dissenting.
This case involves a class action brought on behalf of all persons who, as a result of sustaining employment-related injuries, are recipients of benefits under the Virginia Workmen’s Compensation Act, Va. Code Ann. § 65.1-1 et seq. The action challenges the constitutionality under the Due Process Clause of the Fourteenth Amendment of that part of the Act allowing a termination of benefit payments by the employer or insurer as a result of an asserted change in condition prior to a full hearing on the alleged change before the Commission. The complaint prayed for an injunction to restrain enforcement of that part of the Act. A three-judge District Court was convened, 28 U. S. C. § 2281, and the challenged portions of the Act were found constitutional, one judge dissenting. 347 F. Supp. 71 (ED Va. 1972).
The Act provides a system allowing the employer and the employee to escape personal injury litigation for on-the-job injuries; it provides for the payment of compensation under fixed rules. Once the Industrial Commission approves an award of benefits, the Commission or. any party in interest may move for review of the award “oh the ground of a change in condition.” Va. Code Ann. § 65.1-99. According to the Commission’s Rule 13, all such applications by an employer or insurer to decrease or terminate benefits “ ‘require that an ex parte inquiry be held by the Commission to determine whether probable cause exists for a change in the award, before any benefits may be temporarily suspended pending a full hearing.’ ” 347 F. Supp., at 79.
Suspension of benefits awarded by the Commission is thus permitted upon an ex parte determination that “probable cause” for termination exists. The parties here do not dispute that the full hearing conducted by the Commission before final termination, with notice *800and opportunity for all parties to be heard, satisfies the requirements of due procéss. At issue is the ex parte suspension of benefits of a Commission’s award prior to that final hearing. The Court does not reach the constitutionality of the suspension, because a claimant, whose benefits have been so suspended, may bring suit in a state court to have them reinstated, pursuant to Va. Code Ann. § 65.1-100.
T disagree that the opportunity for a claimant to counteract a termination of benefits payable under an award of the Commission by instituting a state court action is an answer to the constitutional challenge to the termination.* The issue here is the necessity of a hearing before termination of benefits. Any state remedy which places upon the worker the burden of going to court to redress a termination which has already occurred is simply not in point. It places the burden of affirmative action upon that segment of society least able to bear it at a time which could not be less opportune. As Judge Merhige said below in dissent: “Judges need not blind' themselves to what they know as mén. ' I cannot help but believe that the average workingman in Virginia, who has' sustained an injury resulting in a substantial reduction of his weekly income/ suffers a grave and immediate loss. . . . The very thought that the ex parte proceeding permitted by Rule 13 may result in a cessation of milk delivery, or electric power, or fuel to a working ftian and his family, shocks my conscience.”- 347 F. Supp., at 81. *801The opportunity for working-class men .and women in that grave situation to enter state court and do battle with the corporate employers and insurers who have already terminated their benefits without a hearing is no meaningful solution to their problem.
Since I find the state remedy inapposite, I dissent from the remand to consider its impact.
In Sniadach v. Family Finance Corp., 395 U. S. 337- (1969), wages earned could not be seized under garnishment by a creditor without prior notice and opportunity to be heard. By the same token, in the present case entitlement to an award made by the Commission should not be taken ex parte but only after prior notice and opportunity to be heard if procedural due process is to control as it must by reason of the Fourteenth Amendment.