Whiteside v. Smith

Justice COATS,

concurring in the judgment only.

While I agree with the district court that the workers' compensation regulatory scheme sanctions a taking of the plaintiffs' property without due process of law, I would reach that conclusion in a different way, and I would firmly reject the district court's conclusion that the scheme violates equal protection.1 Furthermore, I cannot agree with the majority rationale holding the scheme unconstitutional only as applied to indigent claimants, which I find to be, at one and the same time, both too broad and too narrow. By requiring expenses that fall neutrally upon everyone seeking a hearing to be advanced to indigents solely because of their current inability to pay, the majority implicitly interprets the Due Process Clause of the Fourteenth Amendment in a way that I believe has been steadfastly rejected by the United States Supreme Court. At the same time, however, by limiting its rationale to the advancement of costs to indigents, the majority, in my view, fails to identify the actual due process shortcoming of the scheme or protect adequately the due process rights of dissatisfied claimants. Because I am concerned about the broad implications of the majority's rationale, not only as it impacts those who lack, but also those who arguably possess, the ability to meet statutory preconditions for access to judicial or quasi-judicial process, I write separately to express my views.

I. As Applied to Indigent Claimants

The critical assumption of the majority's rationale (for which I find no adequate explanation or justification) is that the statutory requirement for a challenging party to make advanced payment for an independent medical examination ("IME") is valid except to the extent that it falls upon an indigent claimant; and when enforced against an indigent claimant, it is invalid, even though the interest at stake is not of a particularly fundamental nature and the claimant is not adversely affected by membership in a protected class. To be sure, the Supreme Court has held that a statute or rule may be constitutionally invalid as applied when it operates to deprive an individual of a protected right, although its general validity as a measure enacted in the legitimate exercise of state power is beyond question. Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). More particularly, a cost requirement, valid on its face, may offend due process because it operates to foreclose a particular party's opportunity to be heard. Id. at 380, 91 S.Ct. 780. But the Supreme Court has never suggested that conditioning the basic right to be heard in defense of one's property on the payment of a fee is valid, regardless of ability to pay; and the Court has been extremely cireum-spect in requiring a waiver of otherwise valid fees for indigents in civil cases, making clear that such a requirement is the exception rather than the general rule.

*1253In numerous cases, the Supreme Court has held that government "need not provide funds so that people can exercise even fundamental rights," see M.L.B. v. S.L.J., 519 U.S. 102, 124-25, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), and that the Constitution " 'generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual!" Id. at 123, 117 S.Ct. 555 (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Holding, however, that "access to judicial processes in cases criminal or 'quasi-criminal > 59 in nature'" may not turn on ability to pay, id. at 123, 117 S.Ct. 555 (quoting Mayer v. Chicago, 404 U.S. 189, 196, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971)), the Court has recognized a narrow category of civil cases in which the State must provide access to its Judicial processes without regard to a party's ability to pay court fees. Id. at 113, 117 S.Ct. 555 (citing Boddie, 401 U.S. at 379, 91 S.Ct. 780)2 Although a " 'precise rationale' has not been composed," id. at 120, 117 S.Ct. 555 (quoting from Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)), the Court's decisions concerning access to judicial processes reflect both equal protection and due process concerns, the former relating to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs and the latter homing in on the essential fairness of the state-ordered proceedings anterior to adverse state action. Id.

These mixed due process/equal protection concerns are addressed by the majority mechanically in terms of the due process balancing test. Apart from the defense of criminal charges, the Supreme Court has invoked procedural due process as a basis for requiring the funding of indigents only to provide them meaningful access to the courts where necessary to preserve important associational rights involving choices about marriage, family life, and the upbringing of children. Id. at 116. Carefully limiting its rationale to the cases before it, see, e.g., Boddig, 401 U.S. at 382, 91 S.Ct. 780 ("[ Wle wish to re-emphasize that we go no further than necessary to dispose of the case before us ...."), the Court has required the government to provide indigents with transcripts, M.L.B., 519 U.S. at 128, 117 S.Ct. 555, and even attorneys, Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), in certain, complex termination of parental rights proceedings. It has required the state to pay for blood grouping tests sought by an indigent defendant where those tests were the only realistic way for him to contest a state-motivated paternity suit. Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981). It has even prohibited the denial of access by indigents to the state process for dissolving marriage, characterizing it as "the exelusive precondition to the adjustment of a fundamental human relationship." Boddie, 401 U.S. at 383, 91 S.Ct. 780.

By contrast, however, the Supreme Court has distinguished the assessment of filing fees in bankruptcy proceedings, Umited States v. Kras, 409 U.S. 434, 98 S.Ct. 681, 34 L.Ed.2d 626 (1973), and appeals from the denial of welfare benefits, Ortwein v. Schwab, 410 U.S. 656, 98 S.Ct. 1172, 35 L.Ed.2d 572 (1973), finding that bankruptcy discharge and increased welfare payments have "far less significance," id. at 659, 98 S.Ct. 1172, and do "not rise to the same constitutional level." Kras, 409 U.S. at 445, 98 S.Ct. 681. Ranking these prescriptions with economic and social welfare legislation generally, see M.L.B., 519 U.S. at 115 n. 7, 117 S.Ct. 555, the Court has found no " 'fundamental interest ... gained or lost depending on the availability of the relief sought by [the complainants]'" Id. at 115, 117 S.Ct. 555 (quoting Ortwein, 410 U.S. at 659, 93 S.Ct. 1172). That being the case, the Court found no due process requirement for the accommodation of those who were incapable of paying the filing fees in those instances.

*1254The monetary interests at stake in a workers' compensation claim, like the property interests at stake in bankruptcy proceedings and welfare claims, are clearly not among the basic associational rights involving familial relations that have been "set apart," id. at 116, 98 S.Ct. 1172, by the Court. Cf. Indus. Claim Appeals Office v. Romero, 912 P.2d 62, 66 (Colo.1996) (receipt of workers' compensation benefits not a fundamental right for purposes of equal protection analysis) (citing Duran v. Indus. Claim Appeals Office, 883 P.2d 477, 482 (Colo.1994)); Yonikus v. Indus. Comm'n, 228 Ill.App.3d 333, 169 Ill.Dec. 386, 591 N.E.2d 890, 893 (1992) (right to judicial review of workers' compensation decision is not fundamental and is not essential to basic notions of due process). In the absence of such a "fundamental interest," or "important associational right," the Due Process Clause of the Fourteenth Amendment simply does not mandate the waiver of otherwise acceptable costs or fees for civil indigents.

Similarly, in terms of the Equal Protection Clause, "the general rule, stated in Ortwein, [is] that fee requirements ordinarily are examined only for rationality," and "tlhe State's need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement." M.L.B., 519 U.S. at 123, 117 S.Ct. 555; see also Ortwein, 410 U.S. at 660, 93 S.Ct. 1172; Kras, 409 U.S. at 446, 98 S.Ct. 631; Culver v. Ace Elec., 971 P.2d 641, 646 (Colo.1999) (applying rational basis standard to claim that workers' compensation act violated equal protection); Pace Membership Warehouse v. Axelson, 938 P.2d 504, 506 (Colo.1997) (same); Romero, 912 P.2d at 66 (same). Filing fees in actions that do not involve fundamental interests or rights have been invalidated only when found to be irrational by serving no purpose other than to deter resort to the courts. See Lindsey v. Normet, 405 U.S. 56, 63-64, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (invalidating double bond that imposed substantial barrier to appeal by evicted tenants, whether indigent or not, and discriminated against a particular class of litigants, where it was "unrelated to actual rent accrued or to specific damage sustained by the landlord," and bore no reasonable relationship to any valid state objective). Where there is any reasonably conceivable set of facts that could provide a rational basis for the fee requirement, however, it must be upheld. See Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 83-85, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988) (upholding state statute imposing 15% penalty against persons who appealed unsuccessfully from money judgments because it did not single out a narrow class of parties but applied to all money judgments; was reciprocal in that it applied to both plaintiffs and defendants; and was not so great as to bear no rational relationship to its goal of discouraging frivolous appeals); see also Fed. Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, 318, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Christie v. Coors Transp. Co., 933 P.2d 1330, 1333 (Colo.1997) ("If any conceivable set of facts would lead to the conclusion that a classification serves a legitimate purpose, a court must assume those facts exist.").

Although different procedures could unquestionably have been devised for challenging the treating physician's findings under Colorado's workers' compensation regulatory scheme, the requirement for an IME is clearly rational and arguably insures that the ultimate decision will rest on highly reliable evidence. Requiring the party seeking the exam to pay for it is an even-handed and rational way to allocate costs, both to insure compensation for the private physicians who perform the exams and to dissuade parties from resorting to expensive reexaminations without justification. There is no suggestion that the fee prescribed by rule is excessive or unrelated to the actual costs of the exam. While the practical effect of the rule may be to make challenges more burdensome, and in some cases perhaps even prohibitively so, much like the filing fees in Kras and Ort-wein, such an effect resulting from the economic cireumstances of particular claimants in no way renders the rule irrational or illegitimate.

As the majority notes, the due process test is flexible, requiring consideration of the private interest that will be affected by official action, the risk of an erroneous deprivation of that interest through the use of existing procedures and the probable value of addi*1255tional or substitute procedural safeguards, and the government's interest in adhering to the existing system. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 321, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). But the Supreme Court has consistently cautioned that "[In applying this test we must keep in mind, in addition to the deference owed to Congress, the fact that the very nature of the due process inquiry indicates that the fundamental fairness of a particular procedure does not turn on the result obtained in any individual case; rather, 'procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exeeptions'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and citing Parham v. J.R., 442 U.S. 584, 612-13, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). By measuring the adequacy of the statutorily afforded process according to its operational effect on particular individuals, based on their current difficulty paying for an IME, I fear the majority not only misconstrues the controlling precedent of the Supreme Court but also opens a floodgate.

The statutory provision is facially neutral, and the majority does not suggest that it is irrational or designed to exclude indigents. Nor does the majority find the existing procedures inadequate because a large percentage of claimants are too poor to take advantage of their hearing provisions.3 Rather the majority concludes, virtually without discussion or explanation, that whenever a claimant's individual financial situation would make the cost of an IME too burdensome for him,4 the state must be considered to have denied that claimant a hearing, in violation of the dictates of procedural due process. Since the majority's holding is independent of the particular interest at stake or constitutionally protected characteristics of the claimant, it presumably extends to anyone who is unable, for reasons involving his personal cireumstances, to take advantage of judicial or administrative process statutorily provided to dispute the deprivation of his property. At the very least, however, it is clear that the majority would consider the personal financial limitations of particular individuals in determining the adequacy of process neutrally afforded all those similarly situated and to the extent that it were found to be inadequate for indigents, require the state to either waive prepayment requirements or provide additional or substitute process solely for them.5

At least as significantly, the majority's solution fails to address, and appears to sanction, the imposition of financial burdens like the one in this case, on the resort to judicial or quasi-judicial process in defense of one's property. Its holding prohibits only the conditioning of access to process upon payment in advance. Nowhere does the majority suggest that imposing the cost of an IME on even indigent claimants would offend due process, as long as they are entitled to a hearing before being required to make pay*1256ment. Whether indigent or not, under this rationale a claimant may be legitimately denied any opportunity to challenge the taking of his property if he is unwilling to incur the additional expense of an IME. And for aught that appears in the majority's opinion, this remains true whether or not he is ultimately vindicated by demonstrating that the treating physician's findings were wrong.6 I see little difference between erroneously depriving someone of his property because he is unable to pay in advance, on the one hand, and erroneously depriving someone of his property because he is unwilling to incur a debt that is burdensome beyond his means, on the other. I find it ironic that the majority is willing to extend the demands of procedural due process to accommodate indigent economic or social welfare claimants but is unwilling to provide them any greater relief than the guarantee of a loan they are unlikely to be able to repay.7

II. Financial Burden on the Right to be Heard

Although I find no justification for the majority's special treatment of indigents in this context, I would nevertheless hold that the regulatory scheme violates the due process rights of any workers' compensation claimant whose benefits are curtailed or reduced by the findings of the treating physician, for the separate reason that it denies him any right to complain or be heard whatsoever, unless he produces, at his own expense, a separate, statutorily prescribed, expert opinion. I would hold that a person may not be deprived of his property by government action without being afforded some opportunity, despite being unable or unwilling to pay for it or to produce any evidence or witnesses other than himself, to object and be heard by a neutral decisionmaker.

A number of courts, in various contexts, have wrestled with the problem of imposing financial burdens or the risk of additional loss as a precondition to access to judicial or quasi-judicial process, quite apart from their operational effect on indigents. See, e.g., California Teachers Assoc. v. California, 20 Cal. 4th 327, 84 Cal.Rptr.2d 425, 975 P.2d 622, 643 (1999) (invalidating statute requiring losing teacher to pay half the cost of administrative law judge as violation of due process on grounds "that any legitimate interest the state may have in conserving resources or discouraging hearings that happen to result in an administrative or judicial decision against a teacher does not outweigh the teacher's strong interest in presenting his or her own side of the case and in invoking the discretion of the adjudicator."); Rankin v. Indep. Sch. Dist., 876 F.2d 838 (10th Cir.1989) (invalidating statute requiring teacher to pay half cost of posttermination hearing on grounds that penalizing exercise of right to due process subjects statute to exacting judicial scrutiny and state lacked compelling interest); Winston v. New York, T59 F.2d 242 (2d Cir.1985) (invalidating statute requiring forfeiture of retirement contributions by teachers dismissed after hearing but not teachers resigning before hearing, on grounds that statute chilled teachers' procedural due process right to a hearing). Although no consistent theory has emerged, it seems clear that the imposition of a cost or additional risk of loss as a precondition to the exercise of a right to defend against governmental deprivation of one's property implicates constitutional guarantees of procedural due process.

Procedural due process imposes constraints on governmental actions that deprive individuals of life, liberty, or property within the meaning of the Due Process Clause of *1257the Fourteenth Amendment. Mathews, 424 U.S. at 332, 96 S.Ct. 893. The regulatory scheme at issue here does not merely have an effect that is in a realistic sense similar to forcing a claimant to defend his interests. Cf. Boddle, 401 U.S. at 376-77, 91 S.Ct. 780 ("Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court."); Streater, 452 U.S. at 10, 101 S.Ct. 2202 (stating that the Connecticut paternity proceedings at issue had quasi-criminal overtones). In light of the Supreme Court's jurisprudence placing the continued entitlement to a benefit among the property interests protected by the Due Process Clause,8 the Colorado Workers Compensation Act sanctions the actual deprivation of property and must therefore afford the process that is constitutionally due its defense.

Since 1991, however, Colorado's regulatory scheme has provided no opportunity for a claimant to be heard on the questions of maximum medical improvement and degree of impairment unless and until he can produce his own expert witness.9 See ch. 219, see. 15, § 8-42-107, 1991 Colo. Sess. Laws 1291, 1309-10. These determinations are initially made by the employer-selected, treating physician, and although termination of medical and temporary disability benefits are direct consequences of his findings, they are only subject to review by a neutral decision-maker if the claimant procures, at his own expense, a separate and (as a practical matter) conflicting medical report, from a medical examiner who has been certified by the state for that purpose. The Colorado scheme not only charges the claimant a fee for the process constitutionally required to deprive him of his property; it actually requires him to produce evidence, from a state-certified expert and at a state-fixed price, before affording him an opportunity to respond in any way or demand justification for a decision depriving him of his property.

Perhaps because due process is a flexible concept that includes consideration of the fiscal and administrative burdens of particular procedures within its calculus, see Mathews, 424 U.S. at 335, 96 S.Ct. 893, the Supreme Court has never expressly identified minimum safeguards that must be provided without cost to an affected party. Its numerous statements about procedural due process, however, cannot be understood to require an opportunity to be heard only for those benefits recipients who are able and willing to pay for it. In the entitlement-to-benefits or so-*1258called "new property" context,10 the Court has expressly held that such individuals have a "right" to be heard, see Roth, 408 U.S. at 569-70, 92 S.Ct. 2701 ("When protected interests are implicated, the right to some kind of prior hearing is paramount."); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of deci-stonmaking when it acts to deprive a person of his possessions."), and that an opportunity to be heard must be "afforded," see Boddig, 401 U.S. at 379, 91 S.Ct. 780 ("[A] State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause."), or "given" to them, see Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 ("We have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.")(quotation omitted); Boddie, 401 U.S. at 377, 91 S.Ct. 780 ("[DJue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard."); Mathews, 424 U.S. at 348, 96 S.Ct. 893 ("The essence of due process is the requirement that 'a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.' ") (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)).

It has repeatedly held that "some form of hearing" is required before deprivation of their property, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) ("[Ilt has become a truism that 'some form of hearing' is required before the owner is finally deprived of a protected property interest.") (quoting Roth, 408 U.S. at 570-71, 92 S.Ct. 2701); Mathews, 424 U.S. at 333, 96 S.Ct. 893 ('This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.") (citing Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)), and that deprivation must be "preceded by" a hearing, see Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 ("An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case." ") (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The language chosen by the Court unequivocally requires the availability of an "appropriate" hearing-not merely a hearing that would be appropriate if the recipient suffering a deprivation were actually willing (and able) to pay for it. Any financial burden imposed by the government upon the exercise of a right to be heard must, at the very least, be factored into the calculus of appropriateness. Whether or not the right to even the barest opportunity to respond could ever be conditioned upon a recipient's willingness to incur additional costs, it is at least clear that the risk of an erroneous deprivation must increase with the likelihood that the costs of otherwise beneficial procedural safeguards will limit resort to them, suggesting the need for additional or substitute procedures. Mathews, 424 U.S. at 335, 96 S.Ct. 893. While the Supreme Court may not have been directly faced with the imposition of a fee as a precondition to any right to be heard in defense of one's property, on occasion it has found the assessment of fees for certain additional or more elaborate procedures acceptable precisely because a sufficient administrative hearing, "not conditioned on payment of any fee," had already been provided. Ortwein, 410 U.S. at 660, 93 S.Ct. 1172 (filing fee upheld for judicial review of reduction in welfare payments where preter-mination hearing had been provided without cost).

The cost upon which a hearing is conditioned in the workers' compensation regulatory scheme is, if anything, even more problematic than a filing fee. While the right to *1259a hearing may require some allegation of factual dispute, see Codd v. Veiger, 429 U.S. 624, 627, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977), the right to be heard in an appropriate form may not be conditioned on the quality of the claimant's evidence. The right to procedural due process is "absolute" in the sense that it does not depend on the merits of a claimant's substantive assertions, Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), or a demonstration of ultimate sue-cess. Loudermall, 470 U.S. at 544, 105 S.Ct. 1487; Fuentes, 407 U.S. at 87, 92 S.Ct. 1983 ("The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing."). It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake. Fuentes, 407 U.S. at 87, 92 S.Ct. 1983.

By conditioning any right to be heard, no matter how slight, on the report of a state-certified expert, the regulatory scheme at issue here falls short, in my view, of the minimal requirements of due process for a combination of reasons. It imposes a substantial financial burden on the exercise of even the barest right to respond, and it does so, not in direct relation to the costs of process, but by conditioning the right to be heard in defense of one's property on acquiring particular evidence. As a practical matter, it may be convenient, and even cost-effective, to condition a claimant's right to defend his property interest upon his ability to produce a state-certified expert, but convenience and cost-effectiveness from the state's perspective do not, in themselves, justify imposing additional costs on the claimant. It is not difficult to envision alternate procedures, permitting the presentation of other relevant evidence, in some format and to some neutral decisionmaker, without the burdensome expense of an IME. See, e.g., Neff v. Comm'r of the Dep't of Indus. Accidents, 421 Mass. 70, 653 N.E.2d 556 (1995) (noting the availability of procedures under the Massachusetts workers' compensation scheme without requiring payment for an IME, including presentation, to an administrative judge, of evidence such as reports of the injury, statements of the employee and other witnesses, medical, hospital, and rehabilitation records, and other oral and written matter). Due process does not permit the deprivation of anyone's property by government action without some right to respond, even if that response involves no more than registering his objections to the taking in an appropriate way, and it is no justification that he would be entitled to the "Cadillac" of hearings if he would only pay for it.

Unlike the majority, I would not find the conditioning of a hearing upon the prepayment and filing of an IME to be valid except as applied to indigent claimants. I would hold that this limitation violates due process as applied to indigents only because it imper-missibly denies a right to be heard to every workers' compensation recipient, whether indigent or not, who is unwilling to incur the additional cost of an independent medical examination. Because I would affirm, although for different reasons, the district court's judgment that the relevant provisions violate the Due Process Clause of the Fourteenth Amendment, I concur in the judgment of the court.

. Unlike the majority, I understand the district court to have declared sections 8-42-107(8)(b)(II), (8)(c) and 107.2(5), 3 CRS. (2000), as well as Rule XIV{L) of the Department of Labor & Employment Rules, facially unconstitutional because of their effect on indigent claimants-not merely unconstitutional as applied to indigent claimants.

. I understand the Court's use of the term "judicial processes" to include not only the process of courts of law but also quasi-judicial or administrative process. See Boddie, 401 U.S. at 375, 91 S.Ct. 780 ("It is to courts, or other quasi-judicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement.").

. While no statistics concerning the percentage of claimants denied a hearing because of indi-gency were available, Whiteside's affidavit indicated that she had only encountered two or three cases (including the present case) in which a claimant seeking indigency status had asked to have the IME fee waived. Interestingly, White-side's affidavit also indicated a yearly average of approximately 40,000 claims, suggesting a known reversal rate for all MMI findings of less than 3%, as contrasted with the 30% of challenged MMI findings, considered significant by the majority. See maj. op. at 1250-1251.

. The majority intends Chief Justice Directive 98-01, which sets standards of wealth and income, to be used to determine when financial status will require the waiver of court filing and service fees in civil cases. See maj. op. at 1242, n. 1. Interestingly, by its own terms, CJD 98-01 does not permit the waiver of expert witness fees in any event. f

. I am aware of the majority's attempt to limit the effect of its holding to the Workers' Compensation Act. Maj. op. at 1248. I can, however, decipher no principled basis for such a limitation unless the majority merely intends to indicate that the outcome of the due process balancing process in this case is limited to the particular rights and procedures of the workers' compensation regulatory scheme balanced here. While that would seem to be clear enough, it in no way limits the general principle to which the majority subscribes-that the Mathews balancing test requires consideration of the ability of particular individuals to take advantage of neutrally provided process in determining whether it is adequate for them.

. The effect of limiting the holding as the majority does is of course not merely theoretical. Although not expressly challenged here, an emergency rule adopted immediately after the district court's initial order was the basis for its refusal to grant injunctive relief, even though the rule would merely provide for advancement of the IME fee, which would still have to be repaid, regardless of the outcome.

. It is also more than a little ironic that if the class representative in this case had requested an IME at the time he filed his objection to the final admission, and for nearly a year thereafter, according to the Department of Labor and Employment Rules as they existed at that time, it appears he would have had the exam paid for by his employer's insurance carrier. See Dep't of Labor & Employment Rule XIV(L)(3)(L), 7 CCR 1101-3 (adopted May 20, 1992; sunset June 1, 1993).

. It is too well-seitled to brook dissent that "property" within the meaning of the due process clause includes an interest that a person has already acquired in specific benefits. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Watso v. Colorado Dep't of Soc. Servs., 841 P.2d 299, 305 (Colo.1992). I agree with the majority that a workers' compensation claimant, at least to the extent that his employer has admitted liability, has a property interest in continuing to receive medical and temporary disability benefits, but I would not dismiss with such short shrift the director's assertion that the entitlement continues only until the treating physician finds MMI. Ultimately, however, I would reject the director's argument because "property" within the meaning of the Due Process Clause cannot be defined by the procedures for its deprivation. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The Supreme Court's recent holding in American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), finding no property interest by Pennsylvania workers' compensation claimants, is not to the contrary because it did not involve entitlement to a claim for payment, but merely a right to particular payments prior to resolution of disputes. See id. at 61 n. 13, 119 S.Ct. 977; see also id. at 62, 119 S.Ct. 977 (Ginsburg, J., concurring in part and concurring in the judgment) ("I do not doubt, however, that due process requires fair procedures for the adjudication of respondents' claims for workers' compensation benefits, including medical care.") (emphasis added).

. The statutory scheme, as it existed prior to 1991, provided that the director and not the treating physician made the determination of whether the claimant reached MMI and his degree of permanent disability. See A & R Concrete Constr. v. Lightner, 759 P.2d 831, 833 (Colo.App.1988) ("'The sole fact that a physician gives a date of maximum medical improvement does not, in and of itself, mean that maximum medical improvement has indeed been attained.... Rather, this issue must be decided by the Director after the parties have had a full and fair opportunity to be heard."); see also § 8-42-110, 3B C.R.S. (1990 Supp.) (dictating that the director shall determine the claimant's percentage of permanent disability).

. See Goldberg v. Kelly, 397 U.S. 254, 262 n. 8, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (relying on Charles A. Reich, The New Property, 73 Yale LJ. 733 (1964), for extension to government benefits of procedural safeguards applicable to traditional property).