343. In Mathews, for instance, there existed carefully structured procedures that protected a claimant's disability benefits from unconstitutional termination and thus the Court held that additional procedures were unnecessary. Id. at 349.
In Mathews, before a claimant's disability benefits could be initially terminated, a state agency team — consisting of a physician and a non-medical person trained in disability evaluation — investigated. Id. at 337. The investigation team communicated with the disabled worker and requested detailed information about his assessment of his own condition. Id. The team also requested information from the claimant's treating physician. If there was a conflict between the information provided by the beneficiary and the information obtained from the treating physician, the team could arrange for an examination by an independent consulting physician. Whenever the team's initial assessment of the beneficiary's condition differed from the beneficiary's own assessment, the beneficiary was informed that benefits could be terminated, provided a summary of the evidence upon which the proposed determination to terminate was based, and afforded an opportunity to review the medical reports and other evidence in the case file. The beneficiary could also respond in writing and submit additional evidence. Id. at 337-38. Overall, prior to the initial termination of benefits, a recipient could always submit new evidence regarding disability and such submissions could result in additional medical examinations.
Considering this elaborate process that afforded claimants an opportunity to be heard prior to the termination of benefits, the Supreme Court in Mathews noted, not surprisingly, that the overall reversal rate was only three percent. Id. at 346, n. 29.
In comparison, the nature of the relevant administrative process for indigent claimants under the Colorado Workers' Compensation Act stands in stark contrast. The fee requirement prohibits indigent claimants from any opportunity to be heard in front of an impartial adjudicator regarding the decisions of the treating physicians. The Act provides indigent claimants no opportunity to be heard — let alone a "meaningful opportunity" — because of the imposition of a fee for the DIME. For a special group of injured workers, those who are indigent, the decision of the treating physician is final and irrevocable. This group gets no opportunity for an independent evaluation, no benefit of the statutory presumptions accorded to this evaluation, no administrative hearing, no administrative appeal, and no right to appeal to our court system.
Because indigent claimants are foreclosed from any administrative or judicial review of the denial of their claims, the risk of erroneous deprivations — or the inaccurate decisions to terminate their property interests — is substantial. As discussed earlier, the reversal rate for the treating physician's determination of MMI is approximately thirty percent. In effect, thirty out of a hundred injured workers have had temporary disability benefits and medical treatment terminated prematurely or unnecessarily by employer-selected treating physicians. Such a high rate of erroneous terminations of benefits and treatment is significant in assessing whether the process afforded indigent claimants is constitutionally valid. See Mathews, 424 U.S. at 346 (overall reversal rate was only three percent); Walters, 473 U.S. at 327, 331 (holding that a statutory fee limitation for lawyers representing veterans challenging the termination of benefits was constitutional because, among other things, the overall reversal rate for agency decisions was only sixteen percent and the success rate for veterans with representation was, at most, only three percent better than claimants without representation); see also United States Dep't of Labor v. Triplett, 494 U.S. 715, 726 (1990) (reviewing the constitutionality of the Black Lung Benefits Act of 1972 prohibiting attorneys' fees for representing claimants but not reaching the due process question because there was no showing that the Act prevented individuals from securing legal representation).
Beyond peradventure, the additional procedures granted to those who can afford to pay the DIME fee would ensure that indigent claimants received due process and would reduce the risk of erroneous deprivations or inaccurate decisions curtailing injured claimants' statutory property interests. The opportunity to obtain a medical evaluation, to have a hearing before an administrative law judge, to have the benefits of the statutory preferences accorded such a medical evaluation, and to have this decision reviewed on appeal both administratively and in the courts are statutory rights provided to non-indigent claimants. If these rights were afforded to indigent claimants, this particular group would unquestionably have an opportunity to be heard at a meaningful time and in a meaningful manner and thereby due process concerns would be satisfied.
3. Government Interest
The final factor to be assessed is the government's interest, including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Mathews, 424 U.S. at 347. The most visible burden on the government would be either the cost associated with a fee waiver for indigent claimants or the introduction of additional procedures that would afford indigent claimants due process. Without explanation and empirical support, the state argues that the fiscal and administrative burdens of an evidentiary hearing would be substantial. However, the Act already provides an evidentiary hearing before an administrative law judge for those with the ability to pay for a DIME. Because no information has been supplied, it is unclear how providing evidentiary hearings to indigent claimants to protect their statutory property rights imposes additional costs or burdens.
In Neff v. Comm'r of the Dep't of Indus. Accidents, 653 N.E.2d 556, 558 (Mass. 1995), for example, the Massachusetts Supreme Judicial Court considered its own workers' compensation scheme that required claimants to pay a fee as a jurisdictional prerequisite before they could challenge adverse decisions at an evidentiary hearing. Although the majority did not reach the constitutional procedural issue, the dissent reasoned that Massachusetts' scheme was constitutional as it applied to indigent workers because all claimants were afforded an opportunity to be heard, prior to the imposition of a fee, at an informal conference before an administrative law judge. Id. at 564 (O'Connor, J. dissenting). The conference included a memorandum of issues in dispute, exhibits, witnesses, and any other such information as may be allowed or required. Id. at 563.
Even so, financial and administrative burdens alone are not the controlling weight in determining whether due process is adequately afforded. Id. at 348. Indeed, we are not persuaded that any government burdens, real as they might be, should outweigh the interests of indigent claimants who disproportionately suffer the termination of temporary disability benefits and medical treatment without any opportunity to be heard before an impartial adjudicator. Goldberg, 397 U.S. at 266.
In sum, after weighing the respective private and public interests, we hold that the fee requirement found in sections 8-42-107(8)(b)(II), 8-42-107(8)(c), 8-42-107.2(5), and Division Rule XIV(L)(4) — by requiring indigent workers to prepay a fee before they can obtain either administrative or judicial review of adverse decisions of a treating physician — violates the procedural due process guarantee of the Fourteenth Amendment. As a result, the state must either waive the DIME fee for indigent claimants or introduce additional procedures for such claimants that guarantee them an opportunity to be heard at a meaningful time and in a meaningful manner prior to the termination of their disability benefits and medical treatment.
This result, mandated by federal due process concerns as set forth in Mathews is consistent with our own precedent concerning administrative and judicial review of the termination of injured workers' benefits and treatment. See, e.g., Allison, 884 P.2d at 1119; Nofio, 886 P.2d at 719.
V. CONCLUSION
For the reasons stated above, we affirm the judgment of the district court.
JUSTICE COATS concurs in the judgment only.