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No. 99-291
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 321
302 Mont. 518
15 P. 3d 877
MICHAEL POWELL,
Petitioner/Appellant,
v.
STATE COMPENSATION INSURANCE FUND,
Respondent/Insurer for
SECURITY ARMORED EXPRESS,
Employer/Insured.
APPEAL FROM: Workers' Compensation Court
State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Sara R. Sexe, Marra, Wenz & Johnson, Great Falls, Montana
For Respondent:
Ann Clark, Carrie Garber, State Compensation Insurance Fund, Helena, Montana
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Submitted on Briefs: December 2, 1999
Decided: December 12, 2000
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Michael Powell (Michael) appeals a decision of the Workers' Compensation Court denying his
constitutional challenge to § 39-71-1107(3), MCA (1995), governing domiciliary care benefits. We
affirm.
¶2 Michael raises the following issue on appeal:
¶3 Whether the statutory cap on domiciliary care benefits as provided in § 39-71-1107(3), MCA (1995),
is unconstitutional.
Factual and Procedural Background
¶4 Michael suffered severe head and facial injuries in a motor vehicle accident that occurred in the
course and scope of his employment with Security Armored Express. The accident occurred on October
7, 1995, therefore, the 1995 version of the Workers' Compensation Act governs his benefits. Buckman v.
Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382 (citing Trusty v.
Consolidated Freightways (1984), 210 Mont. 148, 151, 681 P.2d 1085, 1087; Iverson v. Argonaut Ins.
Co. (1982), 198 Mont. 340, 342, 645 P.2d 1366, 1367).
¶5 After the accident, Michael remained in the hospital until October 20, 1995. He was then admitted to
the Comprehensive In-Patient Rehab Unit where he remained until November 10, 1995. Upon his
discharge from the rehab unit, Dr. Bill Tacke, the rehab physician, recommended that Michael have, at
the least, daily supervision.
¶6 In late 1995, Michael began having seizures which cause him to lose consciousness and to lose
muscle control. In addition, due to the injuries he sustained in the accident, Michael has attention,
concentration and memory difficulties.
¶7 Michael has good days and bad days. On a good day, he bathes and showers himself and walks to the
post office to check his mail, buying a cup of coffee along the way. He will occasionally do some
cooking and a few household chores. Also on a good day, Michael will walk the seven blocks to the
home of one of his friends and he will occasionally go out in the evening by himself to play cards with
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his friends.
¶8 On bad days, generally following a seizure, Michael is virtually bedridden. He only gets up to eat and
to use the bathroom. Even on Michael's good days, Mary, Michael's wife, fixes many of his meals,
washes his clothes and makes sure he takes his medicine. Michael developed diabetes in April 1997, and
Mary must also make sure that Michael monitors his blood sugar.
¶9 The State Compensation Insurance Fund (State Fund), acting as Security Armored Express's insurer,
accepted liability for Michael's injuries and paid medical and wage loss benefits. Michael also requested
payment for domiciliary care provided by Mary, but the State Fund denied payment of those benefits.
Consequently, Michael filed a petition in the Workers' Compensation Court requesting retroactive and
ongoing domiciliary care benefits at a rate of compensation greater than allowed by § 39-71-1107, MCA
(1995), the statute governing payment of those benefits. This statute provides:
Domiciliary care -- requirements -- evaluation. (1) Reasonable domiciliary care must be
provided by the insurer:
a) from the date the insurer knows of the employee's need for home medical services that results
from an industrial injury;
(b) when the preponderance of credible medical evidence demonstrates that nursing care is
necessary as a result of the accident and describes with a reasonable degree of particularity the
nature and extent of duties to be performed;
(c) when the services are performed under the direction of the treating physician who, following a
nursing analysis, prescribes the care on a form provided by the department;
(d) when the services rendered are of the type beyond the scope of normal household duties; and
(e) when subject to subsections (3) and (4), there is a means to determine with reasonable
certainty the value of the services performed.
(2) When a worker suffers from a condition that requires domiciliary care, which results from the
accident, and requires nursing care as provided for in Title 37, chapter 8, a licensed nurse shall
provide the services.
(3) When a worker suffers from a condition that requires 24-hour care and that results from the
accident but that requires domiciliary care other than as provided in Title 37, chapter 8, the care
may be provided by a family member. The insurer's responsibility for reimbursement for the care
is limited to no more than the daily statewide average medicaid reimbursement rate for the
current fiscal year for care in a nursing home. The insurer is not responsible for respite care.
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(4) Domiciliary care by a family member that is necessary for a period of less than 24 hours a day
may not exceed the prevailing hourly wage, and the insurer is not liable for more than 8 hours of
care per day.
¶10 On the second day of trial, the parties reached a settlement wherein they agreed that Mary would be
paid for providing domiciliary care for Michael. The agreement called for payment at the maximum rate
permitted by § 39-71-1107(3), MCA (1995). This rate was determined to be $80.15 per day for fiscal
year 1995; $82.64 per day for fiscal year 1996; $85.62 per day for fiscal year 1997; and $87.76 per day
for fiscal year 1998.
¶11 On May 15, 1998, the parties reduced their agreement to a written stipulation for judgment and, on
May 28, 1998, judgment was entered pursuant to that stipulation. Michael reserved his right to challenge
the constitutionality of § 39-71-1107(3) and (4), MCA (1995). The Montana Attorney General's Office
was notified of the constitutional challenge, but filed a Notice of Intent Not to Intervene on March 27,
1998.
¶12 The Workers' Compensation Court subsequently found § 39-71-1107, MCA, to be constitutional.
The court also ruled that Michael did not have standing to challenge subsection (4) of the statute because
he required 24-hour care and thus was not affected by that subsection. This appeal followed.
Standard of Review
¶13 Resolution of this issue involves a question of constitutional law. The standard for reviewing
conclusions of law is whether they are correct. Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶
10, 294 Mont. 449, ¶ 10, 982 P.2d 456, ¶ 10 (citing State v. Butler, 1999 MT 70, ¶ 7, 294 Mont. 17, ¶ 7,
977 P.2d 1000, ¶ 7).
The constitutionality of a legislative enactment is prima facie presumed, and every intendment in
its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. The
question of constitutionality is not whether it is possible to condemn, but whether it is possible to
uphold the legislative action which will not be declared invalid unless it conflicts with the
constitution, in the judgment of the court, beyond a reasonable doubt.
Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 150, 855 P.2d 506, 508-09, cert. denied, 510 U.S.
1011, 114 S.Ct. 600, 126 L.Ed.2d 566 (1993) (citing Fallon County v. State (1988), 231 Mont.
443, 445-46, 753 P.2d 338, 339-40). See also State v. Lilburn (1994), 265 Mont. 258, 262,
875 P.2d 1036, 1039, cert. denied, 513 U.S. 1078, 115 S.Ct. 726, 130 L.Ed.2d 630
(1995). Every possible presumption must be indulged in favor of the constitutionality of a
legislative act. Davis v. Union Pacific R. Co. (1997), 282 Mont. 233, 240, 937 P.2d 27, 31
(citing State v. Safeway Stores, Inc. (1938), 106 Mont. 182, 199, 76 P.2d 81, 84). The
party challenging a statute bears the burden of proving that it is unconstitutional beyond a
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reasonable doubt and, if any doubt exists, it must be resolved in favor of the statute.
Grooms v. Ponderosa Inn (1997), 283 Mont. 459, 467, 942 P.2d 699, 703 (citing Heisler
v. Hines Motor Co. (1997), 282 Mont. 270, 279, 937 P.2d 45, 50).
Discussion
¶14 Whether the statutory cap on domiciliary care benefits as provided in § 39-71-1107
(3), MCA (1995), is unconstitutional.
¶15 Michael challenges the constitutionality of § 39-71-1107(3), MCA, on two related
grounds. First, he contends that the limitation on benefits for 24-hour care violates his
right to equal protection of the laws under the Fourteenth Amendment to the United States
Constitution and Article II, section 4 of the Montana Constitution because, as a result of
his choice to live at home rather than a skilled nursing facility, Mary is significantly under
compensated for providing Michael's care. Second, he contends that the limitation on
benefits is arbitrary and capricious thereby violating his right to substantive due process
under the Fourteenth Amendment to the United States Constitution and Article II, section
17 of the Montana Constitution.
A. Equal Protection
¶16 Both the Fourteenth Amendment to the United States Constitution and Article II,
section 4 of the Montana Constitution provide that no person shall be denied the equal
protection of the laws. Indeed, the principal purpose of Montana's Equal Protection
Clause is to ensure that Montana's citizens are not subject to arbitrary and discriminatory
state action. Davis, 282 Mont. at 240, 937 P.2d at 31 (citing Godfrey v. Mont. State Fish
& Game Com'n (1981), 193 Mont. 304, 306, 631 P.2d 1265, 1267). And, "[n]
otwithstanding the deference that must be given to the Legislature when it enacts a law, it
is the express function and duty of this Court to ensure that all Montanans are afforded
equal protection under the law." Davis, 282 Mont. at 240, 937 P.2d at 31.
¶17 We review equal protection challenges to legislation under one of three recognized
levels of scrutiny. First, where the legislation at issue infringes upon a fundamental right
or discriminates against a suspect class, such as race or national origin, we apply strict
scrutiny, the most stringent standard of review. Strict scrutiny requires the government to
show a compelling state interest for its action. See Henry, ¶ 29; State v. Renee, 1999 MT
135, ¶ 23, 294 Mont. 527, ¶ 23, 983 P.2d 893, ¶ 23; Davis, 282 Mont. at 241, 937 P.2d at
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31.
¶18 Second, where the right in question has its origin in the Montana Constitution, but is
not found in the Declaration of Rights, we employ a middle-tier scrutiny. Middle-tier
scrutiny requires the State to demonstrate that its classification is reasonable and that its
interest in the classification is greater than that of the individual's interest in the right
infringed. See Henry, ¶ 30; Renee, ¶ 23; Davis, 282 Mont. at 241, 937 P.2d at 31-32.
¶19 And, finally, where the right at issue is neither fundamental nor warrants middle-tier scrutiny, we
review the challenge under a rational basis test. This test requires the government to show that the
objective of the statute was legitimate and bears a rational relationship to the classification used by the
Legislature. See Henry, ¶ 33; Renee, ¶ 23; Davis, 282 Mont. at 241-42, 937 P.2d at 32.
¶20 Michael argues that the limitations codified in § 39-71-1107(3), MCA, legislatively compromise his
fundamental and inalienable rights of privacy and liberty by specifically infringing on his choice to
reside at home. He maintains that the effect of this statutory limitation is to force him to choose between
being placed into a nursing home or having Mary assist him for compensation of what he claims
amounts to only $3.65 per hour. Michael also argues that since the statute excludes respite care, Mary
has no breaks from care and, if she does take a break in care and has to compensate someone else for the
time spent caring for Michael, Mary has to pay that person more per hour than she herself is being paid.
¶21 While the rights to privacy and liberty are fundamental rights which require a strict scrutiny
analysis, see Gryczan v. State (1997), 283 Mont. 433, 448-49, 942 P.2d 112, 121-22, what is at issue in
this case is Michael's entitlement to certain legislatively created benefits. We have stated:
[T]he right to receive Workers' Compensation benefits is not a fundamental right which would
trigger a strict scrutiny analysis of equal protection. Nor does this 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. [Emphasis
added.]
Stratemeyer, 259 Mont. at 151, 855 P.2d at 509 (citing Cottrill v. Cottrill Sodding Service (1987),
229 Mont. 40, 42-43, 744 P.2d 895, 897). See also Henry, ¶ 29; Heisler, 282 Mont. at
279, 937 P.2d at 50.
¶22 Moreover, the first prerequisite to a meritorious claim under the equal protection clause is a showing
that the state has adopted a classification that affects two or more similarly situated groups in an unequal
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manner. Renee, ¶ 27 (citing In re S.L.M. (1997), 287 Mont. 23, 32, 951 P.2d 1365, 1371).
The equal protection clause does not preclude different treatment of different groups or
classes of people so long as all persons within a group or class are treated the same.
Consequently, when addressing an equal protection challenge, this Court must first
identify the classes involved and determine whether they are similarly situated. Henry, ¶
27 (citing S.L.M., 287 Mont. at 32, 951 P.2d at 1371). If the classes at issue are not
similarly situated, then the first criteria for proving an equal protection violation is not
met and we need look no further.
¶23 Michael argues that there is but a single class consisting of all workers' compensation
claimants subject to the restriction. We disagree. As the Workers' Compensation Court
pointed out, there are two classes created by § 39-71-1107, MCA; family member
caregivers who are subject to the limitation on compensation and non-family member
caregivers who are not subject to the limitation on compensation.
¶24 While the care provided by the family member may in some respects be identical to
the care provided by a non-family member, it also differs in some important respects. The
family member who typically provides care to the claimant is the claimant's spouse who
resided with the claimant in the family home prior to the accident. Some of the care
needed by the claimant, such as meal preparation, shopping, and cleaning, may have
already been provided by the family member prior to the accident. In addition, some of
the care provided may be passive supervision which would not preclude the caregiver
from carrying on many normal activities during the day or night. It is in this setting that
the family member caregiver, unlike a non-family member caregiver, eats, sleeps,
fraternizes with family and friends, pursues hobbies, and relaxes. Moreover, family
member caregivers provide care on a skill level much lower than that provided by non-
family member caregivers in professional licensed nursing facilities.
¶25 The non-family member caregiver, on the other hand, provides care as a full-time job,
works away from home, and has the sole task of caring for and watching over claimants.
Unlike the family member caregiver, the non-family member caregiver cannot pursue
other activities while caring for claimants.
¶26 These differences justify treating the family member caregiver differently from the
non-family member caregiver and for limiting payment to the family member caregiver.
Consequently, it is not necessary for us to determine which level of scrutiny, the strict
standard as Michael alleges should apply or the rational basis standard as is generally
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applied to Workers' Compensation cases, or whether § 39-71-1107(3), MCA, would pass
muster under either standard. Michael's challenge to the statute must fail because family
member caregivers and non-family member caregivers are not similarly situated for
purposes of equal protection.
¶27 Accordingly, we uphold the determination of the Workers' Compensation Court that
the payment limitation set forth in § 39-71-1107(3), MCA (1995), does not violate the
Equal Protection Clause of the United States or Montana Constitutions.
B. Substantive Due Process
¶28 Both the Fourteenth Amendment to the United States Constitution and Article II,
section 17 of the Montana Constitution provide that no person shall be deprived of life,
liberty, or property without due process of law.
The theory underlying substantive due process reaffirms the fundamental concept
that the due process clause contains a substantive component which bars arbitrary
governmental actions regardless of the procedures used to implement them, and
serves as a check on oppressive governmental action. Even though a plaintiff may
have no property or liberty interest grounded in state law which is protected from
arbitrary government action, such action still may be subject to review under
substantive due process. Substantive due process primarily examines the underlying
substantive rights and remedies to determine whether restrictions . . . are
unreasonable or arbitrary when balanced against the purpose of the legislature in
enacting the statute.
Newville v. State, Dept. of Family Services (1994), 267 Mont. 237, 249, 883 P.2d 793,
800 (citing J. McGuinness and L. Parlagreco, The Reemergence of Substantive Due
Process As A Constitutional Tort: Theory, Proof, and Damages (1990), 24 New Eng. L.
Rev. 1129, 1133).
¶29 "Substantive due process analysis requires a test of the reasonableness of a statute in
relation to the State's power to enact legislation." Newville, 267 Mont. at 250, 883 P.2d at
801 (quoting Raisler v. Burlington N. R. Co. (1985), 219 Mont. 254, 263, 717 P.2d 535,
541). Since the State cannot use its power to take unreasonable, arbitrary or capricious
action against an individual, a statute enacted by the legislature must be reasonably
related to a permissible legislative objective in order to satisfy guarantees of substantive
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due process. Newville, 267 Mont. at 250, 883 P.2d at 801 (citing Raisler, 219 Mont. at
263, 717 P.2d at 541). See also Ball v. Gee (1990), 243 Mont. 406, 412, 795 P.2d 82, 86;
In re C.H. (1984), 210 Mont. 184, 194, 683 P.2d 931, 936.
¶30 Michael argues that § 39-71-1107(3), MCA, violates the principles of substantive due process
because it arbitrarily and unfairly balances cost containment with Michael's personal choice of who acts
as his care provider. This Court has stated that cost containment alone cannot justify disparate treatment.
Heisler, 282 Mont. at 283, 937 P.2d at 52. However, while cost containment is one of the
justifications offered by the State Fund for treating family member caregivers differently
than non-family member caregivers, it is not the only justification. As we pointed out in
our discussion on equal protection, the differences in care provided by family member
caregivers and non-family member caregivers offers sufficient justification for limiting
compensation to family member caregivers. Consequently, we hold that § 39-71-1107(3),
MCA, is not arbitrary or capricious and is "reasonably related to a permissible legislative
objective." See Newville, 267 Mont. at 250, 883 P.2d at 801.
¶31 Accordingly, we uphold the determination of the Workers' Compensation Court that
the payment limitation set forth in § 39-71-1107(3), MCA (1995), does not violate the
Due Process Clause of the United States or Montana Constitutions.
¶32 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
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