(dissenting).
Because I conclude that my fellow judges have this day by their conclusions permitted the continued violation of constitutional rights of the plaintiff and the class which he represents, I must respectfully dissent from their views.
The matter comes before the Court without benefit of an evidentiary hearing. Nevertheless the pleadings, the answers to the interrogatories, the stipulations entered into between the parties, and the admissions at the bar of the Court during argument in this cause, in my opinion, establishes the following:
This is an appropriate class action and the named plaintiff is representative of that class of persons who, upon sustaining an injury while in the course of their employment, are recipients of workmen’s compensation benefits in accordance with the provisions of Virginia’s Compensation Act, Title 65, Code of Virginia, as amended. Rule 23 F.R.C.P.
The named plaintiff sustained an injury which entitled him to Workmen’s Compensation payments in the amount of $40.80 per week commencing on March 23, 1971, as evidenced by a Memorandum of Agreement entered into between the plaintiff and the defendant insurance company acting in place of his employer, and approved by the Industrial Commission of Virginia on March 30, 1971. Within less than three months thereafter these payments were discontinued by reason of Aetna having filed an application for hearing before the Industrial Commission of Virginia, alleging that plaintiff had undergone a change in condition and was physically capable of resuming his employment. Approximately seven weeks thereafter a finding of the Commission resulted in plaintiff receiving the suspended payments and the continuation of same on a weekly basis. Within less than a month of a finding by the Commission that Dillard was entitled to the accrued compensation and a resumption of the directed compensation, Aetna once again filed an application for hearing alleging a change of condition, and payments once again were suspended and remained so until, upon agreement of Aetna and Dillard, the application for hearing was dismissed and compensation resumed.
The twice accomplished cessation of compensation was based upon the then existing Rule 13 of the defendant Commission, promulgated in accordance with § 65.1-18 of the Code of Virginia (1940).1 The majority has set out the rule in toto which, as stated by the majority, was amended effective April 2, 1972, by adding the following sentence:
All applications by an employer or insurer shall be under oath and shall not be deemed filed and benefits shall not be suspended until the supporting evidence which constitutes a legal basis for changing the existing award shall have been reviewed by the Commission, or such of its employees as may be designated for that purpose, and a determination made that probable cause exists to believe that a change in condition has occurred.
It is this rule which is under constitutional attack as allegedly violating the due process clause of the Fourteenth Amendment to the Constitution of the United States.
*79My colleagues suggest that the amendment to the rule was brought about to preclude the cessation of payment of benefits upon an assertion by an employer of a change in condition, and they suggest that neither the statutory scheme nor the amended rule “make any provision for the employer or insurer to cease payments.” A reading of the rule clearly shows a contemplation that the benefits will be suspended upon compliance with the rule prior to the workman being given any opportunity to be heard or indeed even be advised that an application by his employer or insurer had been filed. The Industrial Commission itself, in its motion for summary judgment, describes the effect of Rule 13 as to “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 . . .”
Much is stated in the majority opinion as to what the rule allegedly does not do; the material fact, however, is that what it does do is to deprive the plaintiff and the members of his class of a property right without due process of law.
The Legislature of Virginia intended to make the Act exclusive in the industrial field, so that in the event of an accident the rights of all those so engaged would be governed solely thereby.
As pointed out by the majority, under the Act both employer and employee surrender former rights and gain certain advantages. Under the Act there is read into every contract of employment within the purview of the Act the obligation of an employer to pay specified compensation for injury to an employee arising out of his employment, and for an employee in consideration thereof to forego certain of his common law remedies.2
A provision seldom invoked permits an employee prior to an accident to give notice of his intention not to be covered by the Act. The answers to the interrogatories fail to indicate the total number of covered employees in the State, but do indicate that approximately 900 employees of a total of 75,919 employers chose to do so in 1971.
The Legislature of Virginia has accorded to the Industrial Commission, the promulgators of the rule in question, the power to enforce the attendance of parties in interest and witnesses, as well as the production and examination of books, etc.
While the majority declares the questioned rule not to be violative of the constitutional right of due process, they describe the matter as one “where[in] one party owing another money ceases payment. The payee has a right of action against payor, but there is no provision in law that before payor ceases payments, he must give notice and an evidentiary hearing be held.” (Majority opinion, p. 77.)
If the suggestion be that the Fourteenth Amendment to the Constitution of the United States does not come into play by virtue of a lack of State action, a perfunctory study of Virginia’s statutory scheme as to the conduct of the parties in the field of workmen’s compensation produces an inextricable and manifest enmeshment of a State agency to such a significant extent as to preclude any viable argument to the contra. We do not deal here solely with individual invasion of individual rights outside the State’s responsibility under the Fourteenth Amendment. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) and eases cited therein.
We deal here with a statewide regulation enacted by a state-constituted commission “functioning pursuant to a statewide policy and performing a state function.’’ Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967); Goldberg v. Kelly, 397 U. *80S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
It appears to me that the majority puts much too much stress on the fact that an aggrieved workman ultimately receives a hearing. While it is quite true that the answers to the interrogatories indicate that the average time between the filing of an application for review of the award on an alleged change in condition and the hearing by the Commission is one month, the same answers indicate that the time between an application for review and a hearing on any disagreement as to the continuance of weekly payments after same has been approved can run anywhere from one to eight months.
It is a basic principle of due process that an individual be given an opportunity for a hearing at a meaningful time and in a meaningful manner. In addition, the hearing must be appropriate to the nature of the case. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1949). Except for extraordinary situations where some valid governmental interest is at stake, there is no justification for the postponement of a hearing until after the event has transpired. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1970).
I have searched in vain for a mention in the majority opinion as to what governmental interest is so important as to outweigh the rights of the plaintiff class to avoid loss prior to procedural due process, for the extent to which procedural due process must be afforded is influenced by the extent to which one may be condemned to suffer grievous loss. The United States Supreme Court has consistently stated that in consideration of what procedures due process may require under any given set of circumstances, one must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. See Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969). The governmental concern which prompted the enactment of Virginia’s Workmen’s Compensation laws has been referred to time and time again by the Supreme Court of Appeals of Virginia. One of the primary purposes is to protect the employee so as to provide compensation to him for the loss of his opportunity to engage in work when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. The Act itself is to be liberally construed in harmony with its humane purposes. See Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291 (1941); Rust Engineering Co. v. Ramsay, 194 Va. 975, 76 S.E. 2d 195 (1953). Indeed the Legislature of Virginia was so concerned with the humane purposes of its Act that even an agreement reached between an employee and an employer may be approved only when the Industrial Commission, or any member thereof, is clearly of the opinion that the best interests of the employee . . . will be served thereby. See Virginia Code § 65.1-93, as amended.
While the majority makes no mention of the precise nature of the governmental function or interest involved, it was suggested during argument that the giving of notice and a prior hearing would result in the need for additional employees to be retained by the defendant Commission. The answer is simple —such a statement is not supported by the evidence, and even if it could be the constitutional requirement of due process was in particular designed to protect the particular interest of the person whose rights are being affected, and was never intended to promote efficiency or to accommodate all possible interests. See Goldberg v. Kelly, supra. See also, Fuentes v. Shevin et al., 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (June 12, 1972).
It would seem that, if anything, governmental interests would be promoted *81by affording recipients of workmen’s compensation their pre-termination evidentiary hearing, or at the very least an opportunity to submit documentary evidence prior to any cessation of benefits to which it has been adjudicated by the Commission they are entitled. The fact that the law of Virginia precludes any recovery of any payments made by an employer, to me simply points up the concern the Legislature had for the injured employee.
It is suggested that “the worst possible effect of the [instant] procedure which plaintiffs attack as being lacking in due process would be that for a period of a few weeks until a hearing is held a claimant who is finally determined to be eligible for payments would have to live on his accumulated savings or, if he had no savings, would have to resort to relief.” 3 While there is no evidence to support any such supposition, the few weeks referred to by the majority insofar as the named plaintiff is concerned stretched into seven before the Commission made a finding resulting in the resumption of weekly payments. The very suggestion that a member of the plaintiff class would have to resort to relief appears to me to point up that the governmental interest involved would be better served by the simple practice of giving notice and affording a hearing prior to cessation of benefits.
Judges need not blind themselves to what they know as men. I cannot help but believe that the average working man in Virginia, who has sustained an injury resulting in a substantial reduction of his weekly income, suffers a grave and immediate loss. The cessation of delivery of what may well be the necessities of life to a working man with a family is seldom preceded by any degree of formality. Where no valid State interest is involved, a court of all our institutions ought not be a party, even peripherally, of approving what on its face is manifestly unfair. It should be constantly kept in mind that the situation to which the plaintiff class addresses itself only arises subsequent to a determination that the particular member of the plaintiff class has been injured in his work and is entitled to compensation. I can think of no reason why notice and a hearing should not be given to the very person whom the Industrial Commission, by its approval of the original agreement for compensation, has found entitled to same under the law. 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 man and his family, shocks my conscience.
I have no doubt that this is a case of “brutal need” similar to that in Goldberg v. Kelly, supra, yet I must say that the burden of showing such is, in my opinion, not necessary to find the rule in question violative of the Constitution. In Fuentes v. Shevin, supra, Mr. Justice Stewart succinctly points out that the Court’s conclusions in Goldberg in no way marked a departure from established principles of procedural due process. Goldberg and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, simply re-establish what has always been the law to the effect that due process requires an opportunity for a hearing before a deprivation of property takes effect. While, as Mr. Justice Stewart points out, the primary issue in Goldberg was the form of hearing demanded by due process before determination of welfare benefits, hence the importance of welfare was directly relevant to that question just as in our instant case the relative weight of the claimant class’ property interest is relevant to the formal notice and hearing which I believe is required by due process.
We deal here with established rights. Recipients of workmen’s compensation are not beneficiaries of a handout. They are entitled to the funds they receive. Indeed the United States Supreme Court *82has held unconstitutional a determination by a State to suspend one’s driver’s license prior to notice and hearing. See Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1970).
One further comment on the majority’s suggestion that the rule is drafted in such a way as to discourage unwarranted applications for cessation of payments by reason of that portion of the rule which permits the assessment of costs and unreasonable attorneys’ fees against an employer. That portion of the rule does not come into effect until costs and attorneys’ fees have been incurred by virtue of defending a proceeding “without reasonable grounds.” It seems to me while the theory may sound well, as a practical matter it is useless. In the first place a workmen’s compensation recipient, as it now stands under the rule, would not even know an application had been filed for cessation of his payments unless and until that fact occurred, and by that time the Commission has already, pursuant to its rule, found probable cause, which I believe can reasonably be interpreted as reasonable grounds. I can hardly see the threat of assessment of attorneys’ fees or costs being of any consequence in the instant situation.
I respectfully suggest that my colleagues’ dependence on Torres v. New York State Dept. of Labor, supra, n. 3, is misplaced, for first, that Court dealt with a prospective loss of government funds, whereas in our instant case no State funds are involved at all; and, in addition, the claimant made a weekly report to the State office. Provision was also made for one to be interviewed with respect to any new information which might affect his eligibility for unemployment compensation. In our instant case a claimant is given no opportunity to be heard until after the fact. The Torres Court, finding an absence of “brutal need” which it interpreted as the basis for decision in Goldberg, supra, found that the governmental interest involved in its case outweighed plaintiff’s claim. While I conclude from Fuentas, supra, that a reliance on a “brutal need” standard is misplaced, as I have endeavored to point out heretofore, the majority, while finding no brutal need situation in our instant case, conspicuously refrains from any reference to a superior governmental interest, a factor which I deem to be required.
Due process requires both notice and hearing prior to the deprivation of a right. Any exception can be justified only by reason of a State interest so strong as to permit a deviation from the requirement. Such a situation is not present in the instant case and no rationalization can make it so. The majority’s actions cannot be justified on the ground that the members of plaintiff’s class will ultimately receive notice and a hearing, for no court has ever adopted the general proposition that a wrong may be done simply because it can be undone.
I respectfully record my dissent.
. This section permits the Commission to promulgate rules not inconsistent with Act for carrying out its provisions.
. Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946); Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575 (1951).
. This language was adopted by the majority from the language of the Court in Torres v. New York State Dept. of Labor, 321 F.Supp. 432, 437.