In this action (brought initially by appellant Dillard, and in
which appellant Williams was allowed to intervene) Williams claimed
that the Due Process Clause of the Fourteenth Amendment prevented
Virginia from permitting suspension of workmen's compensation
benefits as a result of a claimed change in condition without
notice to the claimant and a prior adversary hearing. The District
Court rejected the constitutional claim on the merits.
Held: If, as indicated in the briefs and oral arguments
in this Court, state law permits a claimant whose benefits have
been suspended to have them reinstated by the state trial courts,
which act in a purely ministerial capacity, pending a full
administrative hearing before the State Industrial Commission on
the merits of his claim, it was probably unnecessary to address the
federal constitutional question. Accordingly, the case must be
remanded to the District Court for reconsideration. Pp.
416 U. S.
784-798.
347 F.
Supp. 71, vacated and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
416 U. S.
799.
Page 416 U. S. 784
MR. JUSTICE POWELL delivered the opinion of the Court.
Appellants seek to establish that, under the Due Process Clause
of the Fourteenth Amendment, Virginia may not permit the suspension
of workmen's compensation benefits without a prior adversary
hearing. A three-judge United States District Court, over one
dissent, rejected appellants' constitutional arguments.
347 F. Supp.
71 (ED Va.1972). We noted probable jurisdiction. 414 U.S. 1110
(1973). Although the parties have focused primarily on the due
process issue, the briefs and oral arguments have indicated that,
under state law, a claimant whose workmen's compensation benefits
have been suspended may have them reinstated by a state trial court
pending a full administrative hearing on the merits of his claim.
If this is an accurate reading of state law, it is, in all
probability, unnecessary to address any questions of federal
constitutional law in this case. Accordingly, the case must be
remanded to the District Court for reconsideration.
I
This litigation has centered on the role of the Industrial
Commission of Virginia (Commission) in overseeing relationships
between workmen's compensation claimants and employers or the
employers' insurance companies.
Page 416 U. S. 785
Although the Virginia system for workmen's compensation is
controlled in all significant respects by an extensive statutory
scheme referred to as the Act, Va.Code Ann. § 65.1-1
et
seq. (1973 and Supp. 1973), [
Footnote 1] it operates in a largely voluntary manner
through memoranda of agreement between disabled workmen and
employers or insurance companies. Compensation is paid out of
private funds, in some cases through self-insurance by employers,
but, for the most part, through coverage by private insurance
companies. All agreements between employees and employers or
insurance companies must be approved by the Commission, which may
extend its imprimatur
"only when the Commission, or any member thereof, is clearly of
the opinion that the best interests of the employee or his
dependents will be served thereby. . . ."
§ 65.1-93.
In most instances, the parties agree voluntarily on entitlement
to benefits. [
Footnote 2] When
this does not occur, the Commission will grant a hearing to resolve
the disagreement, § 65.1-94, and will make an award if found to be
due. § 65.1-96. The Commission's awards are subject to review by
appeal to the Virginia Supreme Court and, if unchallenged, are
conclusive until changed by the
Page 416 U. S. 786
Commission. § 65.1-98. [
Footnote
3] The Commission has no enforcement power
per se.
Rather, the Act provides:
"Any party in interest may file in the circuit or corporation
court of the county or city in which the injury occurred, or if it
be in the city of Richmond then in the circuit or law and equity
court of such city, a certified copy of a memorandum of agreement
approved by the Commission, or of an order or decision of the
Commission, or of an award of the Commission unappealed from, or of
an award of the Commission affirmed upon appeal, whereupon the
court, or the judge thereof in vacation, shall render judgment in
accordance therewith and notify the parties. Such judgment shall
have the same effect, and all proceedings in relation thereto shall
thereafter be the same, as though such judgment had been rendered
in a suit duly heard and determined by the court. . . ."
§ 65.1-100.
The state courts have construed their enforcement duty under §
65.1-100 as purely ministerial. They do not inquire into whether a
claimant's condition continues to justify compensation. Rather,
they simply enforce agreements and awards that have been approved
and not formally rescinded by the Commission. [
Footnote 4] Thus,
Page 416 U. S. 787
a workmen's compensation claimant in Virginia has at his
disposal a ready mechanism in the state trial courts to enforce any
facially valid award or agreement. Since judicial enforcement is a
ministerial act, this relief appears to be available with a minimum
of delay or procedural difficulty.
Termination of benefits due to a change in a claimant's
condition, like the commencement of benefits in the first instance,
is a product of voluntary agreement in most cases. But when a
dispute arises over a claimant's condition and his continued
entitlement to benefits, the only avenue open to an employer for
extinguishing a claimant's enforcement rights under § 65.1-100 of
the Act appears in § 65.1-99.
See Bristol Door Co. v.
Hinkle, 157 Va. 474, 161 S.E. 902 (1932). This section
provides, in relevant part:
"Upon its own motion or upon the application of any party in
interest, on the ground of a change in
Page 416 U. S. 788
condition, the Industrial Commission may review any award and on
such review may make an award ending, diminishing or increasing the
compensation previously awarded. . . . No such review shall affect
such award as regards any moneys paid. . . ."
Va.Code Ann. § 65.1-99 (1973). [
Footnote 5] Although it may be indisputable that a
claimant is no longer entitled to benefits due to a change in his
condition, if the claimant refuses to terminate voluntarily all
award or agreement, an employer or insurer appears to have no
defense against a state court enforcement action until there is a
formal determination by the Commission under this section.
E.g., Manchester Bd. & Paper Co. v. Parker, 201 Va.
328, 111 S.E.2d 453 (1959). [
Footnote 6] If an employer or insurance company meets the
requirements established by the Commission for invoking its review
under this section, the Commission, in due course, will
Page 416 U. S. 789
conduct a hearing, with notice and the right to participate
extended to all parties. [
Footnote
7] At such a hearing, the employer or insurer bears the burden
of proving a change in a claimant's condition that justifies
rescission of an award or agreement.
E.g., Virginia Oak
Flooring Co. v. Chrisley, 195 Va. 850, 80 S.E.2d 537 (1954);
J. A. Foust Coal Co. v. Messer, 195 Va. 762, 80 S.E.2d 533
(1954).
The last sentence of the above quotation from § 65.1-99 prevents
an employer or insurance company from recovering benefits
erroneously paid prior to the Commission's formal termination of an
award or agreement.
See Gray v. Underwood Bros., 164 Va.
34, 182 S.E. 547 (1935). Accordingly, an employer or insurer with
cause to believe that a claimant is no longer entitled to benefits
has an obvious incentive unilaterally to cease payment at the time
it seeks a § 65.1-99 hearing before the Commission. If the
Commission ultimately holds in its favor, the employer or insurer
will not be required to pay any further benefits, and it will have
protected itself against unmerited payments in the period prior to
the Commission's full hearing. If the Commission rules against it,
it will be required to reinstate benefits retroactively to the date
of the application for a hearing, but at least it will have avoided
paying benefits for which there was no true legal obligation.
In order to police this tendency of employers and insurers to
terminate first and litigate later, the Commission promulgated its
Rule 13.
See Manchester Bd. &
Page 416 U. S. 790
Paper Co. v. Parker, supra. [
Footnote 8] Rule 13 sets forth certain requirements
that an employer or insurer must meet, with precision,
see
ibid., before it can obtain the § 65.1-99 hearing which is a
prerequisite to formal termination of an award or agreement on the
ground of change in condition. [
Footnote 9] For example, the Rule requires employers
and
Page 416 U. S. 791
insurers to continue benefits up to a defined date. And since
April 1, 1972, the Rule has imposed the following requirements on
such applications:
"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."
Thus, under Rule 13, as amended, an employer or insurer must pay
benefits up to a certain date, must make application under oath,
and must submit "supporting evidence which constitutes a legal
basis for changing the existing award. . . ." If these requirements
are met, and if the Commission finds that "probable cause exists to
believe that a change in condition has occurred . . . ," the
employer or insurer will be accorded a hearing that may lead to
rescission of the prior award or agreement. If the Rule 13
requirements are not met, the request for a hearing will be denied,
and the award or agreement at
Page 416 U. S. 792
issue will remain subject to enforcement in the state
courts.
II
Appellant Dillard was the original named plaintiff in this class
action under 42 U.S.C. § 1983. He contended that the Due Process
Clause of the Fourteenth Amendment prevented Virginia from
permitting the suspension of workmen's compensation benefits
without notice to the claimant and an adversary hearing at the time
the Commission makes a probable cause determination pursuant to
Rule 13. A three-judge United States District Court, over one
dissent, rejected this argument on the merits.
347 F. Supp.
71 (ED Va.1972). Dillard appealed, but then settled his claim,
and we remanded the case for a determination of mootness.
409 U. S. 238
(1972). In an unreported order, the District Court subsequently
permitted the intervention of appellant Williams and reinstated its
published opinion. Williams then appealed, bringing up the due
process arguments initially espoused by Dillard.
Appellant Williams was injured in the course of employment in
April, 1972. In May, 1972, the Commission approved an agreement
between Williams and his employer's insurance company, one of the
appellees herein, for the payment of weekly compensation benefits.
In October 1972, the insurance company applied under Rule 13 to the
Commission for a hearing to determine whether Williams' disability
had ended. Simultaneously, the insurer discontinued payments.
Within a few days the Commission made an
ex parte
determination that probable cause existed to believe that a change
in Williams' condition had occurred. At this point, Williams made
no effort to petition a state court under § 65.1-100 of the Act to
reinstate benefits pending the Commission's full hearing. In
December, 1972, the Commission
Page 416 U. S. 793
conducted an adversary hearing, concluded that the insurance
company had not met its burden of proof, and reinstated benefits.
On April 17, 1973, the insurance company again petitioned the
Commission, claiming a change in Williams' condition. The
Commission once more found probable cause on an
ex parte
basis, and the company, for the second time, terminated benefits.
Williams again did not resort to the state trial courts for an
enforcement order. Approximately two months later, the District
Court permitted Williams to intervene in this lawsuit and, as
noted, reinstated its published opinion. Williams then brought this
appeal. [
Footnote 10]
Williams' constitutional attack on the Virginia system for
suspending workmen's compensation benefits is premised on the
assumption that Rule 13, as amended, permits an employer or insurer
to shield itself from a state court enforcement suit under §
65.1-100 of the Act in the interim between a probable cause
determination
Page 416 U. S. 794
by the Commission and the Commission's ultimate full hearing
under § 65.1-99 of the Act. Williams, in essence, reads the phrase
of Rule 13 providing that "benefits shall not be suspended" prior
to meeting the requirements of the Rule as meaning that benefits
may successfully be suspended once those requirements have been
met. If this reading of Rule 13 is incorrect, the complexion of
this case changes dramatically, because it is then within the power
of a claimant to reinstate benefits simply by petitioning a state
trial court to perform a ministerial duty. It may well be that this
perfunctory enforcement power is so readily available that a
claimant could render any suspension of benefits
de
minimis. If so, those in appellants' class may not be able to
establish a constitutionally significant injury under any reading
of the Due Process Clause of the Fourteenth Amendment.
Every indication in the record and in the state authorities is
that Williams had at his disposal a state court enforcement right
that he simply failed to utilize.
See n 4,
supra. As the Commission declared in
its motion to dismiss before the District Court:
"Virginia's statutory framework does not authorize the
termination of benefits as alleged by plaintiff; it
permits only the initiation of a procedure by which benefits may
ultimately be terminate. Should plaintiff be dissatisfied with the
temporary cessation of benefits pending an administrative hearing,
he is entitled by the provisions of § 65.1-100 to reduce his award
to judgment in an appropriate court of record and compel the
resumption of benefits. It should be noted that, in such a case,
the court has no discretion, and must enter judgment against the
employer or his insurer."
(Emphasis in original; citations omitted.)
Page 416 U. S. 795
One of the appellees makes the same point in its brief,
[
Footnote 11] and Williams'
counsel conceded at oral argument that, if read literally, §
65.1-100 of the Act permits no other result. [
Footnote 12] Counsel attempted to overcome this
concession by arguing that the Virginia courts have not interpreted
Rule 13 recently, and that they might today hold that the Rule
overrides the language of § 65.1-100. [
Footnote 13] This argument plainly has no merit, since
the Commission is without power to promulgate a rule that would
repeal a section of the Act. [
Footnote 14] Moreover, it is obvious that the Commission
had no such purpose. Rule 13 was designed to protect employees,
see Manchester Bd. & Paper Co. v. Parker, 201 Va. 328,
111 S.E.2d 453 (1959), not to deprive them of rights existing under
the Act. It establishes barriers that an employer or insurer must
surmount before it may obtain the § 65.1-99 hearing that is a
prerequisite to extinguishing a claimant's right to enforce an
award or agreement in state court. The Rule is designed to serve as
a screening device for eliminating obviously unmeritorious
applications for hearings filed by insurers and employers.
[
Footnote 15] It is not an
authorization for an
Page 416 U. S. 796
employer or. insurer to suspend payments with assurance that a
claimant may not have them reinstated under § 65.1-100 of the
Act.
The District Court itself noted that Rule 13 probably does not
permit an employer or insurer to escape § 65.1-100 of the Act.
[
Footnote 16] It reached
appellants' federal constitutional claim only by assuming,
arguendo, "that the Rule is authority for the employer or
insurer to terminate payments. . . ." 347 F. Supp. at 75. Based on
what has been brought to our attention and our review of state law,
such an assumption, in all likelihood, would be inaccurate.
[
Footnote 17] In any event,
that court must resolve any
Page 416 U. S. 797
doubts on the issue before reaching appellants' federal claim.
If there is significant doubt about the status of state law, the
court should consider abstention, as the
Page 416 U. S. 798
state law question may well be dispositive.
E.g., Lake
Carriers' Assn. v. MacMullan, 406 U.
S. 498 (1972). If, as appears to be the case, state law
clearly provided Williams an adequate state court remedy he did not
pursue, then the court will be presented with a wholly different
issue from the one it decided. Assuming it is also established that
the Commission's Rule 13 procedures are necessarily
ex
parte, [
Footnote 18]
then the only question is whether the interruption, if any, of
benefits between the time of suspension and the time a claimant
obtains reinstatement of benefits by petitioning the state courts
is of any controlling significance. If the court determines that a
claimant, as a general rule, may obtain reinstatement of benefits
without undue delay following a finding of probable cause by the
Commission under Rule 13, then the court should dismiss the
complaint.
We indicate no view on the question decided by the District
Court -- whether the suspension of benefits without notice and an
adversary hearing denies due process of law, where the funds at
issue are private, not public, where the State requires a finding
of probable cause and other procedural safeguards short of a prior
adversary hearing, and where a full hearing follows suspension of
benefits by a period on the average of one month. The judgment is
vacated, and the case is remanded for reconsideration in accordance
with this opinion.
It is so ordered.
Page 416 U. S. 799
[
Footnote 1]
The Act defines the relevant employment relationships, §§ 65.1-3
to 65.1-5, types of compensable disabilities, §§ 65.1-7 and
65.1-46, levels of compensation, §§ 65.1-54 to 65.1-57, 65.1-65 to
65.1-65.1, and 65.1-70 to 65.1-71, and the like. Participation in
the Virginia system is mandatory for all employees and employers
covered by the Act. § 65.1-23, as amended. The Act has been in
force since 1918. Its history and general structure are described
in the District Court's opinion.
See 347 F.
Supp. 71, 72-73 (ED Va.1972).
[
Footnote 2]
An
amicus brief indicates that, in the years 1967 to
1971, approximately 95% of all claims for workmen's compensation
were resolved by voluntary agreement. Brief for American Insurance
Association
et al. 10.
[
Footnote 3]
The Virginia Supreme Court accords substantial weight to the
Commission's findings of fact,
e.g., LeWhite Constr. Co. v.
Dunn, 211 Va. 279, 176 S.E.2d 809 (1970), and restricts its
review primarily to questions of law.
Cf. Brown v. Fox,
189 Va. 509, 54 S.E.2d 109 (1949).
[
Footnote 4]
See Richmond Cedar Works v. Harper, 129 Va. 481,
492-493, 106 S.E. 516, 520 (1921):
"Section 62 [the predecessor to § 65.1-100 of the Act] was
clearly enacted for the purpose of providing a means not only of
enforcing an award which had been affirmed on . . . appeal, but
also all other final awards of the commission from which there had
been no appeal, as well as all agreements between the parties
approved by the commission. When this section is invoked, however,
the rights of the claimants have already been established. The
proceeding then resembles a motion under our statute for execution
upon a forthcoming or delivery bond. . . . [A]ll of the rights of
the parties having been previously litigated and determined, the
court is required to render judgment in accordance either with (a)
the agreement of the parties, which has been approved by the
commission, (b) an award of the commission which has not been
appealed from, or (c) an award of the commission which has been
previously affirmed upon appeal. At this stage of the proceeding,
the court is vested with no discretion; the statute is mandatory,
and the refusal to render such judgment as that section requires
could be compelled by mandamus. . . . The order of the court under
section 62 in rendering judgment so that execution may be had is
the exercise of a ministerial function, and the mere method
provided by the legislature for enforcing the collection by legal
process of the amount already legally ascertained to be due. . .
."
Accord, Parrigen v. Long, 145 Va. 637, 134 S.E. 562
(1926).
[
Footnote 5]
Although § 65.1-99 refers specifically to awards, it has been
interpreted as applying also to voluntary agreements that have been
approved by the Commission.
See Manchester Bd. Paper Co. v.
Parker, 201 Va. 328, 111 S.E.2d 453 (1959).
[
Footnote 6]
In the
Manchester case, a claimant and an insurance
company entered into an agreement to pay benefits, which the
Commission approved. The employee then returned to work, rendering
himself technically ineligible for benefits. The insurance company
suspended payments and commenced proceedings leading to a
determination under what is now § 65.1-99 of the Act, but it failed
to adhere precisely to the requirements of the Commission under
that section. One year after the employee returned to work, the
Commission refused to rescind the agreement, concluding that the
insurance company had failed to comply with § 65.1-99 as
implemented by the Commission. On appeal, the Virginia Supreme
Court affirmed. It held that § 65.1-99 was the exclusive statutory
means for rescinding an agreement approved by the Commission, and
that employers and insurance companies failed to follow that
section at their own risk, without regard to the actual status of a
claimant.
[
Footnote 7]
There is no dispute in the instant case that the full hearing
the Commission ultimately conducts before it formally terminates an
award or agreement under § 65.1-99 of the Act satisfies the
requirements of the Due Process Clause of the Fourteenth Amendment.
Appellants' attack has been directed only at suspensions of
benefits prior to the Commission's final hearing.
[
Footnote 8]
The reason for the rule is stated in the opinion of the
Commission as follows:
"'More than thirty years ago, when it was found by the
Commission that some employers were arbitrarily disregarding the
effect of outstanding awards and terminating payments directed by
such awards, [Rule 13] . . . was promulgated. . . . The Rule has
since been continuously in force.'"
201 Va. at 331, 111 S.E.2d at 456.
Rule 13 was promulgated pursuant to the general rulemaking
authority vested in the Commission by the Act. Section 65.1-18 of
the Act provides, in part: "The Commission may make rules, not
inconsistent with this Act, for carrying out the provisions of this
Act." The state courts have held that Rule 13 is a valid exercise
of the Commission's rulemaking authority.
See Manchester Bd.
& Paper Co. v. Parker, supra.
[
Footnote 9]
Commission Rule 13 provides:
"Applications for Review on Ground of Change in Condition. --
Applications for review under § 65.1-99 of the Act must be in
writing and state the ground relied upon for relief. Reviews of
awards on the ground of a change in condition shall be determined
as of the date of the filing of the application in the offices of
the Commission, except as provided in paragraphs two and three
hereof."
"All applications for hearing by an employer or insurer under §
65.1-99 shall show the date through which compensation benefits
have been paid. No application shall be considered by the
Commission until all compensation under the outstanding award has
been paid to the date such application is filed with the
Commission. Except, that, in any case in which the employee has
actually returned to work or has refused employment (§ 65.1-63),
medical attention (§ 65.1-88), or medical examination (§ 65.1-91),
compensation may be terminated as of the date the employee returned
to work or refused employment, medical attention or medical
examination, or as of a date fourteen days prior to the date the
application is filed, whichever is later. In such cases, the
application will be considered and determined as of the date of
return to work, or refusal, or as of a date fourteen days prior to
the date the application is filed, whichever is later. 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."
"All applications for hearing by an employee on the ground of
further work incapacity shall be considered and determined as of
the date incapacity for work actually begins, or as of a date
fourteen days prior to the date the application is filed, whichever
is later."
[
Footnote 10]
State proceedings relating to Williams' entitlement to benefits
continued after he was permitted to intervene in this case. In
September, 1973, following an adversary hearing, the Commission
formally terminated Williams' right to benefits. Williams appealed
the Commission's ruling to the Virginia Supreme Court. On that
appeal, he apparently sought review only of the accuracy of the
Commission's determination that he was no longer disabled. In an
unreported order issued in December, 1973, the Virginia Supreme
Court affirmed the Commission's ruling. Williams then filed a
petition for certiorari in this Court seeking review of the state
court holding. That petition, which is pending, No. 73-6431,
Williams v. Richmond Guano Co., does not raise the same
constitutional arguments that Williams has advanced on this appeal.
Indeed, although the same counsel represented Williams on
certiorari and on the instant appeal, the petition makes no mention
of this case. In light of our disposition of the instant case, we
need not decide whether Williams might have addressed his present
federal constitutional arguments to the Virginia Supreme Court on
its review of the final order of the Commission.
[
Footnote 11]
See Brief of Appellee Aetna Casualty and Surety Co.
5:
"Applicants usually cease paying compensation at the time they
file the application based on a change of condition, but the actual
award is changed only by order of the Commission following a full
hearing or agreement of the parties. Although the award speaks in
terms of continuing 'during incapacity,' incapacity can be
challenged only before the Commission. Therefore, the employee can
enforce payments even after the Commission finds 'probable cause'
to believe a change has occurred and schedules a hearing, just as
he can enforce an award against a recalcitrant employer who
suspends payments without probable cause."
[
Footnote 12]
Tr. of Oral Arg. 53.
[
Footnote 13]
Id. at 52, 53, 55
[
Footnote 14]
See n 8,
supra.
[
Footnote 15]
The Commission states that the purpose of Rule 13 is to require
employers and insurers
"to submit sufficient information to the Commission of the
ultimate merit of the suspension that the possibility of
fraudulent, frivolous or arbitrary suspensions is eliminiated
[
sic] and the likelihood of suspension in non-fraudulent,
but otherwise non-meritorious, cases is minimized."
Motion to Affirm 3. An
amicus brief indicates that, in
about one-third of all Rule 13 applications, the Commission finds
no probable cause, and thus does not permit employers or insurers
to have a § 65.1-99 hearing. Brief for American Insurance
Association
et al. 14.
[
Footnote 16]
The court declared:
"Nowhere in the Rule does it authorize or direct the employer or
insurer to cease payments before a full hearing. It merely provides
the Commission will not hear the petition of the employer or
insurer asserting any change in condition if payments under the
award have not been made up to the date the application is deemed
filed, with an admonition that benefits
shall not be
suspended until the supporting evidence submitted with the petition
has been reviewed and it is determined probable cause exists to
believe a change has occurred, and if a finding of probable cause
is made, the application will then be deemed filed. Here again, it
does not authorize or direct suspension of payments, but merely
provides the insurer or employer may not have a hearing on an
alleged change of condition unless and until the provisions of the
Rule are complied with."
347 F. Supp. at 775 (emphasis in original).
[
Footnote 17]
There is also a question in the record whether a probable cause
determination by the Commission under Rule 13 is necessarily
ex
parte and whether a claimant is, in fact, denied notice of
such a proceeding. The District Court noted this at the outset of
its opinion:
"The determination of 'probable cause' is to be made from an
examination of 'supporting evidence which constitutes a legal
basis' for changing the existing award. Nowhere does the Rule say
the determination may be made without notice to the employee and a
chance to be heard. The mere fact that such an inference may exist
-- a determination without notice to the employee and an
opportunity to be heard -- does not render the language
objectionable on its face. . . . The [April 1, 1972] amendment to
the Rule is new, and the evidence does not indicate what the
Commission will require in the way of supporting evidence to
constitute a legal basis for establishing probable cause to believe
a change in condition has occurred."
347 F. Supp. at 75 (citation omitted). Moreover, we were
informed at oral argument that, as a matter of practice, insurance
companies and the Commission regularly inform claimants that a
probable cause determination is pending. Tr. of Oral Arg. 43-44. It
was also asserted that the Commission would take into account
submissions by a claimant when it makes a probable cause
determination.
Id. at 44. An
amicus brief
indicates that:
"An employee may, under the present Rule 13, file a written
statement or submit evidence opposing the probable cause
determination. However, in fact, this rarely occurs, because the
employee normally does not have access to the employer's evidence
and because the Commission acts rapidly without waiting to receive
any submission from the employee. (However, if an employee does
send in information even after probable cause is found, the
Commission will evaluate the information. If the information
indicates that payment should not be suspended, the Commission
informs the carrier, and the carrier then continues payments to the
claimant)."
Brief for American Insurance Association
et al.
13-14.
If a claimant receives notice of a Rule 13 application, and if
the Commission will receive and evaluate his counter-affidavits or
medical evidence, the constitutional challenge to the Virginia
system would arise in a different light even if no recourse to the
state courts were available under § 65.1-100 of the Act. As it did
with regard to the question of the impact of Rule 13 on a
claimant's right to reinstate benefits by resort to the state trial
courts, the District Court bypassed this question of state law. It
"assum[ed] that the Rule does not provide for notice and a hearing
to the employee prior to termination of the award. . . ." 347 F.
Supp. at 75. The court should have resolved its doubts on this
issue before addressing appellants' federal constitutional
argument.
[
Footnote 18]
See n 17,
supra.
MR. JUSTICE DOUGLAS, dissenting.
This case involves a class action brought on behalf of all
persons who, as a result of sustaining empoyment-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 "on 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
Page 416 U. S. 800
and opportunity for all parties to be heard, satisfies the
requirements of due process. 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.
I 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 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
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."
347 F. Supp. at 81.
Page 416 U. S. 801
The 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.