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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LLOYD WELDON, D.O., §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-516-BE

§

TEXAS WORKERS’ COMPENSATION §

COMMISSION, et al., §

DEFENDANTS. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Motion for Summary Judgment, filed October 3,

2003. Having reviewed the arguments, evidence of record, and the substantive law, the Court finds

that Defendants’ Motion for Summary Judgment should be granted.

A. HISTORY

In 2001, the Texas Legislature overhauled the state’s workers compensation system, and in

compliance with the changes, the Texas Workers’ Compensation Commission amended the rules

governing the Commission’s Approved Doctor List (the ADL). Except in emergency situations, a

doctor must be on the ADL to provide health care services to injured workers in the Texas workers’

compensation system and receive payment for those services. Tex. Labor Code Ann. § 408.023

(Vernon Supp. 2005); 28 Tex. Admin. Code § 180.20(a). Until August 31, 2003, all licensed doctors

in Texas were automatically included on the ADL, but effective September 1, 2003, any doctor

desiring to be on the ADL was required to reapply and obtain the Commission’s approval. 28 Tex.

Admin. Code § 180.20(a). Temporary exceptions were extended to doctors so that they could

provide health care services to injured workers while the Commission reviewed the applications

submitted for admission to the ADL. 28 Tex. Admin. Code § 180.20(e). 

 

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Lloyd Weldon is an osteopathic doctor, Texas License # E6947. (Def. Mot. Summ. J., App.

E). On December 13, 2002, the Texas Board of Medical Examiners suspended Weldon’s license

to practice medicine, but stayed that suspension and placed Weldon on probation for ten years. (Def.

Mot. Summ. J., App. A). 

Weldon applied for admission to the ADL on August 22, 2003 and was granted Temporary

Exception Status beginning September 1, 2003. (Def. Mot. Summ. J., App. B, D). By letter dated

April 13, 2004, the Commission notified Weldon that it was recommending denial of his application

because of the suspension of his medical license in 2002. (Def. Mot. Summ. J., App. E, F). Weldon

was allowed to respond in writing, (Def. Mot. Summ. J., App. G), but the Commission ultimately

denied his application on May 13, 2004. (Def. Mot. Summ. J., App. H).

Weldon filed a civil action in the Northern District of Texas on July 13, 2004 against the

Commission, its executive director, and the physician who headed up the Medical Quality Review

Panel that denied Weldon’s application. Weldon alleges that he was denied equal protection and

due process of law as guaranteed by the United States and Texas Constitutions because he was not

given a hearing before or after the Commission issued its decision. He also asserts that the

Commission’s amended administrative rules governing the ADL conflict with provisions in the

Texas Labor Code that provide for a hearing. (Plf. Orig. Compl., ¶¶ 8.1-8.33). Weldon seeks

declaratory relief and a permanent injunction. 

B. THRESHOLD ISSUES

Pending before the court is a motion for summary judgment filed October 3, 2005 by the

Texas Department of Insurance, Division of Worker’s Compensation, as well as the Commissioner

of the Division of Workers’ Compensation and William Nemeth. Weldon has filed no response to

 

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the motion, but objects to the motion on the basis that the Texas Department of Insurance is a nonparty and that any determination of the motion should be stayed until at least February 28, 2006.

The Texas Legislature abolished the Texas Workers’ Compensation Commission effective

September 1, 2005 and directed that all rights and responsibilities of the Commission be transferred

to the Texas Department of Insurance, Division of Workers’ Compensation no later than February

28, 2006. See generally Tex. Labor Code Ann. § 402.001 historical note (Vernon Supp. 2005). 

Weldon fails to demonstrate that the motion for summary judgment is invalid because it is

filed by a successor entity instead of a nonexistent entity. For ease of reference in disposing of the

summary judgment motion, however, the Defendants will be collectively referred to as “the

Commission.”

Weldon alternatively asserts that the case should be stayed pending the implementation of

new rules promulgated by the commissioner of workers’ compensation, which may or may not moot

his case. However, Weldon’s complaint challenges rules implemented by the Commission in 2001,

which remain in effect until such time as they are superseded by rules to be adopted by the

commissioner. See id. Staying this action is unnecessary for a full and fair resolution of the parties’

present dispute.

C. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The court

views all of the evidence and inferences therefrom in the light most favorable to the nonmovant.

 

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Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). 

The movant bears the initial burden of showing that no genuine issue of material fact exists, but

once the movant makes such a showing, the burden shifts to the nonmovant to produce competent

summary judgment evidence of the existence of a genuine issue of material fact. Anderson, 477 U.S.

at 256-57, 106 S.Ct. at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a

reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is

material if its resolution would affect the outcome of the suit under the governing law. Id. 

D. DISCUSSION

1. Eleventh Amendment 

The Commission asserts that the claims against it and its employees or agents are barred

by the Eleventh Amendment, which provides:

The Judicial power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI. Although the express terms of the Amendment do not bar suits against a

State by its own citizens, the United States Supreme Court has consistently found that an

unconsenting State is immune from suits in federal court brought by her own citizens as well as

citizens from other States. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104

S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347,

1355, 39 L.Ed.2d 662 (1974). This is a jurisdictional bar that applies regardless of the nature of the

relief sought. Pennhurst, 465 U.S. at 100-01, 104 S.Ct. at 908-09. 

There is an exception to sovereign immunity in that the Eleventh Amendment does not bar

a federal court from granting prospective injunctive relief against state officials who are found in

violation of federal law. Ex parte Young, 209 U.S. 123 (1908); Aguilar v. Texas Dept. of Criminal

 

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 The relevant factors include (1) whether state statutes and case law characterize the agency as an arm of

the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the

entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has the authority

to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. Id. 

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Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). However, relief for violations of state law or

retroactive relief for any violation of federal law by state officials remains unavailable. Pennhurst,

465 U.S. at 102-03, 106, 104 S.Ct. at 909, 911; Edelman, 415 U.S. at 664-65, 94 S.Ct. at 1356-57.

 Weldon has filed no response to the motion for summary judgment and does not dispute

that the Commission and the newly created Division of Workers Compensation in the Texas

Department of Insurance are arms of the state and governed by an expansive state statutory scheme.

See generally Tex. Labor Code Ann. § 402.001 et seq. (Vernon 1996 & Supp. 2005). Absent any

dispute, the court deems it unnecessary to analyze the Commission’s undisputed status under the sixfactor test identified by the Fifth Circuit in Minton v. St. Bernard Parish School Bd, 803 F.2d 129,

131 (5th Cir. 1986).1

 However, the court notes that even a cursory inventory of the Commission’s

origins and duties favor a finding of state arm status. In addition, the United States District Court

for the Northern District of Texas has previously recognized the Commission as an arm of the state

for purposes of a dispute related to diversity jurisdiction. See Ogundipe v. Texas Workers’ Comp.

Comm’n, 2003 WL 21145580 at *1 (N.D. Tex. April 24, 2003)(Magistrate Judge report and

recommendation), adopted 2003 WL 21488152 (N.D. Tex. May 14, 2003).

The Eleventh Amendment bars all claims Weldon has asserted against the Commission.

Claims against the named state officials based on state law or which seek retroactive relief are

similarly barred. 

2. Due Process and Equal Protection Guarantees

 

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 Weldon’s request appears to be inaccurate as he was not removed from the ADL. He was denied

admission to the ADL. The court will construe his request for relief as a request that his application be re-opened

due to the lack of a hearing before the Commission rendered an adverse decision.

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Weldon asks that the court enjoin the enforcement of the order removing him from the ADL2

and prohibit Commission officials from removing other health care providers from the list without

conducting a hearing in accordance with due process guarantees in the Fifth and Fourteenth

Amendments. He contends that he has been denied both a property interest and a liberty interest

without due process.

The procedural component of the Due Process Clause requires states to provide a

constitutionally adequate process before depriving an individual of life, liberty, or property.

Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Procedural due

process claims require a two-part analysis: (1) whether the plaintiff has a liberty or property interest

that is entitled to procedural due process protection; and (2) if so, what process is due to sufficiently

protect that interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71

L.Ed.2d 265 (1982); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct.

2701, 2705, 33 L.Ed.2d 548 (1972). 

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Court stated

that a due process analysis considers the following factors: First, the private interest that will be

affected by the official action; second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;

and finally, the Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail. Id. at

335, 96 S.Ct. at 903. A review of these factors demonstrates that there are no genuine issues of

 

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material fact that would preclude summary judgment in favor of the Defendants.

Weldon contends that the right to practice medicine under an administrative program that

provides reimbursement for the treatment of injured workers is a property right or privilege subject

to due process protections. (Plf. Compl. ¶ 8.3). He also complains that excluding him from the

ADL has restricted his business opportunities and impugned his reputation, thus denying him a

liberty interest. (Plf. Compl. ¶ 8.7). 

To have a property interest in a benefit, a person must have more than an abstract need or

desire for it, and must have more than a unilateral expectation. Board of Regents of State Colleges

v. Roth, 408 U.S 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). He must have a legitimate

claim of entitlement. Id. Professional licenses can be the subject of a property interest subject to

due process requisites. Leland v. Mississippi State Bd. of Registration for Professional Engineers

and Land Surveyors, 841 F. Supp. 192, 198 (S.D.Miss. 1993). The right to hold specific private

employment and follow a chose profession free of unreasonable government interference may also

state a liberty interest subject to due process protections. Vander Zee v. Reno, 73 F.3d 1365, 1370-

71 (5th Cir. 1996).

However, Weldon has not been denied the right to practice his profession as a doctor. He

has been denied admission to an administrative program designed to facilitate treatment of injured

workers in Texas. Weldon remains free to practice medicine and treat patients outside the workers’

compensation program. Merely because government may not unreasonably interfere with a person's

right to practice his profession does not mean that it must pay him to practice it. Sandefur v. Cherry,

718 F.2d 682, 688 (5th Cir. 1983). 

Even assuming a property or liberty interest is implicated, Weldon fails to demonstrate that

 

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the process that was provided to him was insufficient. Weldon was denied admission to the ADL

due to the suspension of his medical license. Weldon could not have advanced his position by

having a hearing because license suspension presents a mandatory ground for denial under the

Commission’s rules for admission to the ADL. See Tex. Admin. Code §§ 180.20(f), 180.26(b)(4).

Weldon was given notice of the Commission’s decision to deny his application and took advantage

of the opportunity to respond by letter. See Tex. Admin. Code §§ 180.20 (g)(2), 180.27(f). He has

not shown that there was additional information he could have provided at a hearing that could not

be presented in a written response. The only material issue for purposes of the ADL list was

whether Weldon’s medical license had been suspended or not, and that fact was established by the

order of the Board of Medical Examiners in 2002. See Bell v. Texas Workers Compensation

Comm’n, 102 S.W.3d 299, 302-03 (Tex. App.–Austin 2003, no pet.)(noting that physician’s removal

from list was not discretionary once it was determined that his license had been suspended, although

that suspension had been stayed and probation imposed). Due process does not require holding a

useless hearing when there are no factual disputes to resolve. See Gilbert v. Homar, 520 U.S 924,

933, 117 S.Ct. 1807, 1813, 138 L.Ed. 590 (1997).

The governmental interests at stake similarly favor the state. The Constitution does not

guarantee an unrestricted privilege to engage in a particular profession or a privilege to conduct a

business as one pleases. Nebbia v. People of State of New York, 291 U.S. 502, 527-28, 54 S.Ct. 505,

511-12, 78 L.Ed. 940 (1934); Hawkins v. Agricultural Mktg. Serv., 10 F.3d 1125, 1133 (5th Cir.

1993). Furthermore, the State has a legitimate interest in maintaining the quality of medical care

provided within its borders. Bigelow v. Virginia, 421 U.S. 809, 827, 95 S.Ct. 2222, 2235 (1975);

Barsky v. Board of Regents, 347 U.S. 442, 451, 74 S.Ct. 650, 655, 98 L.Ed. 829 (1954). 

 

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The Texas Legislature has vested the Commission with authority to develop a list of doctors

approved to provide health care services under the workers’ compensation program. See Tex. Labor

Code Ann. § 408.023(a) (Vernon Supp. 2005). In accomplishing the task, the Commission has

determined that doctors shall be denied admission to the ADL for any reason that would support

their removal from the same list. Tex. Admin. Code § 180.20(f). The Commission’s determination

that license suspension, regardless of whether that suspension is subsequently stayed or probation

imposed, is a mandatory ground for exclusion from the ADL that warrants only limited procedural

protections is not an arbitrary or capricious decision for purposes of due process analysis. Cf. Emory

v. Texas State Board of Medical Examiners, 748 F.2d 1023, 1026 (1984)(finding that Plaintiff had

failed to demonstrate that Boards’ disciplinary scheme or application thereof was irrational).

Assuming that Weldon has a liberty or property interest at stake, he has been awarded at least as

much due process as the Constitution requires.

It is ORDERED that Defendants’ Motion for Summary Judgment is granted. 

 It is ORDERED that Plaintiff’s Objection to Defendants’ Motion for Summary Judgment is

overruled. 

SIGNED DECEMBER 6, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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