95-485
No. 95-485
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
MICHAEL E. HEISLER,
Petitioner and Appellant,
v.
HINES MOTOR COMPANY,
Employer,
STATE COMPENSATION INSURANCE FUND
Insurer/Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court
For the State of Montana
The Honorable Michael McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lawrence A. Anderson, Great Falls, Montana
For Respondent:
Norman Clyde Peterson, Assistant Attorney General, Agency Legal
Services Bureau, Helena, Montana
Heard: January 16, 1997
Submitted: January 17, 1997
Decided: April 24, 1997
Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Michael E. Heisler (Heisler) appeals the decision of the Workersþ
Compensation Court denying his motion for summary judgment on the issue of whether
he was constitutionally entitled to change his treating physician without the prior approval
of the State Compensation Insurance Fund (State Fund). We reverse and remand.
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ISSUE
The dispositive issue presented on appeal is whether the Workersþ Compensation
Court erred in denying Heislerþs motion for summary judgment on the question of
whether he was constitutionally entitled to change his treating physician without the prior
approval of the State Fund.
FACTS
The facts in this case are not in dispute. On June 28, 1993, Heisler was injured
in a work-related auto accident while employed by Hines Motor Supply Company of
Great Falls. Hines Motor Supply Company was insured by the State Fund for purposes
of workersþ compensation. Immediately after the accident, Heisler sought treatment at
the emergency room at Columbus Hospital. Heisler also went to a convenient care clinic
on July 10, 12, and 14, 1993, for treatment of his injury. On July 12, 1993, Heisler
submitted a claim for compensation to the State Fund in which he named a Dr. Richard
A. Nelson as his treating physician.
The State Fund believed that Heislerþs initial visits to a given doctor at the
convenient care clinic constituted a choice of treating physician. The State Fund therefore
contended that Heisler was attempting to change his existing choice of treating physician
from the initial doctor to Dr. Nelson. Under ARM 24.29.1511, an injured claimant
cannot change treating physicians without the prior approval of the State Fund. Since
Heisler had not obtained its prior approval, the State Fund refused to pay any of the
charges Heisler incurred from his visits to Dr. Nelson. Heisler then instituted this suit
to compel payment of Dr. Nelsonþs expenses.
In the Workersþ Compensation Court, and now on appeal, Heisler contended that
he was statutorily entitled to full freedom to choose his own physician pursuant to 33-
22-111, MCA (1991). He further contended that this statute must take precedence over
the conflicting administrative rule, thereby allowing him to change his treating physician
without the State Fundþs approval. For its part, the State Fund contended that the
administrative rule was clear and unequivocal and, pursuant to its terms, the Fund had
no duty to pay for treatment from an unauthorized treating physician.
Based on his interpretation of the apparent conflict of laws, Heisler moved for
summary judgment. The Workersþ Compensation Court denied the motion, concluding
that 33-22-111, MCA (1991), did not conflict with ARM 24.29.1511 and, further, did
not apply in Heislerþs case. Heisler then moved that a final judgment be entered on that
basis. The Workersþ Compensation Court granted the motion and entered a final
judgment. Heisler appeals the denial of his motion for summary judgment.
STANDARD OF REVIEW
This Court's standard of review of a grant or denial of summary judgment is the
same as that used by the trial court in ruling upon the motion for summary judgment.
Malek v. Hankins (1996), 275 Mont. 97, 98, 911 P.2d 1127, 1128 (citing Motarie v.
Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 907 P.2d 154).
Summary judgment is proper only when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Malek,
911 P.2d at 1128.
DISCUSSION
Before addressing the merits of the case, we must dispose of certain collateral
matters.
First, the State Fund takes exception to Heislerþs citation to excerpts from certain
depositions in his brief. Relying on Johnson v. Killingsworth (1995), 271 Mont. 1, 894
P.2d 272, the State Fund contends that, in appealing this case, the parties must limit
themselves to the "uncontested facts" contained in the pretrial order, which included no
reference to the depositions in question. Johnson does not stand for the proposition
advanced, however.
In Johnson, this Court declined to consider certain evidence offered on appeal
which was not contained in the District Court record. In so doing, this Court stated that
"[i]t is axiomatic that this Court will not consider evidence not contained in the record
on appeal. Moreover, a partyþs reference to evidence does not incorporate that evidence
into the record." Johnson, 894 P.2d at 273 (citations omitted). Johnson does not address
whether this Courtþs consideration of the facts in a given case must be limited to the
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scope of the pretrial order; it merely states that this Court will not consider evidence
which is not part of the record. In the case at bar, the depositions referenced are part of
the record transmitted from the Workersþ Compensation Court on appeal.
The State Fund presents no relevant authority to support its argument that this
Courtþs review of the facts presented in the trial court must be limited to the uncontested
facts in a pretrial order. A pretrial order serves to "prevent surprise, simplify the issues,
and permit counsel to prepare their case for trial on the basis of the pretrial order."
King v. Zimmerman (1994), 266 Mont. 54, 66, 878 P.2d 895, 903 (citing Zimmerman
v. Robertson (1993), 259 Mont. 105, 111, 854 P.2d 338, 342). It lists such facts as are
uncontested, and if a party admits to a fact by allowing its inclusion as uncontested in a
pretrial order, the party will not be allowed to raise that particular factual issue on
appeal.
Whitehawk v. Clark (1989), 238 Mont. 14, 19, 776 P.2d 484, 487 (citing Morse v.
Cremer (1982), 200 Mont. 71, 647 P.2d 358). The pretrial order, however, includes
only such facts as are uncontested; it does not preclude a party from attempting to prove
additional facts which remain in dispute. Nor does the pretrial order in and of itself limit
the scope of this Courtþs review. On appeal, this Court may consider any evidence
which is part of the record, Johnson, 894 P.2d at 273, even if it was not included in a
pretrial order. Accordingly, if the depositions in question will facilitate our review we
will consider them, just as we are free to consider the entirety of the record presented on
appeal.
Second, the State Fund argues that this Court should decline to review the
Workersþ Compensation Courtþs decision in this case because the matter is moot. This
suit was filed to recover certain expenses incurred by Dr. Nelson, which the State Fund
refused to pay because Heisler had not obtained the Fundþs prior approval before
switching treating physicians. The State Fund notes that it has since authorized Dr.
Nelson to be Heislerþs treating physician and paid all the medical bills at issue. It
therefore contends that the issue presented is moot.
As the State Fund correctly notes, an issue is moot when it no longer presents a
justiciable controversy, due to the occurrence of a given event or the passage of time.
Montana Tavern Association v. State Department of Revenue (1986), 224 Mont. 258,
262, 729 P.2d 1310, 1313-14 (citations omitted). However, an issue will not be
considered moot if it is "capable of repetition, yet evading review." School Dist. No.
4 v. Board of Personnel Appeals (1985), 214 Mont. 361, 364, 692 P.2d 1261, 1263. In
order to prove that a given situation is capable of repetition, yet evading review, a party
must show:
(1) the challenged action was in its duration too short to be fully litigated
prior to the cessation or expiration of the action; and
(2) there was a reasonable expectation the same complaining party would
be subjected to the same action again.
School Dist. No. 4, 692 P.2d at 1263 (citing Sosna v. Iowa (1975), 419 U.S. 393, 95
S.Ct. 553, 42 L.Ed.2d 532).
We agree with the Workersþ Compensation Courtþs conclusion that the issue raised
in this case is not moot because the actions of the State Fund are capable of repetition,
yet evading review. We note that the State Fund has not abandoned its contention that
ARM 24.29.1511 gave it the absolute right to pre-approve a claimantþs change of treating
physician. Therefore, should Heisler again change his treating physician without the
prior approval of the State Fund, the Fund could again refuse to pay the expenses
incurred. The action complained of is capable of repetition.
Moreover, the dispute would probably continue to evade review, because the State
Fund could avoid resolution of the underlying problem by simply paying the disputed
expenses after a suit was instituted, just as it did in this case. Therefore, the State Fundþs
voluntary discontinuance of the action complained of was insufficient to render the issue
moot. Because the action which prompted institution of this suit is capable of repetition,
yet evading review, the State Fundþs payment of the disputed charges will not serve to
moot the issue presented. Having determined that the issue in the case is not moot, we
will review the substantive question presented.
Did the Workersþ Compensation Court err in denying Heislerþs motion for
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summary judgment on the question of whether he was constitutionally entitled to change
his treating physician without the prior approval of the State Fund?
This appeal stems from an apparent conflict of laws which existed as of the date
of Heislerþs injury. In this case, as in all workersþ compensation cases, it is the law in
effect on the date of the claimantþs injury which must be applied. Kraft v. Flathead
Valley Labor & Contractors (1990), 243 Mont. 363, 367, 792 P.2d 1094, 1096 (citing
Young Motor Company v. Division of Workers' Comp. (1985), 219 Mont. 1, 710 P.2d
58).
When Heisler was injured, 33-22-111, MCA (1991), provided in pertinent part:
[a]ll policies of disability insurance, including individual, group, and
blanket policies, and all policies insuring the payment of compensation
under the workersþ compensation act shall provide that the insured has full
freedom of choice in the selection of any licensed physician . . . .
(Emphasis added.) However, ARM 24.29.1511, which although enabled in 1993
retroactively applied to Heislerþs claim, provided in pertinent part:
Selection of physician for claims arising before July 1, 1993. Although
33-22-111, MCA, provides freedom of choice in selection of a physician,
workersþ compensation and occupational disease case law also recognizes
that a worker must select a single physician who is responsible for the
overall medical management of the workersþ condition. That physician is
known as the treating physician. . . . A worker must obtain prior
authorization before changing treating physician.
ARM 24.29.1511 (1993), enabled by 39-71-203, MCA (1993) (emphasis added).
Therefore, Heisler was confronted by two apparently irreconcilable provisions of law: one
which apparently granted him an absolute right to choose his own physician, the other
which prohibited him from changing physicians without the prior approval of the State
Fund.
While the Workersþ Compensation Court acknowledged the apparent conflict
between 33-22-111, MCA (1991), and ARM 24.29.1511 (1993), it concluded that these
provisions did not in fact conflict. The Workersþ Compensation Court cited 33-1-
102(5), MCA (1991), which stated "[t]his code [Title 33, Insurance and Insurance
Companies] does not apply to workersþ compensation insurance programs provided for
in Title 39, chapter 71, parts 21 and 23, and related sections." Under the plain language
of 33-1-102(5), MCA (1991), provisions in the insurance code (including 33-22-111,
MCA (1991) which granted individuals full freedom of choice of physicians) did not
apply to cases brought under workersþ compensation Plan 1 (Title 39, chapter 71, part
21, which set forth the law regarding self-insurers) or workersþ compensation Plan 3
(Title 39, chapter 71, part 23, which set forth the law regarding the State Fund). Since
Heisler was covered by the State Fund under Plan 3, the Workersþ Compensation Court
concluded that 33-22-111, MCA (1991), did not grant to him the right to choose his
own physician.
On appeal, Heisler first argues that the Workersþ Compensation Court
misinterpreted the relevant statutes. Upon review, we conclude that it did not. Section
33-22-111, MCA (1991), the statute which provided freedom to choose a physician, was
included in Title 33, the Insurance and Insurance Companies code. Section 33-1-102(5),
MCA (1991), stated that the provisions of Title 33 did not apply to workersþ
compensation cases involving coverage provided by the State Fund. Heisler admittedly
was covered by the State Fund. Therefore, the right to freely choose a physician was not
extended to him or to others whose coverage was provided either by the State Fund or
a self-insured company. Section 33-1-102(5), MCA (1991). This construction of the
relevant statutory provisions was correct; indeed, it was the only interpretation possible
given the plain language of the applicable statutes.
Heisler next argues that this interpretation of the statutes created an untenable equal
protection problem. Heisler argues that the Workersþ Compensation Courtþs
interpretation meant that the right to full freedom of choice of a physician was granted
to certain injured workers who were covered by workersþ compensation, specifically
those covered by Plan 2, private insurers (Title 39, chapter 71, part 22). At the same
time, injured workers who happened to be covered by Plan 1 or Plan 3 were not accorded
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this right. Heisler argues that this differentiation between similarly situated individuals
violated his right to equal protection of the law.
Initially, the State responds by arguing that this Court should not address this issue
because it was not raised in the trial court. The State notes this Courtþs long-standing
policy against addressing on appeal any issues which were not raised below. See Grenz
v. Fire and Casualty of Connecticut (1996), 924 P.2d 264, 267, 53 St.Rep. 898, 900
(citing Rasmussen v. Lee (1996), 276 Mont. 84, 916 P.2d 98; Fandrich v. Capital Ford
Lincoln Mercury (1995), 272 Mont. 425, 901 P.2d 112). Since Heisler did not allege
an equal-protection violation in his petition, the State argues that this Court should decline
to hear his equal-protection allegation on appeal.
A review of the record, however, reveals that the equal protection issue was raised
before the Workersþ Compensation Court. In responding to Heislerþs original petition,
the State addressed the possible applicability of the equal protection clause of the Montana
Constitution. Heisler then in turn addressed this issue in his reply. Since the issue of
equal protection was argued in the Workersþ Compensation Court, it is not raised here
for the first time on appeal.
Equal protection of the laws requires that all persons be treated alike under like
circumstances. Billings Associated Plumbing, Heating and Cooling Contractors v. State
Board of Plumbers (1979), 184 Mont. 249, 253, 602 P.2d 597, 600 (citing U.S.Const.,
Amend. XIV, section 1; Mont.Const., Art. II, section 4; Montana Land Title Assn. v.
First American Title (1975), 167 Mont. 471, 539 P.2d 711). In reviewing equal
protection challenges to workersþ compensation statutes, this Court has said:
the right to receive Workersþ Compensation benefits is not a fundamental
right which would trigger a strict scrutiny analysis of equal protection. Nor
does this [workersþ compensation] statute infringe upon the rights of a
suspect class. When a right determined to be less than fundamental is
infringed upon by classification, the test applied by this Court is the rational
relationship test. That is, does a legitimate governmental objective bear
some identifiable rational relationship to a discriminatory classification.
Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 151, 855 P.2d 506, 509 (quoting
Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 42, 744 P.2d 895, 897). 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." Lyng v. Automobile Workers (1988), 485
U.S. 360, 375, 108 S.Ct. 1184, 1194, 99 L.Ed.2d 380 (Justice Marshall, dissenting).
In addition, legislative enactments are presumed to be constitutional. Vainio v.
Brookshire (1993), 258 Mont. 273, 277, 852 P.2d 596, 599; City of Helena v. Krautter
(1993), 258 Mont. 361, 364, 852 P.2d 636, 639. The party challenging the legislative
enactment bears the burden of proving its unconstitutionality beyond a reasonable doubt.
Vainio, 852 P.2d at 599 (citing Romero v. J & J Tire (1989), 238 Mont. 146, 149, 777
P.2d 292, 294). If any doubt exists, it must be resolved in favor of the legislative
enactment. GBN, Inc. v. Montana Department of Revenue (1991), 249 Mont. 261, 265,
815 P.2d 595, 597 (citing Harper v. Greely (1988), 234 Mont. 259, 269, 763 P.2d 650,
656).
Heisler argues that 33-22-111, MCA (1991), and ARM 24.29.1511 (1993), taken
together, discriminate against certain injured workers (specifically, those covered by Plan
1 or Plan 3 insurers). He therefore contends that persons under like circumstances (i.e.,
injured workers) are not treated alike (because some are given full freedom of choice of
physicians and others are not). Heisler further argues that this discrimination should not
be allowed because it is not rationally related to a legitimate governmental interest. See
Stratemeyer, 855 P.2d at 509.
The State responds by conceding that Plan 2 injured workers are treated differently
than Plan 1 and Plan 3 injured workers, in that Plan 2 workers are afforded the right to
freely choose or change their treating physician but Plan 1 and Plan 3 workers are not.
Nevertheless, the State presents three arguments in support of its contention that such
differentiation is proper and constitutional.
A. Case law from other jurisdictions.
First, the State argues that other state courts have addressed the issue of equal
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protection in the area of workersþ compensation and upheld statutes which have an effect
similar to that of the Montana administrative rule mandating pre-approval of a change in
treating physician. In support of this argument, the State discusses Burrgess v. Industrial
Commission (Ill.App.1 Dist.1988), 523 N.E.2d 1029; Rivers v. Oregon Accident
Insurance Fund (Or.App.1980), 610 P.2d 288; and Chiropractors for Justice v. State of
Alaska (Alaska 1995), 895 P.2d 962. But neither Burrgess nor Rivers are strictly on
point to the narrow issue presented in this case, and Chiropractors for Justice is
distinguishable.
Burrgess involved a challenge to an Illinois statute which mandated that an injured
worker obtain his or her employerþs consent before switching to a third treating
physician. The statute, however, gave the injured worker two elective physician choices
before the requirement of employer consent was triggered. Burrgess, 523 N.E.2d at
1033. While the Illinois Court of Appeals in Burrgess cursorily noted and dismissed the
claimantþs equal protection challenge, nothing in the case or in the challenged statute
(Ill.Rev.Stat.1985, ch.48, par.138.8(a)) indicated that the statute in question only applied
to some injured workers but not to others. Therefore, Burrgess sheds no light on the
question of whether a statutory scheme which does differentiate between similarly situated
injured workers may violate a claimantþs right to equal protection of the law.
Similarly, neither Rivers nor Chiropractors for Justice involve statutes which
differentiate between classes of injured workers on the basis of the insurance plan by
which the worker is covered. In Rivers, the Oregon Court of Appeals reviewed a
provision which allowed injured workers to choose their own physicians within the state
of Oregon, but allowed the insurer to choose the physician if the injured worker received
treatment outside the state of Oregon. Rivers, 610 P.2d at 289. The Oregon court
determined that such a requirement did not violate the claimantþs right to equal
protection, because it was rationally related to the legitimate governmental objective of
ensuring that the Oregon Workersþ Compensation Board would have the legal authority
to subpoena or otherwise compel the cooperation of the doctors whose services it
investigated. Rivers, 610 P.2d at 290. In Rivers, the Oregon court reviewed an equal
protection question quite different than the one faced by this Court today, and it justified
the challenged provision on a rational basis which cannot apply in the case at bar. Rivers
is therefore not on point.
In Chiropractors for Justice, the Alaska Supreme Court reviewed a statutory
provision which required an injured worker to receive approval before exceeding the
maximum number of allowable compensable medical treatments. But in this Alaska case,
a group of health-care providers (specifically, chiropractors), and not an injured worker,
asserted that the statute violated its right to equal protection of the law. In determining
that the provision in question did not violate the chiropractorsþ right to equal protection,
the Alaska court noted that the provision was rationally related to the legitimate
government aim "to reduce costs by curbing perceived abuses [of the workersþ
compensation system] through procedural safeguards. . . [and to] ensure that employers
are liable only for reasonable and necessary medical costs." Chiropractors for Justice,
895 P.2d at 971. The State argues that Chiropractors for Justice is persuasive authority
because the means (limitations on treatment) and the ultimate state goal (cost control)
which were sanctioned in that case are identical to the means and state goal challenged
in the case at bar. For reasons set forth in part "C," below, we determine that the goal
advanced by the Alaska statute is not identical to the goal advanced by the Montana
statute and, therefore, Chiropractors for Justice can and must be distinguished.
B. Effect of the challenged provision.
The State next argues that 33-22-111, MCA (1991), and ARM 24.29.1511
(1993), taken together, did not violate Heislerþs constitutional right to equal protection
because the effect of the statute and regulation is not to prevent the injured worker from
being treated by the physician of his or her choice but, rather, merely to limit the
circumstances under which the State Fund must pay for such treatment. The State
therefore argues that Heisler in fact retains his right to "full freedom of choice of
physicians," but, should he choose to exercise that right in violation of ARM
24.29.1511(1993), the State Fund will not bear the cost. Such an argument in
disingenuous at best.
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Few, if any, injured workers are willing or able to bear the entire cost of treating
their work-related injuries in exchange for the privilege of choosing their own physicians.
When the State makes the payment of treatment costs contingent on its approval of the
treating physician, it effectively removes the injured claimantþs right to freely choose the
physician of his or her choice. The State cannot seriously argue otherwise, given that,
as noted below, it cites the cost control achieved by limiting physician choice as the sole
rational basis justifying the policy requiring physician preapproval.
C. Equal protection challenge.
Lastly, and most significantly, the State argues that the admitted differentiation
between injured workers caused by 33-22-111, MCA (1991), and ARM 24.29.1511
(1993), should pass constitutional muster because such disparate treatment is rationally
related to the legitimate governmental goal of controlling workersþ compensation costs.
The State contends that
[r]equiring as part of the [workersþ compensation] program that claimants
in Heislerþs class obtain prior authorization before permitting a change in
doctors is a rational means of addressing the legitimate objective of
ensuring that all primary medical care is both reasonable and necessary.
In turn, ensuring that medical treatments meet the Stateþs criteria for "reasonable and
necessary" serves to control and minimize the cost of a workable workersþ compensation
program. The State argues that such a goal justifies treating Plan 1 and Plan 3 claimants
differently from Plan 2 claimants.
In support of its contention that cost control justifies disparate treatment, the State
cites Stratemeyer, where this Court reviewed a statutory provision which refused
workersþ compensation benefits to a claimant suffering from a mental injury. This Court
determined that the challenged provision did not violate the claimantþs right to equal
protection of the law, in part because we determined that the differentiation between
mental and physical injuries was rationally related to the legitimate governmental
objective of controlling workersþ compensation costs. Stratemeyer, 855 P.2d at 511.
Relying on Stratemeyer and Chiropractors for Justice, the State urges this Court to
determine that the challenged statute and administrative rule do not violate the claimantþs
right to equal protection of the law and must be upheld.
After review, we conclude that neither Stratemeyer nor Chiropractors for Justice
should control the result in this case. While both cases cite cost-control as a legitimate
reason for disparate treatment of injured workers, in neither case was cost-control the
only justification for the challenged provisions. In contrast, the only justification given
for treating certain injured workers differently than others in the case at bar is the
possibility that such discrimination will assist the State in controlling workersþ
compensation costs. Heisler argues that cost-control alone cannot justify discrimination.
We agree. On this basis, both Stratemeyer and Chiropractors for Justice must be
distinguished.
Cost-control alone cannot justify disparate treatment which violates an individualþs
right to equal protection of the law. Discrimination, that is, offering services to some
while excluding others for any arbitrary reason, will always result in lower costs. We
do not, however, allow discrimination merely for the sake of fiscal health. As the Alaska
court noted in Chiropractors for Justice,
the asserted goal of lowering insurance premiums can have no independent
force in the stateþs attempt to meet its burden under the equal protection
clause. Although reducing costs to taxpayers or consumers is a legitimate
government goal in one sense, savings will always be achieved by excluding
a class of persons from benefits they would otherwise receive. Such
economizing is justifiable only when effected through independently
legitimate distinctions.
Chiropractors for Justice, 895 P.2d at 971 (quoting Alaska Pacific Assurance Co. v.
Brown (Alaska 1984), 687 P.2d 264, 272) (emphasis added). In finding the respective
challenged provisions constitutional, this Court in Stratemeyer and the Alaska court in
Chiropractors for Justice both determined that "independently legitimate distinctions"
existed, beyond an arbitrary exclusion of some claimants, and that these "independently
legitimate distinctions" justified disparate treatment.
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In Chiropractors for Justice, the Alaska court determined that the requirement that
treatment sessions numbering beyond the statutorily allowed maximum be pre-approved
did not violate health-care providersþ right to equal protection. The court noted that such
a requirement
[was] not designed to reduce costs by depriving a certain class of persons,
e.g. chiropractors, of benefits they would otherwise receive. Rather, they
are designed to reduce costs by curbing perceived abuses through
procedural safeguards. Chiropractors may be paid for frequent treatments
by adhering to the regulation and demonstrating that the treatments are
reasonable and necessary. The purpose here was to ensure that employers
are liable only for reasonable and necessary medical costs.
Chiropractors for Justice, 895 P.2d at 971.
In the case at bar, the precise effect of the Montana statute and administrative rule
is "to reduce costs by depriving a certain class of persons of benefits they would
otherwise receive." The regulation does not serve to ensure that the medical costs
incurred are reasonable and necessary, because the relevant factor in cost control is the
reasonableness of the medical services provided, not the identity of the provider.
Limiting physician-choice does not address the reasonableness or necessity of a given
treatment; it reduces costs solely by prohibiting Plan 1 or Plan 3 claimants from
exercising a privilege granted to Plan 2 claimants.
In Stratemeyer, this Court acknowledged that control of workersþ compensation
costs was a legitimate government interest, to which the exclusion of mental-injury claims
was rationally related. However, mental-injury claims were not arbitrarily excluded
simply because their exclusion reduced costs. This Court also noted that compensating
injury claims which did not include a physical component would be problematic, in that
it would be very difficult to prove or disprove that the injury complained of was causally
related to the employment situation. Stratemeyer, 855 P.2d at 511 (citing Erhart v. Great
Western Sugar Company (1976), 169 Mont. 375, 379, 546 P.2d 1055, 1057). Therefore,
the policy against allowing mental- or stress-injury claims was rationally related to the
legitimate governmental interest of maintaining a workable workersþ compensation
system.
Furthermore, we note that Stratemeyer factually differed significantly from the case
at bar. Stratemeyer distinguished between mental and physical injuries and held that only
the latter were compensable under workersþ compensation. In the case at bar, identically
injured workers receive disparate treatment based solely on which workersþ compensation
plan insures them--a matter beyond the control of the average worker. This case is
therefore more analogous to Cottrill, where one injured worker was treated differently
than another, identically injured worker would be, based solely on where the claimant
lived. In Cottrill, this Court found such a distinction to be arbitrary and noted that "[a]
classification that is patently arbitrary and bears no rational relationship to a legitimate
governmental interest offends equal protection of the laws." Cottrill, 744 P.2d at 897
(quoting Tipco Corp., Inc. v. City of Billings (1982), 197 Mont. 339, 346, 642 P.2d
1074, 1078). Similarly, in this case, differentiating between injured workers based solely
on which insurance plan covers them is an arbitrary distinction, not rationally related to
the goal of controlling workersþ compensation costs.
In sum, we conclude that the policy of discriminating between injured workers
based solely on which insurance plan covers them is not rationally related to a legitimate
government objective. Having decided this case on the issue of equal protection, we need
not address Heislerþs second argument that the statute in question violates his
constitutional right to privacy. The decision of the Workersþ Compensation Court is
reversed and this matter is remanded to the Workersþ Compensation Court for further
proceedings consistent with this opinion.
/S/ WILLIAM E. HUNT, SR.
We Concur:
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95-485
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
Justice Karla M. Gray, concurring and dissenting.
I concur in the Court's statutory analysis and in the result it reaches on the equal
protection issue, although I would reach that result under a different analysis. In
addition, I disagree with the overly broad conclusion on which the Court bases its equal
protection holding.
I agree with the Court that Stratemeyer is distinguishable from the present case and
that it does not support the State Fund's position here. I cannot agree, however, with the
Court's sweeping conclusion that cost alone can never justify a classification or distinction
in the workers' compensation arena. That conclusion, while not stated as such, results
from the Court's agreement with Heisler's argument "that cost-control alone cannot
justify discrimination" and the Court's statement that "[c]ost-control alone cannot justify
disparate treatment which violates an individual's right to equal protection of the law."
This latter statement by the Court is circuitous at best. It suggests that disparate
treatment can actually violate equal protection prior to a determination of whether the
disparate treatment is rationally related to a legitimate governmental objective or interest.
This is simply not the case and the Court puts the cart before the horse in so stating.
In any event, however, it is my view that the Court's sweeping conclusion is
incorrect and ill-advised. The entire workers' compensation system is premised on an
economic compromise determined to be in the best interests of all concerned: employees
gave up the right to sue employers in tort for work-related injuries in exchange for a
guaranteed compensation system; employers avoided the potential of unlimited tort
liabilities in exchange for required "no fault" compensation payments to injured workers.
Indeed, the stated public policy objective of the Workers' Compensation Act is to provide
wage-loss benefits to injured workers "at a reasonable cost to the employer." Section 39-
71-105(1), MCA. Medical benefits, also to be provided without regard to fault, are
based on "reasonableness" and "cost-effectiveness." Sections 39-71-105(1) and 39-71-
704(a) and (b), MCA. Thus, to an extraordinary extent, the entire system is grounded
in "cost control" of various kinds. The Court's conclusion that cost control can never
justify disparate treatment eviscerates the purpose and provisions of the Act.
Moreover, resolution of the present case does not require a sweeping conclusion
of the type made by the Court. Here, the State Fund's position is that operating an
economical Plan Three system is a valid, legitimate governmental objective to which
requiring prior authorization before changing treating physicians is reasonably related;
stated differently, the State Fund contends that the prior authorization rule is a rational
means of addressing the legitimate objective of ensuring that all primary medical care is
both reasonable and necessary. The problem with that position is that the State Fund
articulates no nexus between the prior authorization rule and the economic operation of
Plan Three or the "reasonable and necessary medical care" objective. That is, the State
Fund makes no showing of how the prior authorization rule actually achieves any cost
control or cost reduction goals and I can conceive of none. Thus, while it is my view
that cost control in its broadest sense--which may include a variety of considerations
directed to maintaining, overall, a viable workers' compensation system to the ultimate
benefit of both employees and employers--can constitute a legitimate governmental
objective in the workers' compensation arena, I would conclude that no case has been
made here that the prior authorization rule is rationally related to that objective. On that
basis, I join the Court in holding that the prior authorization rule denies Heisler's right
to equal protection of the laws.
/S/ KARLA M. GRAY
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