?other purposes, at the instance of counsel for plaintiff. however, the right to object to the testimony of the witness on Vthe grounds of incompetency, IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION EILEEN W. HARRISON, VS. NO. ELDON F. COFFMAN, Individually acting and in His Official Capacity as the Chairman of the Arkansas Workers' Compensation Commission, and MICHAEL K. WILSON, Individually acting under the Color of State Law and in His Official Capacity as a Commissioner of the Arkansas Workers' Compensation Commission, DEFENDANTS. DEPOSITION OF ELDON F. COFFMAN Produced, sworn, and examined in the offices of Williams and Anderson, 111 Center Street, Suite 2200, Little Rock, Arkansas, commencing at 2:15 on Tuesday, September 14th, 1999, in the above-captioned cause now pending in the United States District Court, Eastern District of Arkansas, Western Division; said deposition being taken pursuant to provisions of the Federal Rules of Civil Procedure, for discovery and all It is stipulated and agreed that all forms and formalities as to the taking, transcribing, certification, excepting signing of said deposition in this action are hereby waived; irrelevancy and immateriality is expressly reserved, other than as to the form of questions as KAY BUTLER, CCR, CVR (501) 868-8134 propounded to the witness, and may be hereinafter asserted if and when presented at the trial of this cause without the necessity of noting same at the time of taking of said deposition. A A A S: ON BEHALF OF PLAINTIFF: JOHN T. LAVEY, Esquire LAVEY BURNETT 904 West Second Street Little Rock, Arkansas 72203-2657 JANET L. PULLIAM, Esquire PULLIAM WRIGHT 401 W. Capitol Avenue, Suite 509 Little Rock, Arkansas 72201 ON BEHALF OF DEFENDANTS: LEON J. HOLMES, Esquire WILLIAMS ANDERSON 111 Center Street, Suite 2200 Little Rock, Arkansas 72201 TIMOTHY GAUGER, Esquire OFFICE OF THE ATTORNEY GENERAL 323 Center Street, Suite 200 Little Rock, Arkansas 72201 ALSO PRESENT: EILEEN W. HARRISON MICHAEL K. WILSON KAY BUTLER, CCR, CVR (501) 868-8134 I Page Caption . . . . . . . . . 1 Stipulations . . . . . . . . 1 Appearances . . . . . . . . 2 Index . . . . . 3 Exhibits . . . . . . . . 3 Examination by Mr. Lavey . . . . . 4 Reporter's Certificate . . . . . 83 Signature Page . . . . . 84 Errata Sheet . . . . . . . 85 I I MARKED ADMITTED Plaintiff's Exhibit 1 . . Off Record 53 Copy of a page from "The Insider" Plaintiff's Exhibit 2 . . Off Record 48 Opinion Filed July 14, 1997 Plaintiff's Exhibit 3 . . Off Record 48 Opinion Filed May 15, 1998 KAY BUTLER, CCR, CVR (501) 868-8134 APPENDED Little Rock and the mailing addresses is P. O. Box 950. And I gave you the telephone, the telephone is 501-324-9560. Were you present during the deposition of Mr. Wilson? A Yes. And you made notes during his deposition? A Yes. And also, you're a lawyer so you know what depositions are about? I THEREUPON, ELDON F. COFFMAN, having been called for examination by counsel for plaintiff and having been first duly sworn by the undersigned notary public, was examined and testified as follows: EXAMINATION BY COUNSEL FOR PLAINTIFF BY MR. LAVEY: Would you, please, state your name. A Eldon F. Coffman. Would you, please, give me your residential address and residential telephone number. A Residential address is 7007 Riviera, R-I-V-I-E-R-A, Drive, Fort Smith, 72903. The telephone is 501-452-0549. Would you give me your business address and business telephone number? A On the 26th floor of the Regions Bank Building here in KAY BUTLER, OCR, CVR (501) 868-8134 Yes. And if, in fact, I ask you a question and it's a bad question, please ask me to clarify it. Also at any time during the deposition if I ask you a question and you feel you want to consult with your attorneys, please feel free to do so. And also if I start speaking fast or what-have-you and you can't understand me, just tell me to slow down or repeat the question. MS. PULLIAM: I can't imagine that Jack would talk fast. That's just in case. BY MR. LAVEY: just raise your hand, you And then, if you need a break, know, that kind of thing. MR. HOLMES: He picked up that drawl from Smackover. Smackover, Arkansas. MR. LAVEY: Yeah, right. BY MR. LAVEY: Are you on any medication, sir? A No. Is there any reason why we cannot go on with your deposition? MR. HOLMES: Let him finish his question. Don't answer before he speaks. I know you know what the question is going to be, but let him complete his question before you answer. KAY BUTLER, CCR, CVR (501) 868-8134 MR. LAVEY: MR. HOLMES: question before you answer. THE WITNESS: Right. BY MR. LAVEY: I object to those instructions. No. Let him give the complete his Briefly, what is your date of birth? A 12-18-27. And briefly, would you, please, give me, like, your educational background and what-have-you up until your appointment to the Commission as Chairperson. A I attended schools at Russellville Arkansas, in the Army, and then attended Arkansas Tech, later went to Arkansas Law School here in Little Rock, and practiced law for thirty years, and was appointed Chairman of the Commission in December 1996. And what year did you graduate from UALR Law School, sir, approximately? A 1965. Okay. MR. HOLMES: I'm going to object to the form of the question, because it wasn't UALR Law School then, was it? MR. LAVEY: No, it wasn't. THE WITNESS: there. KAY BUTLER, CCR, (501) 868-8134 Later, they sent a diploma from CVR had some time MR. LAVEY: Right, exactly. And during the period of time you practiced law, what kind of law did you practice, please, sir? A Primarily insurance law, both civil litigation and workers' compensation. And regarding insurance law, would you be representing insurance companies or employers? A Probably about sixty percent of the time. Okay. And on December 19 of 1996, you were appointed Chairperson of the Commission; is that correct? A Yes. And who appointed you? A Governor Huckabee. That is a six?year appointment; it that correct? A Yes. Now, regarding your appointment by Governor Huckabee, again, the Arkansas Self?Insurance Association, which I'm going to refer to as ASIA, did they lobby on your behalf to get you appointed, to get you through and appointed to the Chairpersonship of the Commission? A Not that I know of. Did the Chamber of Commerce lobby for you? A Not that I know of. Like, if you know, who recommended you to Governor Huckabee? KAY BUTLER, CCR, CVR (501) 868-8134 Right. Have you ever seen any articles on the corporation of ASIA A No. And do you know Steve Carter? I've met him. A I've been told that Alan Hughes, for example, did. And he's the president of the State is that correct? A Yes. And who along with Alan lobbied for you or recommended if you know? A I really don't know. Okay. Now, in terms of ASIA, do you know what ASIA is? A Yes. And it's primarily made up of self-insurers; is that correct? A Yes. Such as Wal-Mart and Tyson; is that correct, among others? A You know, I don't know, for example, if they are members of ASIA, but I know that Asia is an organization that represents self-insurers. And Steve Carter, is a lawyer for Wal?Mart; if you know, is that correct? A He has some position with Wal-Mart handling their claims, and I think he?s a lawyer. KAY BUTLER, OCR, CVR (501) 868-8134 .Commission and its operations? Okay. And also, do you know if he is a registered lobbyist for Wal?Mart? A I don't know that. Okay. Now, do you know Mike Pickins? A Yes. And who is Mike Pickins? A He's the Insurance Commissioner. Do you know Marcus Devine? A Yes. And he was the liaison person for the Governor's office to the Workers' Compensation Commission; is that correct? A For a period of time. Do you recall the approximate period, certainly, from about January 1 of '97 up to just recently; recently being two or three months ago? A No, I don't believe he became our liaison until probably the middle of 1997, and he, I think, has been gone now, oh, probably four or five months seems like. Okay. And while Marcus Devine was the liaison person for the Governor's office to the Workers' Compensation Commission, did you have contact with him? A Yes. And would you have discussions with him about the A Yes. KAY BUTLER, CCR, CVR (501) 868-8134 'what was going on at the Commission. He might just drop by and 'he might visit or have a cup of coffee or have lunch. 10 And as best you recall, it was sometime like-mid 1997 that he became a liaison person? A Yes. To approximately three or four months, five months ago? Three or four months ago. A Approximately. And during that period of time, would you have discussions with Mr. Devine about the operation of the Commission? A To some extent. Okay. And when you had these discussions with Mr. Divine, would it just be you and him or would there be other people present? A Usually, it would just be the two of us. Either in your office or up in the Governor's office? A Usually in my office. Okay. And about how often, we'll say, from mid?'97 up to the time you went over to DHS, would you meet with Mr. Devine to discuss the operations of the Commission; approximately, ballpark? A Probably, and this is approximate, five or six times. Starting -- sorry. A And they wouldn't necessarily always be discussions about And when you met with him at any of these five times KAY BUTLER, COR, CVR (501) 868-8134 you've made reference to; number one, did you ever discuss the opinions being written by the Administrative Law Judges for the Workers' Compensation Commission? A I believe there may have been a discussion or discussions about complaints that the Governor's office had received. Okay. And were these verbalized to you orally or were they in written form and you were given copies of written complaints or both? A I do not remember ever receiving anything from him in writing. So it was oral? A Yes. And what kind of complaints would Mr. Devine verbalize to you? If you could categorize them, if you would, please. A The big complaints we had when I came with the Commission is the delay in getting the decisions out, and that's what most of our discussions were about. Okay. And anything else? A Not that I recall. And when you came on board in December of '96, was Gary Shelton still the Chief? NO. By that time, Dave Greenbaum was? A A Now, you're talking about the Chief Yes, Chief ALJ. KAY BUTLER, CCR, CVR (501) 868-8134 Dave Greenbaum, And if you know, how long had Gary Shelton been gone, you know? A I do not know. Okay. the ALJs were behind, up, because of the reign of Gary Shelton behind? A I really don't know what brought it heard that before, was behind. And there was going to be an effort to this is what Marcus Devine is verbalizing to you; is that correct? A Well, Right. straightened out? A Yes. Any other complaints that he verbalized to you during those meetings you had with him that you've already made reference to? yes. And at that particular time, but I do know that as and I'd heard that from the Governor and others too. And in the process of trying to get that A Not that I recall. Now, regarding the period of time from, oh, we'll say July 1 of isn't it true that the Governor's office was reviewing the '97 up to August 19 of 1998, opinions of Judge Harrison? KAY BUTLER, CCR, (501) 868-8134 and you had to get during that period of time 12 if do you recall if all them all to get caught where everybody got about and I never even a whole the Commission CVR knowledge, they were not reviewing the decisions of Judge Harrison. Are you familiar with the Rule, Arkansas Workers' Compensation law letter or something that Ken Parker prints? Generally, right. A Okay. I would send a copy of that every month to Marcus Devine, and that would be his knowledge of the decisions. Basically, would that be; number one, decisions of the Full Commission? A Yes. Okay. But I am specific, would they also have in there the decisions of the A Not that I'm aware of. And my question to you, sir, is: If you know, is it not a fact that the Governor's office was reviewing the decisions of Judge Harrison from on or about July 1, '97, up to and including the date of her discharge? A If they were, I was not aware of it. During the period of time -- during the period of time that he was the liaison, other than when you've testified to about the complaints and about the caseloads of the ALJs, did you discuss anything else with him? A There were complaints about me. And the complaints to Mr. Devine or the Governor's Okay. office about you was because of your written opinions? KAY BUTLER, CCR, CVR Yes. And were the complaints because you were siding too often, or deciding decisions in the majority with Commissioner Humphrey? A No. What were the complaints about you. A That there was a feeling that there were some decisions that were what was referred to as eroding Act 796. Okay. And regarding that, were there complaints regarding the roving, [sic], Act '96, were those made by ASIA against you? A I do not know specifically who they were coming from. And regarding the so-called decisions about roving, [sic], Act 796 did Mr. (THEREUPON, a brief conversation was held off the record between Mr. Lavey and Ms. Harrison.) BY MR. LAVEYEroding. Thank you. I apologize, that was my fault. A Okay. Okay. Eroding and regarding the erosion of Act 796, there were complaints lodged about you; is that correct, also? A Yes. And were those complaints lodged against you by Steve KAY BUTLER, can, CVR (501) 863-8134 Carter? A I feel that he was one of the persons. And who else was lodging complaints against you? A It's my understanding that Mr. Carter and Mr. Walmsley are co-chairpersons of the State Chamber of the Workers' Compensation Committee, and I think that they may not be the ones that lodged it, but since they were the co-chair people they're the ones I heard from. Okay. And did you ever see any correspondence at all from, we'll say, Mr. Walmsley to the Governor's office complaining about you? A I never actually saw any correspondence. Did Marcus Devine ever verbalize to you that regarding the complaints either from Mr. Walmsley or from Steve Carter they were that, again, you were siding with the Labor Commissioner too often? The Labor Commissioner being, obviously, Commissioner Humphrey? A Well, that was probably the end result that they felt like that I was ruling in favor of the plaintiff, that I should have ruled in favor of the respondent. And was ruling in favor of claimants too often? A Well, not necessarily too often, but in specific cases. Did Marcus Devine ever verbalize to you that you and Labor Commissioner Humphrey were eroding Act 796? A He never mentioned the Commissioner. KAY BUTLER, OCR, CVR (501) 868-8134 Did Mr. Walmsley ever verbalize that to you? A He didn't verbalize it. Did he write it to youwrite it to? A He did what was titled "Analysis of Opinions," and or I'm told he did it, and he listed a bunch of my opinions, which he analyzed and criticized. I And he criticized you? A He didn't mention my name, but it was obvious. And also, if you know, in those written critiques by Mr. Walmsley, he was certainly applauding the vigorous dissents by Commissioner Wilson? A I believe that's correct. And regarding those complaints, were they made, oh, starting in July, August, September of 1997; regarding you and co-authoring opinions with Labor Commissioner Humphrey with Commissioner Wilson dissenting? A It's my recollection it was in the fall of 1997. And did that, in fact, continue the critique of you 'until -- to and including sometime during the week of April 27 of 1998? I don't know when it stopped. IQ Do you recall -- (THEREUPON, a brief discussion was held off the KAY BUTLER, CCR, CVR (501) 868-8134 And are you saying after that meeting with Steve Carter that you're still writing the opinions the same way? 1% record between Mr. Lavey and Ms. Harrison.) BY MR. LAVEY: Now, do you recall having a meeting with Steve Carter sometime during the week of -- approximately, the week of April 27 of 1998? A Approximately, I'm not sure about the date. Right. And it was just you and Steve Carter; is that correct? A Yes. And where was it; in your office? A No, it was at Bentonville. Okay. And when you had that conversation with him at that time, isn't it true that he put his finger in your face and said, "Because of your written opinions, you should quit as Chairperson."? A Yes. And when he said that to you, what did you say to him? A I don't think I even replied. And after that meeting with Steve Carter, at that time, did you start changing your opinions and forming a majority with Commissioner Wilson? A No. A I changed in that I respond to the dissents, which I had KAY BUTLER, CCR, CVR (501) 868-8134 not been doing before. What do you mean by that? Will you explain that to me? A Well, as you mentioned a while ago about the vicious dissents, Right. A -- due to the backlog and trying to get the cases out that we needed to get out, once I wrote my opinion and Commissioner Wilson did his dissent, I'd let it go on. But now then, I hold it up until I have a chance to go back and redo my opinions, which rebut the dissents. Since that meeting during the week of approximately April 27 of 1998, had Steve Carter criticized your written opinions? A Not to my face, so I don't know. And if you know, has ASIA criticized your written opinions since then? A I don't know. Also, at or about that time at or about that time, do you recall if you had a conversation with Mike Pickins about your written opinions? A I don't recall a specific conversation with him, but when the analysis came up, there was a meeting in my office including Carter and Walmsley and Pickins was there, and I believe I don't know if Marcus Devine was there or not. Okay. And would you tell us -- A Well, that was just really a matter of them looking at KAY BUTLER, CCR, CVR (501) 868-8134 reading the entire opinion. They had read a lot of the excerpts from the Workers' Compensation letter, and I invited them to come up and I had all the opinions there and they spent some time reading. And approximately, that, again, was some when was that -- like -- A In the fall of -- '90? A '97 '97. Okay. But do you recall in '98 having a conversation with Mr. Pickins in which he told you again like Mr. Carter did that you had to change your written opinions or you were going to be gone? A I don't recall that. Do you deny that? A I just don't recall it. He made a speech at a legal educational seminar in Hot Springs in which he was critical of some of my decisions. That's Mr. Pickins? A Yes. That's the only thing I recall about it. Did the Governor's office or Marcus Devine ever tell you that if you did not change your written opinions you would be gone as Chairperson? A NO. Okay. Now, when again directing your attention to the KAY BUTLER, CCR, CVR (501) 868-8134 -week of April 27, 1998, when you had that conversation with Steve Carter, as you testified, did you consider what Carter said to you -- or what Mr. Carter said to you a threat? A NO. And did you consider it that if you didn't change, that Carter would try to get you fired? A I considered he might try to, but I didn't think he could. I wasn't really that concerned. Now, I'm going to direct your attention to approximately February or March of 1998 and ask you if at or about that time you had another conversation with Steve Carter in which he told you that either Judge Mike Ellig or Judge Eileen Harrison had to go? I just lost MR. HOLMES: Pardon me, concentration. I'm sure there was nothing wrong with the question, but if you'd repeat it I'd appreciate it. MR. LAVEY: Sure. BY MR. LAVEY: Directing your attention to the later part of February, the first part of March of 1998, did you have a conversation with Steve Carter in which he told you that either Judge Mike Ellig or Judge Eileen Harrison had to go? A I had two conversations with Mr. Carter, but I believe they were both either in April or maybe one of them was in KAY BUTLER, CCR, CVR (501) 868-8134 Would you deny it? Okay. ?i April and one of them was in May. April of 1998? A Yes. And that's the one you've already testified to when he put his finger in your face? A Well, and I'm not sure which came first. Okay. And what about the other one, as you recall, in May of 1998? Would that be the one -- A And with the understanding that I'm not sure which came first. Okay. I understand that? A But.we've talked about one of them, or we've talked about the other, but the other one was really kind of a follow-up. I think they were kind of part of the same thing, but there was a discussion in which he, at least, wanted the Commission to terminate an ALJ. But did he specifically mention Mike Ellig or Judge Eileen Harrison? A Yes, and I believe possibly one other. And, in fact, did you so tell Commissioner Humphrey that; that he made that statement to you? A I don't recall that, but -- A Not if she says I did. Now, also at that meeting, was Mr. Carter there by KAY BUTLER, CCR, CVR (501) 868-8134 224 himself or was Mr. Walmsley there also? A He was just there. And was he present when Mr. Carter made those statements? A No -- I misunderstood your question. That's fine. Sure. Do that please. Okay. A Just Mr. Carter himself. Now, also, other than Mr. Carter, did Okay. Thank You. anybody from ASIA at or about that time also tell you that either Judge Mike Ellig or Judge Eileen Harrison had to go? A No. Just Mr. Carter. A Well, and I think there was conversation that was part of the same group, but they were separate with Mr. Walmsley. Okay. Can you tell me -- give me the conversation then, and was Mr. Walmsley present or was it just you and Mr. Carter at that time and then later on with Mr. Walmsley? A Yes, I think it was a telephone conversation with Mr. Walmsley. About the same time? A About the same time. Would you tell me about the conversation you had with Mr.. Walmsley? A I believe that it was right after I had talked to Mr. Carter and for some reason maybe Mr. Walmsley couldn't be there, and either I received a call from Mr. Walmsley or Mr. KAY BUTLER, COR, CVR (501) 868-8134 Carter asked me to call him. It was the same conversation, it was just with two different people. And, please, tell me the conversation you had with Mr. Walmsley; what he said and you said. A It's my recollection I just told him what the conversation I had had with Mr. Carter. About either Ellig or Judge Harrison goes? A Right. Right. And what, if anything, did he say? A I don't recall he said anything. And at that particular time, certainly, Mr. Walmsley represents insurance companies; is that correct? A Actually, I've seen him representing both in cases before the Commission. Claimants and A Yes. Now, basically, isn't he a lawyer for A I don't know that. Isn't he the one that wrote the letter criticizing your opinions -- A Yes. -- lining up with Labor Commissioner Humphrey? A (Witness nodding head up and down.) You've got to say "yes" or A Yes. KAY BUTLER, OCR, CVR (501) 868-8134 24 Okay. And MR. HOLMES: That was real quick, but I will object to the form of the question. Y'all can go on. BY MR. LAVEY: Regarding Mr. Walmsley, how often before the Commission does he represent claimants? A I can think of three or four cases in the last three or four months -- six months. Predominantly, does he represent insurance companies and employers in workers' comp cases? A I feel sure he represents more respondents than he does claimants. And, also, if you know, does he represent A I don't know. Regarding that letter in the fall of 1997, you said you saw that Bill Walmsley wrote? A About the analysis of opinions? Yes, right. A Yes. And wasn't he concerned, also, at that time about the chief executive office of Mr. Kennedy? A I don't recall anything in the letter about that. And -- but certainly in the fall of 1997, Mr. Kennedy was ?the chief executive officer; is that correct? A Yes. KAY BUTLER, CCR, CVR (501) 868-8134 you recall regarding ASIA and the discharge of Dwayne Hodge, weren't they upset that Judge Hodge was discharged? A I've heard that. And they were very upset that he was discharged, because he was very conservative and employer oriented? That's not why you fired him, but that's why they were upset? A Well, I assume that. Now, again, I'm going to direct your attention to the period of time from on or about January about May 1 of 1998 and ask you if during that period when the Commission was meeting, meaning yourself and Commissioners Wilson and Humphrey, that Commissioner Wilson stated that management wanted to have Eileen or Judge Harrison fired? A I do not recall that. Do you deny that? A Yes. And, in fact, they wanted her fired because of her opinions and the content of her opinions? A I did not recall that. And do you deny that? A Yes. And do you recall if at or about that time you said that you had just seen a couple of Judge Harrison's opinions that ?you had problems with, at that particular time during these KAY BUTLER, CCR, CVR (501) 868-8134 meetings? A I don't recall that. And do you recall if Commissioner Humphrey stated that it is inappropriate to fire an ALJ because of their written opinions during those meetings? A I don't recall. Okay. Do you deny that? A Yes. Okay. A I just don't recall it. Okay. MR. HOLMES: Can we go off the record a minute. (OFF THE RECORD) MR. HOLMES: I just want you to be clear when you if you misstated your last answer or answers, correct it. If not, then say that I answered it correctly, but -- MR. LAVEY: He's answered. MR. HOLMES: Have you misstated any of your answers or not? THE WITNESS: No. MR. HOLMES: I don't remember what the last question was. THE WITNESS: Well, the last question MR. LAVEY: The last question was that: "Do you KAY BUTLER, CCR, CVR (501) 868-8134 recall if she said that it was inappropriate to fire a judge because of their written opinions?" And he said, "He didn't recall that." And I said, "Do you deny that?" And he said, "No, I don't deny it." MR. HOLMES: Okay. That's fine. All right. Is that correct? THE WITNESS: Yes, that's right. MR. LAVEY: Right. MR. HOLMES: We're all okay then. MR. LAVEY: Okay. THE WITNESS: Good. MR. HOLMES: I'm the only one that's confused. THE WITNESS: Okay. MR. LAVEY: No problem. MR. HOLMES: The witness and the lawyer are doing great. BY MR. LAVEY: Now, again, I want to direct your attention to again, oh, the last part of March, the first part of April of '98, and at that particular time, do you recall having a conversation between just you and Commissioner Humphrey in which you proposed that Judge Harrison become the Chief Legal Advisor and that she would take the place of Jennifer Love and at that particular time, you stated that the move would be good because, according to you, Judge Harrison was claimant KAY BUTLER, CCR, CVR (501) 868-8134 oriented, but Commissioner Humphrey refused and said, no, because Judge Harrison is doing a good job as an MR. HOLMES: I've really tried to be patient, but that's a very long question, and I lost a part of it. MR. LAVEY: I'll break it down. MR. HOLMES: And if you can answer that question in that form, then, do so, but there is at least five or six questions there. THE WITNESS: I cannot answer that question. MR. LAVEY: Okay. Very good. BY MR. LAVEY: Do you recall having a conversation with Commissioner Humphrey, again, the last part of March the first part of April of 1998, first of all about Judge Harrison at that particular time? A I think I know what you may be referring to and it's my recollection that it was later than that, probably July or August. Of '98? A 1998. Wasn't it just about do you recall if was it just about before the conversation pertaining to Ms. Harrison that Commissioner Wilson, you, and Commissioner Humphrey had about the same subject about moving Judge Harrison into the job of KAY BUTLER, CCR, CVR (501) 868-8134 Chief Legal Advisor? MR. HOLMES: I don't understand that question. THE WITNESS: I don't either. MR. LAVEY: Okay. MR. HOLMES: One of us is getting tired or I don't understand the question. MR. LAVEY: Okay. BY MR. LAVEY: Okay. You were present during Commissioner Wilson's deposition; is that correct? A Yes. And there was a question and answer pertaining to a meeting between the three of you: you, Commissioner Humphrey, and Commissioner Wilson the last part of March and the first part of April where the three of you participated pertaining to moving Judge Harrison into the position of Jennifer Love as Chief Legal Advisor; you were present during that; is that correct? A Well, the only thing, Mr. Lavey, I don't recall it being during that time frame and if that's what the record shows. No, that's what he said, and I'm -- A Okay. All right. Okay. Now, you were present during that? A I recall that conversation. Now, first of all regarding the conversation between the KAY BUTLER, CCR, CVR (501) 868-8134 three of you, which is Commissioner Wilson, you, and Commissioner Humphrey about moving Judge Harrison into the Chief Legal Advisor position, he testified that he thought it was the last part of March, the first part of April of 1998; do you disagree with that? MR. HOLMES: I'm going to object to the characterization of his testimony. It may very well be accurate, but I'm not sure what the record will reflect, and I'm not trying to argue with you, but I'm going to object to that and if you recall whether that conversation was late in April -- late March or early April, just say so. THE WITNESS: Okay. MR. LAVEY: Okay. BY MR. LAVEY: Do you recall -- A It's my recollection it was later than that. Okay. Very good. Approximately, when did that conversation regarding the three of you, which I will get into in a minute, take place; from your recollection? A Well, I thought it was in perhaps July or August. Of '98. A Yes. Okay. Now, are you speculating in saying perhaps July or August; are you sure? KAY BUTLER, OCR, CVR (501) 868-8134 Well, I feel sure. Okay. Now, regarding the conversation just between you and Commissioner Humphrey and Commissioner Wilson was not present about moving Eileen Harrison in the job of legal adViser, when approximately did that take place? A Oh, I thought along again about the same time frame. Okay. Would that be before the conversation with the three of you or after the conversation with the three of you, according to you? A I don't remember. Okay. But you do recall the conversation with you alone with Commissioner Humphrey, as you testified in July or August; that's your recollection? A That's my recollection. is that correct? And, again, it was just the two of you; A I recall the conversation with the three of us.> I cannot specifically recall the conversation with just me and her. Okay. Let me ask you, then, for purposes of the record regarding -- I thought you said there was a conversation between just you and her at or about that same time? A Yes, and I'm not sure which was first. That's fine. But now directing your attention to Okay. your conversation, first of all, just with you and Commissioner Humphrey; are you with me? A Yes. KAY BUTLER, CCR, CVR (501) 868-8134 MR. LAVEY: Okay. MR. HOLMES: I know you're trying to speed it up, but I MR. LAVEY: Sure. No problem. BY MR. LAVEY: 8Q At that time; number one, do you recall that you proposed 32 Okay. Where did that conversation take place; in your office? A I don't recall. I'd just have to guess. Okay. And was it just you and Commissioner Humphrey at that time? A Well, I'm answering this on the basis of a conversation between just me and her. Right. A So it was just us. Right. Okay. And at that particular time, do you recall stating to her that you wanted to move Judge Harrison into Jennifer Love's position as Chief Legal Advisor? This is what you stated to her, because according to you Judge Harrison was claimant oriented and Commissioner Humphrey refused because she said that Judge Harrison was doing a good job as an MR. HOLMES: Would you break that down again? That's still at least two questions. to Commissioner Humphrey that you wanted to move Judge Harrison into the Chief Legal Advisor position at that time; do you KAY BUTLER, OCR, CVR (501) 868-8134 the Legal Advisor position. and had left and had done an outstanding job and apparently Afrom all indications liked it. 33 recall that? And again, just the two of you now. A I cannot tell you when the conversation took place, but sometime after the Reddick decision. Okay. In terms of -- you've got it before you. Again, we have Plaintiff's Exhibits 1, 2, and 3 and Plaintiff's Exhibit 2 is Judge Harrison's Reddick decision and it's dated July 14, '97 and the Full Commission's decision, sir, is May 15 of 1998. A Well, sometime after the first decision. After Judge Harrison's decision? A Right. So that would be sometime after July 14 of '97? A Perhaps after this conversation with Carter. You've got that, I believe, in April of '98? A There were a lot of criticisms about that decision. By whom? By Carter; he criticized her? A Well, employer groups. Okay. A And I discussed with her the possibility of working out something to move Ms. Harrison to that Chief ALJ -- Legal Advisor? And I had learned from her personnel file that she had been a legal advisor previously And do you recall that she became an ALJ on September 1 of KAY BUTLER, CCR, CVR (501) 868-8134 1998? :that PX-2, the Reddick decision came out on July 14 of 1997; is ?that correct? ?l 1991? I understand that I don't know if she came she A Well, left the Commission at one time I believe. But what I'm saying, do you understand that Judge Harrison came A I didn't know what time. Okay. And at that particular time, what did this was, again, after Judge Harrison's decision in Reddick and would it have been before the Commission's decision in Reddick, which is A I don't know. But certainly, again, regarding Judge Harrison's decision in Reddick, which is dated July 14 of 1997, you would have known that, wouldn't you two or three or four or five months before the Commission's decision in came out on May 15 of 1998? A I don't understand the question. Okay. Regarding the conversation that you had with Commissioner Humphrey, you said it was after the conversation with Carter in April of 1998 A I believe so. As best you recall it. And again we know Right. Okay. A Yes. KAY BUTLER, COR, CVR. (501) 868-8134 gthought she'd do a good job in the Legal Advisor's spot. And at that time, had the employers or AISA complained to 3? And again we know that the Commission's the Full Commission's decision came out on May 15 of 1998; is that correct? A Yes. But you would have been writing or working on two or three or four or five months, certainly before it came out; is that correct? A Probably a month. So certainly, at the time you're talking to Commissioner Humphrey, you knew about Judge Harrison's Reddick decision on July 14, '97, and you knew or you were working on it yourself for the Full Commission's decision to come out later? A Yes. Yes. And at that particular time, again, you've testified briefly about the conversation that you had a conversation with Commissioner Humphrey about moving Judge Harrison into that position; is that correct? A Yes. And as I understand it, that was because of the complaints being made by Steve Carter and some of the employer representatives? and I A Well, I just thought it would be a good move, you about the Reddick decision? KAY BUTLER, CCR, CVR (501) 868-8134 think that's part of what Steve Carter had complained about, and then, I think the Governor's office was getting complaints about that. From whom; do you know? ASIA and Steve Carter? A I don't know, but Who told you about that; Marcus Devine? A I believe Marcus Devine. Okay. But at that particular time, is it not true that Commissioner Humphrey told you that she did not want to go along with that, because in her opinion Judge Harrison was doing a good job as an A I don't recall exactly what she said, but she didn't want to go along with it. Would you deny that she said to you that, because she refused to go along with it, because Judge Harrison, in her opinion, was doing a good job as an A No, I would not deny that. Okay. Now, I know we don't know which came first. Now, let's go to the meeting between you, Commissioner Wilson and Commissioner Humphrey, again same topic about moving Judge Harrison into the Chief Legal Adviser position; are you with me? A Yes. Okay. Would you please tell me your recollection of the conversation that took place at that meeting pertaining to that KAY BUTLER, COR, CVR (501) 868-8134 subject? A As I recall I think it's -- well, as Commissioner Wilson stated. And, again, it's what you just stated; I think Commissioner Humphrey was opposed to it. But basically, are you relying on the notes that you made during the deposition of Commissioner Wilson while you were here? A I do not remember that meeting as much as I do the other one just between me and her. Let me, thenask you some questions about that meeting -- MR. HOLMES: Before you ask another question there's one thing I want to tell him; is that okay? MR. LAVEY: Sure. MR. HOLMES: It has nothing to do with the question. (THEREUPON, a brief conversation was held off the record between Mr. Holmes and the witness.) MR. HOLMES: Go ahead. MR. LAVEY: Okay. THE WITNESS: Okay. BY MR. LAVEY: Okay. Regarding the meeting between the three of you, "the three of you" being yourself, Commissioner Wilson, and Commissioner Humphrey, at that time, do you recall that KAY BUTLER, CCR, CVR (501) 868-8134 3% Commissioner Wilson proposed that Judge Harrison be moved over into the Chief Legal Advisor job, and that he would then make Jennifer Love his clerk? A I do not specifically remember the part about Jennifer Love becoming his clerk, but I do remember the mention about moving Ms. Harrison. Do you deny that Mr. Wilson proposed that in addition to moving Judge Harrison into that job that he would that Jennifer Love would become his clerk? A I do not deny that. Okay. And then do you recall that the reason that Judge Wilson proposed that was because of the decisions written by Judge Harrison, at that time with the three of you present? A I don't recall him giving any reason. Do you deny that? A I just don't recall it. Okay. And, again, do you recall that -- and also, at that time, do you recall that Mr. Wilson also proposed that Karen McKinney would then become the ALJ and take over the vacancy that would be vacated by Judge Harrison? A I do not recall that. Do you deny that? A I just don't recall it. And do you recall, again, at that time Commissioner Humphrey said that she would not go along with it, because, in KAY BUTLER, CCR, CVR (501) 868-8134 her opinion, again, Judge Harrison was doing a good job as an A I recall that she would not go along with it. I do not recall that she made any other comment. Would you deny that she said that because Judge Harrison was doing a good job as an A I just don't recall. Okay. Jack, we've been going an hour. MR. HOLMES: MR. LAVEY: Yeah, let's take a break. (OFF THE RECORD) BY MR. LAVEY: Are you ready sir? A Yes. if it I apologize, I might be a bit repetitious about it; is, I apologize. Going back to that meeting about the three of you in relation to transferring Eileen to the Chief Legal Advisor job? A Yes. Also at any time during that meeting, do you recall Commissioner Wilson proposing that Karen McKinney would fill the ALJ job by the vacancy? A I do not recall that. Do you deny that? A I just did not recall. KAY BUTLER, CCR, CVR (501) 868-8134 Okay. Thank you. Now, at that meeting of the three of you, again, Commissioner Wilson, Humphrey, and yourself, do you recall what Commissioner Wilson said, as best you recollect it? A About moving Judge Harrison to the -- Right. A Legal Advisor position? Yes. A What I recall Commissioner Wilson said about it? Yes, during that meeting. A I do not. Do you recall any reasons he gave for proposing that? A NO. Okay. Now, MR. HOLMES: Let me object to the form of the question. I really think you ought to ask him if Commissioner Wilson proposed it or not. I don't know that he's testified that Commissioner Wilson did and you've assumed that in your question. MR. LAVEY: I think the record will stand for itself if you want to MR. HOLMES: No, that's fine, you can go on. That's fine. BY MR. LAVEY: Now, for purposes of the record, up to that time, which as you recall sometime around in April of '98 from, we'll say -- I KAY BUTLER, CCR, CVR (501) 868-8134 _it was beginning to show up on the statistics that we keep that ?l guess, for practical purposes from the time you became Chairperson up to the complaints you said you received pertaining to the Reddick decision from Steve Carter, prior to that had you, you personally, received any complaints about Eileen from any persons outside of the Commission? A From the time I became Chairman up until the Reddick decision? Up until Mr. Carter complains to you about the Reddick decision that you've already testified to; up to that point prior to that, had you received any complaints at all about Judge Harrison outside of the Commission? A Sometime at some point I had received some complaints about the slowness of her decisions, and I cannot tell you if that was before or after. And would that have been from out -- like, lawyers or from internal being, Mr. Carter or would that have been internal; we'll say, Commissioner Wilson or anybody else inside? A Both. Okay. But you don't know whether it was before or after? A No. Okay. And in terms of -- and were the complaints oral to you or in writing or both? A There were complaints. The complaints were oral, but also I began to notice it. KAY BUTLER, CCR, CVR (501) 868-8134 And then, you made the inquiry in '98, sir? A It's my recollection, yes. To either Julie Bowman or to Dave Greenbaum or who did you make the inquiry to? 42 Right. Would that be in '97 or '98 or both? A Certainly '98. Okay. And at that time, did you ever go to Judge Harrison and complain that she wasn't keeping up with her caseload? A I inquired as to what the reason was. To whom, sir? A I'm not certain Judge Greenbaum. Okay. A I inquired, and I was told that she had an Aunt, I believe it was Judge Woods' sister, I think, that I was told that was in Mississippi or Georgia that had gotten real ill and that they had to go get her and move her back here, and that she was spending a lot of time trying to get her stabilized and set up, and that it had thrown her behind. And would that be in '97 or '98? A Well, I think I got my information in '98, but it may have happened in '97. _Okay. In terms of being behind in '97 or being behind in '98? A Well, she was still behind in '98. KAY BUTLER, CCR, CVR (501) 868-8134 Well, and if it was early enough in '98, it could have been John Kennedy? A -- John Kennedy, right. And they told you what you just testified to? A Yes. And did you ever go to Ms. Harrison and check on that? A No. -Q And did you ever complain to her, "That you've got to get .up and was not behind in her cases; is that correct? ?June, July, and August with the exception of one case? 43 it straight"? A No. Okay. And other than those complaints you just testified to up to the complaint from Mr; Carter about the Reddick decision, had you received any other complaints from anybody? A Not that I recall. Now, certainly in terms of being behind on cases, other ALJ's were also behind in their cases; is that correct? A Yes. if you know, and if you don't, And, again, say so, regarding May, June, July, and August Judge Harrison was caught A I don't believe that's correct. I'd have to look at the record, but Regarding she had no cases over ninety days for May, KAY BUTLER, CCR, CVR (501) 868-8134 .the Workers' Compensation Committee, :were actually two different complaints. .Q But it was the ASIA people? 44 A In ?98? Yes. A That certainly doesn't sound correct to me, but I Okay. But the records would prove it; is that right? A Right. Okay. Now, from the time of the complaint to you -- but that's all the complaints you had; right, as you've testified to regarding Judge Harrison up to the time that Mr. Carter makes the complaints about Reddick and what-have-you; is that correct? A I believe that's correct. Now, other than the one meeting with Commissioner Wilson three days to a week before August 19 of 1998, other than that meeting and your conversation with Mr. Wilson, between the complaint made by Mr. Carter to you that you've testified to about Reddick up to the date of discharge, were there any other complaints made to you by anybody outside of the Commission about the work performance of Judge Harrison? A Well, I think and I may have mentioned this earlier, Bill Walmsley had made the complaint, but he also he was co?chair and I considered coming from Carter and Walmsley as one and the same, but I think there A I don't think it's ASIA. I think that's the state it's KAY BUTLER, OCR, CVR (501) 868-8134 and Mr. Walmsley up until -- other than the meeting you had 45 -- I think that they were co-chair of the state -- of the Chamber of Commerce Workers' Compensation. And would that have been in '98 or '97? A '98. Okay. And that was after Mr. Carter made the complaints to you in April about -- as you've testified, about Reddick? A I think they were along about the same time. Okay. And what complaints did Mr. Walmsley -- A About the same thing as Carter had complained about, the Reddick. Anything else other than Reddick? A Primarily the Reddick case. And what was the complaint by Mr. Walmsley and Mr. Carter? Was it Mr. Carter and Walmsley or just Mr. Walmsley at that time, sir? A Well, I think you misunderstood me, they apparently are co-chair of the committee. Okay. I've got it. So you're saying, it was like a duel A I heard from both of them, but I think they represented the same group. Okay. Then after that, like, we'll begin from Mr. Carter with Mr. Wilson up to August 19 of 1998, any other complaints by anybody from outside? KAY BUTLER, CCR, CVR (501) 868-8134 Yes. 4 i A Not to me. Okay. Now and, again, other than Mr. Wilson making the complaint to you talking about the motion, again, three days to a week before August 19 of 1998, internally, other than what Mr. wilson and you discussed at that meeting, were there any complaints by anybody like, say, Judge Greenbaum or Julie Bowman about her work performance? A No, and, of course, you know that I was made aware of the complaint made by Gail Matthews? I'm going to get to that later. (THEREUPON, a brief discussion was held off the record between Mr. Lavey and Ms. Harrison.) BY MR. LAVEY: Now, regarding the complaint from Gail Matthews, was that a personal meeting with Mr. Matthews or was that just Commissioner Wilson showing you his letter; Gail Matthews' letter? A It was Commissioner Wilson showing me the letter. Okay. And that was again sometime about was it at that meeting three days to a week before, or had you Okay. And regarding the letter that Gail Matthews wrote to Commissioner Wilson that Commissioner Wilson showed you, that involved a joint petition; is that correct? Not accommodating him on a-time KAY BUTLER, CCR, CVR (501) 868-8134 That's my understanding. Right. After being shown that letter, did you go and talk to Judge Harrison about that to get her side of the story? A NO. And if you know, isn't it the practice among the ALJs regarding joint petitions that if an ALJ is busy such as Judge Harrison, that he or she will then refer them to another ALJ to take care of it? A Mr. Lavey, I really don't know if that's practiced here or not. i And you didn't know at the time that you had the conversation with Mr. Wilson three days to a week before August 19, on August 19 of '98; you didn't know that at that time? A No. MR. LAVEY: If I haven't said so, I'd like to make and 3 part of the deposition. MR. HOLMES: Do you want to attach it to both depositions? MR. LAVEY: Yes. Yes. MR. HOLMES: And we'll just have a copy in each one? .MR. LAVEY: Yes. MR. HOLMES: That's up to you. MR. LAVEY: Yes. I've already got a copy of those exhibits for her -- for the other booklets. KAY BUTLER, CCR, CVR (501) 868-8134 (THEREUPON, two documents previously marked for identification as Plaintiff's Exhibits 2 and 3 were made a part of the record and are appended at Exhibit Tabs 2 and 3.) BY MR. LAVEY: Now, again, you were present during the deposition of Judge Woods on February 17 of 1999; is that correct? A Yes, sir. Yes, sir. And at the time -- A Can I refer to that? Oh, yes. A I have a copy of it. Oh yes, please do. Yeah, his deposition page thirteen. Go to page thirteen. Now, at the time you had the conversation with Judge Woods on April 25 of 1998 at Judge Bob Dawson's investiture; number one, at that time, had you had the conversation with Steve Carter about the complaints about the Reddick case? A What was the date of that? April 25 is the date of the conversation. Itthe bank, that's a good date that Judge Dawson was invested. A I'm not certain. Certainly, at that time you knew of Judge Harrison's decision in the Reddick case, which is dated July 14th of '97 KAY BUTLER, CCR, CVR (501) 868-8134 Yes. and by that time, you were working on, certainly, your opinion and the Full the Full Commission decision to be issued on May 15 of '98; is that correct? A Yes. So you knew about the Reddick decision; is that correct? A But you're not certain whether Mr. Carter had made the complaints to you at that time by the -- as of April 25 of '98? A That's correct. Okay. And again on April 25 of 1998 regarding Judge Woods, isn't it true that you sought him out, he didn't seek you out at all? A That's correct. And at that time on page thirteen of Judge Woods' deposition, Judge Woods testifies regarding the conversation, just wanted to tell you what a meaning you, "said, fine job your daughter, Eileen, is doing as an Administrative Judge with the Commission.? And I simply responded by saying, 'I'm glad to hear it.? And then, Mr. Coffman went on and said, must tell you that we're being pursued by the self?insurers and some of the insurance companies to get rid of Eileen to discharge and fire her, because they feel that she is being too fair to claimants.'" And then, he states, "That you went on to say, quotes, 'We're not going to let that happen, and I think I BUTLER, ccn, CVR (501) 868-8134 can protect her,? end quotes." Do you agree with that with what Judge Woods said as far as the conversation he had with you on April 25 of 1998? A No, sir. What parts of the conversation do you deny or controvert? A I just do not have the same recollection of the conversation that he stated. Well, give me your version of the conversation that you recall having with Judge Woods on April 25 of 1998, if you would, please. A I recall that he asked me, "How is my daughter doing?" And I said, "Fine." That's my recollection. I do not recall any of the conversation, and I deny that I made the statement about the insurers or the efforts to get rid of his daughter at that time. And at that time as of April 25 of 1998, had Mr. Carter or any of the other people told you they wanted Eileen or Mr. Ellig to go? A I'm not sure if it was before that date or after that date. If you recall, wasn't that conversation with Mr. Carter in February or March of 1998? A NO- You deny that, about Judge Ellig or Judge Harrison has to go? KAY BUTLER, CCR, CVR (501) 868-8134 Times and the Times edition is May 15 of 1998, and I'm going to 5L A Yes. It was not that early. And do you recall telling that conversation to Commissioner Humphrey? A About which conversation? That you had with Steve Carter saying that either Judge Ellig or Judge Harrison had to go? A I recall telling her about the conversation, but the conversation was much later than that. As far as you can recall? A Yes. Okay. Now, did you at all tell Judge Woods that his daughter was doing a fine job as an ALJ for the Commission? A We visited and as people started coming up, and as I "Well, started to leave, and we were shaking hands, he said, how's my daughter, Eileen, doing?" And I said, "Fine." And you didn't make any statement about, "We're not going to let it happen. I think I can protect her."? A No, sir. Do you deny that? A Yes. Okay. I'm going to please direct your attention to Plaintiff's Exhibit 1. Again, that's taken from the Arkansas first column above direct your attention to the column, "Workers Beware," that paragraph, quotes, "Something else to KAY BUTLER, CCR, CVR (501) 868-8134 look out for: Word is that employees are leaning on Coffman to replace some of the Commission's Administrative Law Judges, the one's that management suspects are sympathetic to workers. Coffman won't comment." Did you read that at or about that time? A Yes. And did you ever call or write to the Times to tell them that was not accurate? A No. In fact, were you being pressured to replace some of the at that time some of the Commission's A I interpret that as being what you have just asked me about, about Ellig and Harrison. And that was -- and certainly, by the time came out, Mr. Carter had that conversation with you, saying that either Judge Ellig or Judge Harrison has to go? A I feel certain it was prior to that time. Okay. And as and you mentioned there was some other judges they were talking about getting rid of; "they" being Mr. Carter or was it just the two of them Judge Ellig and Judge Harrison, as best you recall? A As best I recall. It was just the two of them? A Yes. MR. LAVEY: I'd like to make part of the KAY BUTLER, OCR, CVR (501) 868-8134 deposition, please. (THEREUPON, a one?page document previously marked for identification as Plaintiff's Exhibit 1 was made a part of the record and is appended at Exhibit Tab 1.) BY MR. LAVEY: Do you know Bob Compton? A Yes. And he's a lawyer down in El Dorado? A Yes. And he's known you for at least thirty years; is that correct? A Yes. And do you recall getting a telephone conversation from him on May 19? A A I don't know the date, but I got a call from Mr. And then you returned the call; is that correct? Yes. And do you recall at that particular time that Mr. told you that he had been told that his good friend Eileen Harrison's job was in jeopardy? said that to you? A I don't remember those exact words. Do you deny them? I just don't recall those exact words, but he was KAY BUTLER, CCR, CVR (501) 868-8134 Compton. Compton Do you recall that Mr. Compton 53 5% inquiring about Ms. Harrison. And do you recall telling him that you knew some things about Judge Harrison that were confidential, which you could not talk about, but you told him that Eileen's job has been discussed, and there has been some rumbling about her workyou told Mr. Compton that she is very good at her job and that you did not believe anything would happen to her? A No, sir, I don't recall that. Do you deny it? A I don't recall that. Do you deny it? A Yes. Okay. And A I don't deny the conversation. No, I'm saying -- A Okay. Okay. What I'm saying is: Do you deny that telling him that Judge Harrison is very good at her job and that you did not believe anything was going to happen to her and if anything changes, you would try to let him know about A I recall the conversation, but I deny that. Okay. Then after that conversation about Judge Harrison, you and Mr. Compton then engaged in some general conversation? Briefly. And, as an example, Mr. Compton has known you since at KAY BUTLER, OCR, CVR (501) 868-8134 least 1968; is that correct? A were C) K) E) A Approximately. And also when Mr. Compton ran for Governor in 1970, you very active in his campaign; is that correct? Yes. But you do admit getting the telephone call? Yes. And you do admit he talked to you about Eileen? Yes. Or Judge Harrison? Yes. When you had the conversation with Mr. Carter about Judge Harrison or Judge Ellig has to go, did he give any reasons; number one, why Judge Harrison had to go at that time? No. And when he said -- when he made reference to Judge Ellig going It?s Ellig, how you pronounce that. Okay. Thank you. And did he say why Judge Ellig should No. But he was demanding that they go? I wouldn't say demanding, but he let it be known that he .would like to see them go. Okay. KAY BUTLER, CCR, CVR (503) 868-8134 want to correct a previous answer, too. I've thought since you asked me. There was also some criticism of Judge Blood and Judge Mazzanti. Okay. What kind of criticisms of Judge Blood and Judge Mazzanti; too pro claimant? A Delays in their decisions and maybe attitudes. I'm not certain, but just criticisms. Did he say okay. He was also suggesting that they should be let go also? A Well, he wasn't real complimentary of them. Okay. Could you tell me what he said? MR. HOLMES: Is "he" Mr. Carter here? THE WITNESS: Yes. MR. LAVEY: Yes, this is Mr. Carter; right. BY MR. LAVEY: Could you tell me what Mr. Carter said? A And, again, as I've explained, it may have been Walmsley also that told me that. Okay. I understand. I'm with you. A I don't recall if either one of them said that deciding the case constitutionally that they were upset about, but, again, it's going back that they felt like there was an erosion of Act 796 by some of the decisions. By the A And they wanted to point to the fact that they had KAY BUTLER, CCR, CVR (501) 868-8134 specifically got legislation that says that it will not be interpreted and so forth by, you know, an involvement increase by the Commission, and they felt like that those ALJs were doing it. And did he also tell you that they felt the Commission was also doing it by affirming those actions? A Yes. And they wanted it stopped? A Yes. Did you go and talk to Judge Mazzanti or Judge Blood about what Mr. Carter and, slash, or Mr. Walmsley said? A No. And the same was true for Mr. Ellig or Judge Harrison? A Yes. If you recall, regarding the conversation that you've testified about Mr. Carter telling you because of your written opinions you should quit, did that happen the week after you talked to Judge Woods on April 25 of 1998, sir? A I don't know. And, again, do you recall when that conversation with Mr. 'Carter was? A No. In relation to the conversation with Mr. Carter about, according to you, either Eileen or Judge Ellig has to go and falso criticizing Judge Blood and Judge Mazzanti, do you recall KAY BUTLER, CCR, CVR (501) 863-8134 whether that was before or after he made that remark to you about putting his finger in your face and telling you that because of your opinions you should quit? A No, I don't. Do you recall if on or about May 1 of '98 up to and including August 19 of 1998 if there were any complaints made by Mr. Carter pertaining to Judge Harrison? A No, I do not. Do you know if during that period of time in conversations with Commissioner Wilson and/or Commissioner Humphrey that there were reports by Commissioner Wilson there were complaints by Mr. Carter about Judge Harrison? A No. Do you deny that? A Are you asking if I know if there were any complaints Yes, if they were discussed at those meetings from about May 1 of '98 up to about -- up to the time of the discharge, August 19th? A Well, there's been testimony here about a discussion. That's right, and as you've testified you thought it was in April of '98; I'm saying May of '98? MR. HOLMES: Well, I thought he testified that he thought it was in July or August and that you "Was it in but you've started questioning him, April?" And I don't want to get back into arguing KAY BUTLER, CCR, CVR (501) 868-8134 those questions, please, no problem. 591 about what he said or didn't say. MR. LAVEY: I'm not going to get into a fight about that either. The record will speak for itself. MR. HOLMES: Sure, it will. MR. LAVEY: The record will speak for Okay. itself regarding that. BY MR. LAVEY: But regarding the meetings with -- this is pertaining to the meetings between Commissioner Wilson, Commissioner Humphrey and Chairperson, you know, Coffman, was it reported during those meetings, and I?m not talking about what he did was it reported at all by Mr. Wilson that there were complaints by Steve Carter about Judge Harrison that you can recall? A No, I do not recall. Okay. That's fine. Now, again I'm going to direct your attention to the period of time approximately three days to a week before August 19 of 1998, the meeting that it's just you and Commissioner Wilson; is that correct? Or is Julie Bowman also present at that meeting? A And what is the time frame now? The week or three or four days or the week before August 19th, sir, when you -- A Okay. At that ?particular meeting, as I understand it was just you and KAY BUTLER, CCR, CVR (501) 868-8134 ,agreed with him about you would go along with him on the motion? 1A Yes. So it was all decided it would be a two-to~one decision at 60 Commissioner Wilson; is that correct? A Well, the meeting in reference to Ms. Harrison Yes. A -- and when -- as he's testified about the complaint -- He wants to make a motion to discharge at the next Commission meeting. A Okay. I understand now. No, that's fine. Just ask, please, no problem. But that means it's just you and Commissioner Wilson; is that correct? A Yes. Okay. Now, at that particular time, would you please tell me what Commissioner Wilson said and you said at that time? A Well, I agree with I believe the testimony that he?s stated here today, that he had this complaint from Gail Matthews, and that he was going to make a motion that she would be terminated. Okay. And anything else you recall him saying at that meeting? A Not that I recall. Okay. Now, and as I understand it, at that meeting you worst case scenario at that point. KAY BUTLER, CCR, CVR (501) 868-8134 I'm not sure which came first. Okay. 61 A I told him I would. Right, okay. But I mean it would be two to one; is that correct? A Well, and that's again assuming Commissioner Humphrey Right. But I mean, I'm saying worst case scenario, it would be two to one. A Yeah. Now, after that meeting do you recall did you have any conversations at all with Julie Bowman about that meeting, three days to A I don't know if it was before or after. Before or after? in which she advised A I had a conversation with Ms. Bowman, me that the Governor's office had talked to her about Ms. Harrison. Okay. And do you recall approximately when you had this conversation? A Well, it was -- the time frame was very close. So you don't know whether it was before that meeting with just you and Commissioner Wilson, or is that what you're saying, or between that meeting with Commissioner Wilson and yourself only to August 19 of 1998? And you had a conversation with her at that time? A Right. KAY BUTLER, CCR, CVR (501) 868-8134 And.what did she say at that time to you? Was it just you and Ms. Bowman? A Yes. Okay. Where did this take place; in your office? A I believe it was her office. Okay. Would you please tell me what you said and she said at that time? A She told me that the Governor's office indicated to her that they would like to see Judge Harrison dismissed.l She's saying Okay. Did she say who said that over there? to you that the Governor's office would like to see, you know, Judge Harrison dismissed; is that correct? A Generally. Okay. And what else did she say about that? A That was about all. And did she say who told her that? A I think it was Brenda Turner. And Brenda Turner would be what; the chief of staff? A Yes. For the Governor? A Yes. And did you, then, call Brenda Turner to check out why they wanted Judge Harrison discharged? Did you call Marcus Devine at that time to find out why KAY BUTLER, CCR, CVR (501) 868-8134 you, why was the timing bad to discharge Judge I thought it was a bad political decision. 63 they wanted Judge Harrison discharged? A No. And when Ms. Bowman told you that, did she say that the Governor's office had been reviewing Judge Harrison's decisions for a year. A No. Do you know, in fact, that the Governor's office was reviewing Judge Harrison's decisions for a year? A No. did you tell And after that conversation with Ms. Bowman, her to tell the Governor's office you were going to discharge her? A No. What did you tell Ms. Bowman after she said that to you? A I asked her to talk to them again, because I thought the timing was very bad. Okay. Did you tell her that because you thought the timing was bad? A Yes. And what, if anything, did she say to that? A She got back in touch with them and got a reply back and said, "No, go ahead." Harrison? KAY BUTLER, CCR, CVR (501) 868-8134 And why did you feel it was a bad political decision for the Governor's office? A The Governor was in the middle of a campaign, and he was going to be speaking at AFL-CIO that Friday and Saturday and this was on a Wednesday, I believe. Okay. And so the Governor's office told you to go and fire her. A Yes. So you were instructed to fire her by the Governor's office? A (Witness nodding head up and down.) Are you saying "yes"? A Yes. Okay. And other than -- did the Governor's office tell you why they wanted her fired? A The Governor's office did not tell me. information from Ms. Bowman. I received my 64 And all Ms. Bowman told you was that the Governor's office wanted her discharged; is that right? A A Yes. And she did not tell you why? No. Do you know if later on she told you why the Governor's office wanted her discharged? A That she was considered a Grade 99 and served at the will KAY BUTLER, CCR, (501) 868-8134 CVR the Governor or in favor of the Governor Right. A -- and that they wanted her discharged. And did they say they wanted her discharged because of her decisions? A No. She didn't say that to you? A No. Ms. Bowman didn't say that to you? A No. When you called the Governor's office after telling Ms. Bowman to call the Governor's office and say it was bad timing, did they get back to you or did they get back to Ms. Bowman? A They got back to her. And they told her to go through with it? A Yes. Did they tell her why they wanted her fired, if you know? A I do not know. She did not give you any reason? A No. Has anybody from the Governor's office ever told you they fired Judge Harrison because of her written opinions? A No. 2Q Has anybody from the Governor's office ever told you that they supported the decision to fire Judge Harrison? KAY BUTLER, CCR, CVR (501) 868-8134 1998? 1A I don't know. Now, at the meeting on August 19 of 1998, Commissioner 6% A No, I never heard either way. Okay. Now, did you ever find out that the Governor's office fired or issued the order to fire Judge Harrison because of a request by, as an example, Steve Carter? A I don't know. Or from A I don't know. Or from Bill Walmsley? A I don't know. Did you receive the order from the Governor's office before August 19 of 1999 -- ?98. A Well, bear in mind I didn't receive the order. Ms. Bowman received the order, and she just passed it on the me. Right, exactly. A And I don't remember what the time frame was; it was several days in there. You're saying August 19th; was that the day she was terminated? Yes. A Okay. So it was several days before that. Now, was it -- if you know, was it before the meeting you had with Mr. Wilson the three days or a week prior to August 19 Wilson made a motion; is that correct? KAY BUTLER, CCR, CVR (501) 868-8134 Yes. 67 A Yes. Now, was Julie Bowman present at this meeting on August 19th? A Yes. Did she make any notes at all? A Not that I'm aware of. Did you make any notes? A No. Did Commissioner Wilson make any notes? A Not that I'm aware of. Now, did Commissioner Humphrey make any notes? A Not that I'm aware of. Before that meeting, did you tell Commissioner Wilson about what Julie Bowman had told you? A No. Are you the only one that knew it as far as you knew? A Just she and I. Right. Now, during that meeting of August 19 of 1998, we'll get to it in more detail, did you at all ever bring up or mention that Judge Harrison was fired by direction of the Governor's office? A During the meeting? The answer is no. A Oh, no. Okay. And you never brought it up during that meeting and KAY BUTLER, OCR, CVR (501) 868-8134 did not, that's correct. correct? 6% told Commissioner Wilson or Commissioner Humphrey that the Governor's office wanted her fired? A I never told her. After that meeting, on August 19 of 1998, did you ever tell Commissioner Wilson that the Governor's office ordered Judge Harrison discharged? A Not that I recall, but I think he became aware don't know, but I never did tell him. Do you know if Julie Bowman told him? A I don't know. Do you know if Marcus Devine told him? A I don't know. And basically on August 19 of 1999, [sic], MR. HOLMES: '98 MR. LAVEY: Thank you. That's a Freudian slip. Ten out of ten times, I'm doing it. BY MR. LAVEY: The Commission discharged Judge Harrison; is that correct? A Now, restate your question. Yes. On August 19 of 1998, as you testified, you never mentioned that the Governor's office had directed her to be discharged, did you, during the meeting of August 19 of 1998. And according to you, Julie Bowman was there; is that KAY BUTLER, CCR, CVR (501) 868-8134 Yes. And both of you know that the Governor's office has ordered her to be discharged; is that correct? A Yes. According to you, Ms. Bowman never mentioned that the Governor's office had ordered her to be dismissed, did she? A At the meeting? Yes. A No. Okay. And, again, during the meeting did Ms. Bowman ever mention that the Governor wanted Judge Harrison dismissed? A No. If you know and if you don't, say so, did the Governor's office order Judge Harrison discharged because of her written decisions? A I don't know. Do you know if the Governor's office ordered her discharged because of, among other reasons, the Reddick decision? A I don?t know. And you never tried to find out? A. What I received was through Ms. Bowman. Q, Okay. Now, did you infer that the reason that the 'Governor's office wanted Judge Harrison discharged was because of her written decisions? KAY BUTLER, can, cvn. (501) 868-8134 the discharge of Judge Harrison? A What do you mean to discuss the discharge? ?l A No. What did you infer from Ms. Bowman telling you that the Governor's office wanted Judge Harrison discharged? A That she was Grade 99, serving at the pleasure of the Governor, and they wanted her terminated. And no reason given other than that? A That's correct. That's what she told you? A Yes. Now, did Ms. Bowman know before the meeting of August 19, 1998, that you and Mr. Wilson were going to agree to discharge Judge Harrison? A I don't know. Did you tell her? A I just don't recall. Okay. Now -- I mean, after the lawsuit was filed in the present case, have you ever met with anybody at the Governor's office when lawyers are present and talk to them about this case; about the firing of Judge Harrison? A Would you restate that? After this lawsuit was filed, did you ever meet Sure. with anybody from the Governor's office; number one, to discuss Well, the reasons and why they did it, why you did it, and KAY BUTLER, COR, CVR (501) 868-8134 'Devine ever tell you that the Governor's office had been reviewing all of Judge Harrison's decisions for a year? 1A No. 71 what-have?you? A I discussed it with Marcus Devine. Okay. When did you have the discussion with Marcus Devine? A Well, approximately the time about the time we got sued or shortly thereafter. Okay. And was it just you and Mr. Devine? A Yes. Where, at the capitol, Governor's office, or at your place? A I believe it was my office. Okay. Would you please tell me what you said and Mr. Devine said at that time? A Generally, that we'd been sued and gave him a copy of the complaint as I recall and, again, his position was that she was a Grade 99, and she served at the pleasure of the Governor and it was our choice. Approximately, when did you have that conversation with him or how long after -- or was that for the lawsuit that was filed? A Yes. The first Complaint? Okay. And at that time, did Mr. KAY BUTLER, COR, CVR (501) 868-8134 Did Marcus Devine ever say anything about the fact that Judge Harrison did not have the same philosophy as the Governor or the Governor's office? And that's a reason why she was fired or the Governor's office ordered her fired? A No. Now, I'm going to direct your attention to August 19 of 1998 and ask you if you attended a meeting on that day where you, Commissioner Wilson, and Commissioner Humphrey was present, just the day of the discharge? A And was that at the time of the discharge with Ms. Bowman present? I'm going to get to that. A Okay. So you're talking about the same meeting? Yes, the meeting. A Okay. And Ms. Bowman was present; right? A Yes. Dave Greenbaum was not present; is that correct? A No. You never consulted Dave Greenbaum before that meeting to let him know that A What do you mean just prior to that meeting? I had consulted him previously at different times about different\ things. Right. No, but about you never did complain to him KAY BUTLER, CCR, CVR (5013 868-8134 about Judge Harrison or the performance of her job, did you? A Other than the time that I have told you about inquiring as to why her opinions were late. Right and A And the story about the Yes, I got that. Other than that, nothing at all? A That's the only one I can think of. Okay. And regarding Judge Greenbaum before the August 19 of 1998 meeting, did you ever go tell him that Judge Harrison was going to be fired? A NO. Did you ever get his input on whether or not she should be fired? A No. And if you know, did Julie Bowman ever get any input from Judge Greenbaum about whether or not Judge Harrison should be fired? A I don't know. Okay. And again as you've testified, did you make any notes at all during that meeting of August 19? A No. Did Commissioner Wilson? A Not that I'm aware of. And how about Julie Bowman? A Not that I'm aware of. KAY BUTLER, CCR, CVR (501) 868-8134 [said and who said it as best you remember it. .Q Thank you.., ?of us and referred to it and moved.that she be terminated. Based on the letter? He just moved that she be terminated at that 74+ Okay. As best you recall it at that time now, you had seen the letter from Gail Matthews beforehand; right? A Yes. Before that meeting, and at the time you saw it, was Gail Matthews' name redacted or did Commissioner Wilson just show you the letter and it was -- A I believe so. And it was not -- his name was not crossed out or redacted or anything like that? A I don't believe so. But at this meeting on August 19 of 1998, it was; is that correct? A As I recall. Why, if you know? A I don't know. Would you, please, as best you recall it, tell us what was A Well, as I recall it, he moved that "He" being Commissioner Wilson? A Commissioner Wilson. A Referred to the letter we had each had a copy in front KAY BUTLER, COR, CVR (501) 868-8134 specifically. Okay. And what, A Then I seconded it and Ms. Humphrey said that she would not agree. A made to the letter from Gail Matthews at that time? A A if anything, was -- then, And then, what happened? The motion carried. Okay. Yes. And the motion was based on that letter, Well, the motion was made. but -- A So from what you're saying, I understand -- the motion was just made that she be terminated. Any reasons given for the termination other than the letter? A didn't mention the name, that he made the motion to fire Judge Harrison and Commissioner Wilson then stated, A No reasons. Okay. Now, do you recall if at this meeting that after :fire Judge Harrison?" I mean You mean Commissioner Humphrey? Yes. Thank you. Do you recall that she said, you mean fire Judge Harrison?" KAY BUTLER, CCR, (501) 868-8134 the only reference was the letter was there, 'Commissioner Wilson said he had a letter from a lawyer, CVR 73 what happened. according to you? and he "What do you mean "What do _Koonce and Curdy and that if she wanted to, that she could make 76 A I don't recall that. Do you deny it? A I just don't recall it. Okay. Then, do you recall that Commissioner Wilson then stated that he had a letter and that the lawyer did not want to be identified, but that the lawyer stated that he tried to work with her about a joint petition scheduling and that he couldn't do it, and Commissioner Humphrey then stated that she was not going to vote to fire anyone based on an anonymous letter? A I don't really recall that. Do you deny that? A I just don't recall that. Okay. And you recall, then, if Commissioner Humphrey then asked Commissioner Wilson had he talked to Judge Harrison about the letter and he said, A ?And I don't recall that. Do you deny that? A I just don't recall it. But do you deny it? MR. HOLMES: He said he just doesn't recall. THE WITNESS: I just don't recall it. BY MR. LAVEY: 7 Okay. Now, do you recall also that Commissioner Humphrey then stated that she gets complaints all the time about Judges KAY BUTLER, CCR, CVR (501) 868-8134 motion to fire them, because of the complaints she gets on them? it was A I recall her making some similar statement. If that, whether it was stated that way, In substance, in essence. A -- I remember something similar to that. Okay. And then, at that particular time, do you recall that Commissioner Wilson then made reference to the Reddick opinion and to other decisions that Judge Harrison had written and that he stated that he had problems with her written decisions; "he" being Commissioner Wilson? Do you remember that being said by Commissioner Wilson at that time? A I really don't recall that. Do you deny that, sir? A I just don't recall it. Okay. Then, do you recall that Commissioner Wilson then made the motion again that Judge Harrison be discharged and you asked if Commissioner West had anything else to say? A I asked what? Commissioner West if she had anything else to say when Commissioner Wilson then made the motion for the second time? A I really don't recall saying that, but Do you deny it? A -- I won't deny it. And do you recall that she stated in substance that this KAY BUTLER, CCR, CVR (501) 868-8134 huge mistake to fire somebody because of written opinions and that it is controversial and it is not based on enough evidence to fire anybody? A I don't recall that. Do you deny that? A I just don't recall it. Okay. And then, do you recall you said you agreed with Commissioner Wilson? A Yes. And do you recall that she said, "Make sure that you note my objection, because I don't want any part of this."? A I In essence. A -- know she said something similar to that. Okay. Regarding yourself, were there any standards that were in place regarding whether or not to measure whether or not a person should be discharged and compare Judge Harrison to those standards on August 19 of 1998? A I don't know if I understand the question. Okay. Basically, she was discharged based on the motion of Commissioner Wilson; is that correct? A Right. Were there any standards or written standards that you were basing this decision upon, any kind of workers' comp standards or OPM standards that you were basing your motion -- KAY BUTLER, CCR, CVR (501) 868-8134 you agreed or Commissioner Wilson based his motion and you agreed to discharge Judge Harrison? A Not that I know of. Okay. And again at that particular time on August 19 of 1998, did you compare Judge Harrison's work with any other Administrative Law Judge and based on that, she should be discharged? A Well, I've told you about the that she was number one in the delay of opinions. That was in the first part of '98; is that correct? A I can't tell you exactly the time frame. But other than that, as you've Okay. We'll get to that. testified, there were other ALJs who also had -- were, like, behind in the processing of their cases also; is that correct? A Yes. Now, the time frame I referred to she was had the most. And do you know what time that was? A Well, it was -- I know it was '98. A '98. But do you know what part of '98? A Well, I thought it was along about the time she was fired, maybe. I still don't know. Okay. And do you recall if after you after that after that meeting on August 18 of 1999, did you tell Julie KAY BUTLER, CCR, CVR (501) 868-8134 Bowman to go down and tell Judge Harrison she was discharged? A No. And, again, no letter was written informing Judge Harrison why she was discharged? A I didn't write one. And as far as you know, neither did Commissioner Wilson, did he? A I don't know. Do you know if CEO Julie Bowman wrote such a letter? A I don't know. And, again, you never gave Ms. Harrison an opportunity to come in and give her side of the story before her discharge on August 19; is that correct? You or Commissioner Wilson? A I didn't and as far as I know, they didn't. And before the previous meeting, again, three or four days to a week beforehand when it was just you and Commissioner Wilson, you never brought Judge Harrison in to get her side of the story? A I didn't ask her to come in, no. Did you ask her for her side of the story at all on anything; Judge Harrison? A Well, I've told you that, you know, the Governor's office told Ms. Bowman told me that they wanted her removed and there's really no side of the story to it. But you basically based your motion to discharge her on KAY BUTLER, COR, CVR (501) 868-8134 'any decision she had written? 8U reasons other than what was came from other than her just being a Grade 99 and an at-will employee; is that correct? A I didn't make the motion. But you affirmed it; is that correct? You seconded it? A That she be terminated. Exactly. And there was nothing mentioned there about her being discharged only because she was a Grade 99 and an at-will employee, was there? A The opinion was just that she be terminated. Right. Well, okay. According to you, okay. And so you then went down or Commissioner Wilson then went down and told her she was discharged? A I believe Julie Bowman did. Okay. And do you know what Julie Bowman told Ms. Harrison at that time? A No. As far as you know, regarding the Governor's office, did they ever call you to criticize Judge Harrison pertaining to A No. Did Marcus Devine ever verbalize anything like that to you? A No. MR. LAVEY: May I have about two or three minutes, please KAY BUTLER, CCR, CVR (501) 868-8134 Digitally signed by Frederick S. "Rick" Spencer DN: cn=Frederick S. "Rick" Spencer, c=US, o=Spencer Law Firm, ou=Attorney at Law, email=rs@rickspencer.com Reason: I attest to the accuracy and integrity of this document Location: Spencer Law Building in Mountain Home, Arkansas Date: 2005.09.01 13:51:37 -05'00' 83 I I A STATE OF ARKANSAS COUNTY OF PULASKI I, KAY BUTLER, A CERTIFIED COURT REPORTER AND NOTARY PUBLIC, in Little Rock and for the aforesaid county and state, do hereby certify that the witness, ELDON F. COFFMAN, whose testimony appears in the foregoing EIGHTY-TWO (82) pages was duly sworn by me prior to the taking of testimony as to the truth of the matters attested to and contained herein and that the deponent and parties did not waive the signing of the deposition by the deponent. I FURTHER CERTIFY that the testimony of said witness was taken by me, and was thereafter reduced to typewritten form by me or under my direction and supervision. SAID DEPOSITION was examined and read over by the deponent. The deponent desires certain changes he made to his deposition as indicated on the Errata Sheet, which is attached to the signature page. (All parties, through their respective attorneys who appeared at the deposition, stipulated that changes to the deposition could be made out of the presence of this officer.) I FURTHER CERTIFY that the deposition is a true and accurate record of the testimony given by said witness, to the best of my understanding and ability. I FURTHER CERTIFY that I am neither counsel for, related to nor employed by any of the parties to the action in which this deposition was taken. I FURTHER CERTIFY, that I am not a relative or employee of any attorney or employed by the parties hereto, nor financially interested or otherwise, in the outcome of this action. WITNESS, MY HAND AND SEAL, THIS DATE: OCTOB 31, 1999. 544 Kay Butler,(CVRf Certified Court Reporter and Notary Public L. S. Certificate No. 284 My Commission Expires: 10*21-05 KAY BUTLER, CCR, CVR (501) 868-8134 Visit us on the internet at been worried also.-Pickens is a lawyer who" represented insurance companies before he was appointed insurance commissioner by Gov. Mike Huckabee, who is up tor election this year. Pickens wrote a letter to Coffman announc? . ing his opposition to a premium tax increase, even though one hasn?t been proposed. He said: believe this position is consistent with Governor Huckabee?s executive order requir-' ing all state agencies to consider the impact their decisions will have on Arkansas?s fami- lies.? In other words, it?s bad for families to increase insurance rates, even those that com? pensate injured workers, some of whom, pre- sumably, have families. Something else to look out for: Word is that employers are leaning on Coffman to replace some of the commission?s administrative law judges, the ones that management suspects are sympathetic to workers. Coffman won?t com- ment. Workers beware Other mischief for injured workers is in the mill for the 1999 legislative session. 7 The big employers in the state (Wal-Mart, Tyson, et al.) gota new pro?management, anti- ?qrnpensation law/passed in I 993?ib?-t?j?y 163ml not a" hating-anemia?: protectiontfor worker's"; ?7 .The new bill would eliminate?the second [Injury Fund, which helps pay workers'Who become totallypand permal nently disabled because of agsecond work- Cq?ginu?d?om?ym'pqg? related injury. A grisly eXamplef A worker has lost an eye, and been compensated for it, while working for one company. Later, while working for another. company, he or she loses the other eye, becoming totally and permanently disabled. Through the Second Injury Fund, the state helps compensate the worker for the loss of both eyes. Other- wise, the second employer would have to pay the worker for the loss of both eyes, which of course is a larger amount than is paid for the loss of one eye. . Without assistance from the Second Injury Fund, employers would be reluctant to hire a worker who was already partially disabled. Backers of the new bill will argue that federal law now prohibits job discrimination against disabled workers. But only 17 percent of all the employers in Arkansas are covered by the federal law. Recuperating Je?' Porter, the Arkansas Democrat-Ga- spending practices by Batesville Prosecm'ing Attorney TJ. Hively, su?'ered a stroke while on May 18, and was rushed to a hospital. "fradi?fti?emem?in Ppae'r having a ?long-i has. droppedthe ad.) :Democmt4Gaiette . managing editor Bob Liitge?n said Porter is a f?veryg'capable? reporter? who _'Was "recruited because ofvhisrecord as managing editor at the Batesyille Guard. Porter said he: expects to return to work this week or next. I :Staley'v settles up :ZPulaskiCounty Clerk Carolyn Staley has been criticized for many things, record paying off discrimination lawsuigi?d not- been mentioned until Joe Childers brOUght it I out. Childers, who is running against Staley in the Democratic has complained about taxpayers? money being used to settle dis? crimination lawsuits Central Arkansas Risk Management As? sociation, a self-insurance program for' Pulaski County and other local governments (meaning public money pays the claims), has settled two employment discrimination suits against for $198,009 the other for larger m; mastic; df55i?minsuf-Hmoo 9529mm 1 I 6661??! swnuu'??i ?aware Luf?ebti ?uiiu?gf?d?tts?? 9w I s?vdimi?pimi .- if?irfi?sihis??sdvt?mbWISIi "awi??w uopestiadui?og 519513635? KELLEY COOPER SUMBLES 9 6 BEFORE THE ARKANSAS COMPENSATION COMMISSION CLAIM NO. E603208 TRACY REDDICK, EMPLOYEE CLAIMANT BINKLEY COMPANY, EMPLOYER RESPONDENT AMERICAN INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED JULY 14, 1997 Hearing before Administrative Law Judge Eileen W. Harrison on January 16, 1997, at Pine Bluff, Jefferson County, Arkansas. Claimant represented by the Honorable Attorney at Law, Little Rock, Arkansas. Sheila, Campbell, Respondents represented by the Honorable Michael Alexander, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was held in this matter on January 16, 1997, at Pine Bluff, Arkansas. The parties stipulated that the employer/employee relationship existed on March 1, 1996. It was further stipulated that, if the claim is found compensable, the claimant would be entitled to a temporary total disability rave of compensation of $165.00 per week and a?jmrmanent partial rate of $154.00. Claimant contended that she sustained an injury in the course and scope of her employment on March 1, 1996, and is entitled to temporary total disability through October 1, 1996. Claimant further contended entitlement to medical benefits. 9 9 Respondents contended Uthat claimant?s injury was substantially occasioned by the use of drugs and is, therefore, not compensable. Pertinent medical records and reports were submitted into evidence and reviewed, together with the deposition of Ms. Sherry Ann Oldner and Mr. Rudolph Jagdharry. Claimant testified and stated that she is 29 years old and completed the eleventh grade. Claimant began working for the respondent in 1995 and was injured March 1, 1996. At the time of her injury, claimant was working as a machine operator and had worked two months on a particular machine, which makes the tap in the rod end. Claimant?s shift extended from 7:00 a.m. to 3:00 p.m. Claimant recalled that she was injured sometime in the morning?before the first morning break. Claimant explained that on the day of her injury, she wore layers of clothing due to the cold temperature in the plant. Claimant identified a photograph of the machine upon which she was working and further identified the panel which operated the machine. Claimant stated that she first checked the coolant level of the machine before beginning the regular work shift. Claimant testified that on the morning of March 1, 1996, her coolant hose was out of place. Claimant had not been instructed to refrain from placing her hand in the machine to replace the coolant hose. Claimant believed that it was her primary duty to keep the machine operating and producing; Claimant testified that her machine was in general l\ 6 9 disrepair and needed maintenance work? Claimant explained that the hoses in her machine were worn out and always leaking. Claimant identified an additional photograph depicting the condition of these hoses. It is claimant?s belief that if the hoses had been replaced and the machine maintained, then, the accident would/not have occurred. Claimant identified a third photograph depicting a protective gate around the machine s?ua operated. It was claimant?s testimony that the protective gate was placed on that machine following her accident. Claimant has not received any medical benefits over an initial $8.74 paid by her employer. It was claimant?s testimony that the medical care provided by Dr. Peeples was authorized tar her employer, butehas run: been paid tn! the employer. Instead, claimant is attempting to gun! off her outstanding balance with Dr. Peeples. Claimant recalled the: she was referred to Dr. Peeples by the employer. Claiman: testified that she did not choose any of the physicians who have treated. her. Claimant explained that she had. been rendered unconscious as a result of the accident.- Claimant was made aware that her claim was being controverted on March 14, 1996. Claimant was informed the: the bill was not being paid by the hospital administration. Claimant denied smoking marijuana on March 1, 1996. Claimant stated that her boyfriend regularly smoked marijuana, but she did not. 9 On cross-examination, claimant testified that she had taken drug tests prior to her accident. Claimant acknowledged that she has occasionally smoked,marijuana in her life. Claimant described her job duties with the help of photographs. Claimant explained that she would insert the rod end into the machine and then ?clamp the rod in place. Claimant then pushes buttons on the control panel of the machine. Claimant identified these buttons in a photograph marked as claimant?s Exhibit 2. When claimant pushed these buttons, a drill and tap would descend to process the rod. Claimant agreed that she would not ordinarily' have been required to reach into the machine. However, claimant insisted that due to the disrepair of her machine, she was required to place her hand insi%? the machine in order to operate the machine. Claimant agreed that, if her machine had been in perfect working order, there would be no need for her to place her hand inside. Claimant could not recall the average number of rods which are processed during the course of a work day. However, claimant explained that her production had been down, due to the condition of the machine. Claimant testified that, as she reached in to replace the coolant hose, a part of her sleeve became entangled in the moving parts of the machine. Claimant stated that she could not reach the emergency stop button. Claimant estimated that she had started the machine 15 seconds before she reached in to replace the fallen coolant hose. 9 Claimant agreed that she had reached in the machine on many previous occasions to replace the coolant hose, and did not get hurt. Claimant was unaware that blood and urine samples were taken while she was in the hospital, because she was unconscious at the time the samples were taken. Claimant testified that she had stopped smoking marijuana one year before the accident. Claimant stated that on the day of the accident, were wet as a result of work conditions. It is claimant?s belief that as a result of her wet clothes, her sleeve was heavy and hung down, causing it to become caught in the machine. Everett Dunnley was called to testify by the respondent and stated that he has been employed eight years by the respondent. Mr. Dunnley is general foreman and was the claimant?s supervisor at the time of the accident. Mr. Dunnley testified that immediately following the accident, the machine was inspected in! the maintenance. department. Mr. Dunnley testified that there were no problems with the machine on the date of the accident. Mr. Dunnley-described the claimant as an above-average employee. Mr. Dunnley stated that the coolant hose could have been adjusted without the machine operating. Mr. Dunnley further stated that employees had been instructed not to put hands in the machine while the machine is running. .9 On cross-examination, Mr. Dunnley acknowledged that he did not personally train claimant. Mr. Dunnley also agreed that the safety gates were added to claimant?s machine after the accident. Finally, Mr. Dunnley stated that the coolant hose does vibrate and move while the machine is in operation. Having considered. the evidence of record as to meeting the burden of proof impartially, and without giving the benefit of doubt to either party, the following findings of fact and conclusions of law are hereby made: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The Arkansas Workers? Compensation Commission has jurisdiction of this claim. 2. The claimant has failed toidemonstrate that the presumption created by Ark. Code?Ann. violates Due Process and the Equal Protection Clauses of the U. 8. Constitution. 3. The Fourth. Amendment bestows 21 fundamental right guaranteeing the privacy and security of individuals against an unreasonable search conducted by the Federal Government and this fundamental right is applied to State Government through the ?Due Process and Equal Protection Clauses of the Fourteenth Amendment. 4. Suspicionless drug testing of all injured employees is encouraged and authorized by state law pursuant to and therefore constitutes a search within the meaning of the Fourth Amendment. a 9 S. The activity engaged in. by the respondent sanctioned by state law was an unreasonable search_ and violated claimant?s right to due process. 6. Ark. Code Ann. violates the Fourteenth and Fourth Amendments of the U. S. Constitution. 2 2 7. The evidence demonstrates that urine and blood specimens were collected without the knowledge or consent of the claimant a?d.without authorization of a treating physician and the individuals responsible for collecting the specimen failed to appear to offer authenticating testimony. 8. The positive drug screen offered into evidence by the respondent lacks credibility sufficient to create the presumption that claimant?s work?related accident was substantially occasioned by the use of illegal drugs. 9. The claimant has shown, by a preponderance of the evidence, that she sustained an injury arising out of and in the course of her employment. 10. Claimant has shown, by a preponderance of the evidence, that she remained temporarily and totally disabled from the date of injury through October 1, 1996. Claimant was injured when her arm became caught in the machine she was operating, which pulled her entire arm into the machine's moving parts before the emergency cut?off switch was activated. As a result of the accident, claimant 0 sustained severe injuries including a multiple comminuted fracture of the left humerus and a compound fracture of the ulna, which was protruding through the skin. In addition, claimant sustained.a "lacerated.spleen and a torn.mesentery of the proximal jejunum." (C. Ex. 1, p. 8) Claimant was brought to the emergency room immediately after the accident where strong analgesics and sedatives were administered in anticipation of surgery. Claimant testified that she was unconscious and unaware that urine and blood samples were collected at the hospital for the purpose of performing a drug screen. The evidence demonstrates that the urine sample which tested positive for marijuana was collected from a foley catheter bag. Claimant?s claim for workers? compensation benefits was denied pursuant to Ark. Code Ann. At the close of claimant?s evidence, claimant contended that this section of Act 796 violates the claimant?s right to due process, as well as equal protection, and is broadly overdrawn. Pursuant t1) Ark. Code a positive drug screen creates the presumption that the accident was substantially' occasioned by' the use of illegal drugs and the compensability of an1 injury may be challenged and denied. Where a state legislature seeks to deprive persons of fundamental rights, it must prove to the U. 8. Supreme Court that the law is necessary to promote a compelling state 6 ;:terest. Similarly, if 23 law burdens a Class of persons pecause of the suspect traits cu; race, national origin 0? status as a resident alien, the Court will subject the raw to strict scrutiny to dntermiuo if it promotes 5 compelling interest of the government Where no fundamental ;ghts are restricted and where the law classifies persons C: a non-suspect basis for the exeruisv u: liberties, then, the Law need only rationally relate any legitimate end 05 lgcvernment, and tin: burden. shilt:: the state txa the ;;dividual asserting the constitutional challenge. As long as . . - . . :gere is any conceivable baSlS tor liuding such a rat10??* re;ationship, the law will be Uphuld. The United States Supx?wmv mun-5t has consistently ed rebuttable presumptions in civil utatutes that do . . pinge on iundamental rights 0 1 i 1 suspect classes have applied the same "rational h??i standard enumer3= The Supreme Court has held: 'l?lmt a legislative in? of one Lact from evidence 01. may not; constitute a denial of dun . P?vass of law or a denial of the equal I _Ptn(uction the law, it is only essential xhat there shall be some rational between the fact proved and the \Htimate faCC presumed and that the infu\nuvo of one fact from proof of another Nhull not be so unreasonable as to hu a purely arbitrary mandate. Mghilgmx). K.C.R. Co. v. Turnip Seed, 219 11]? 35, pg. 43 (1910). The Full Commission, relyixu? mm the case, recently held that the rebuttublp prp?umption createc 97 . 9 *0 Ark. Code Ann. does not violate the equal protection clause of the United States Constitution. Andre Jefferson.v. Continental Loss Adjusting, Full Commission Opinion filed April 11, 1997 (WCC In that case, the Commission found that placing a greater burden on claimants who test positive for Substance use or abuse is rationally related to a legitimate state purpose of providing a safe work place, as well as protecting employees and ensuring payment of cmly claims which are legitimate and causally related to the work. Similarly, claimant has failed to demonstrate that Ark. Code Ann. violates the due process clause of the Fourteenth Amendment to the United States Constitution. Claimant testified that she did not consent to the collection of urine and blood specimens, and, further, was completely unaware that the samples had been taken. The Fourth Amendment of the U. S. does bestow a fundamental right upon the individual, guaranteeing the privacy and security of the individual against unreasonable search and seizure conducted by the Federal Government. This fundamental right is applied to state government by the due process clause of the Fourteenth Amendment. Drug testing is recognized as a search within the purview of the Fourth Amendment. Schmerber v. California, 384 U.S.757 (1966). The constitutional guarantees of the Fourth and Fourteenth Amendment are designed to prevent abuse of personal rights by 10 (-M 9 state or federal government and does not refer to dealings between individuals. Gever v. First Arkansas Development Finance Corp., 245 Ark. 694, 434 301 (Ark. 1968); Davis v. Fulton County, Ark. 884 F. Supp. 1245 (E. D. Ark. 1995) The United State Supreme Court has plainly stated: We do not speak to drug testing in the private sector, a domain unguarded in! the Fourth Amendment constraints. S. v. Jacobsen, 466 U. S. 109, at page 113 (1984), Chandler et al v. Miller, Governor of Georgia, U. S. (Decided April 15, 1997). Consequently; claimant. must demonstrate that the search conducted in her case was the result of state action. State action is present when legislation commands or encourages a specific activity or result or recognizes that it is legitimate. Peterson v. Citvfof_Greenville, 373 U. S. 244 (1963); Robinson v. Florida, 378 U. S. 153 (1964). Ark. Code Ann. states: Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of aunt of the aforementioned- substances in the employee?s body. The U. 8. Supreme Court addressed the question of state action :n1 connection with drug testing policies in Skinner v. Railroad Labor Executives, 489 U.S. 602, 109 S. Ct. 1402 (1989). This case involved both permissive and mandatory drug testing performed by private railroads pursuant to and in compliance with Federal regulations. The Supreme Court found 3 11 9 that even the permissive drug testing performed by the private railroad.companies constitutedaagovernment search giving rise to Fourth Amendment scrutiny. "The fact that the government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one." (Skinner, at pg. 615) The Supreme Court found. that the Federal regulations had removed all legal barriers to the testing and had made plain a strong preference for drug testing and had mandated that the railroads not bargain away the authority to perform the test. The Supreme Court held that these factors were clear indices of the government?s encouragement, endorsement and participation, which implicates the Fourth Amendment. (Skinner, at pg. 615) A search undertakerg,g pursuant to ?ll?9? that producesaipositive result will provide the employer with a strong defense to any workers? compensation claim and therefore creates a strong incentive to search all injured employees. Moreover, this section of the Workers? Comp. Act has eliminated any? notice or 'written consent requirements regarding the collection and testing procedures anui negates any civil remedies available tub an employee who has been subjected toaasearch.while unconscious. Finally, law enforcement personnel are authorized to conduct searches without the usual probable cause requirement found in other state enacted implied consent laws regarding DWI offenses. Ark. Code Ann. ?5-65?202 and require that 12 9 the law enforcement officer ordering and administering drug and alcohol tests have a reasonable cause to believe the particular person being searched was in control and operating the vehicle while intoxicated. In other words, there must be an individualized suspicion of wrongdoing before the search is conducted. In summary, this section of the Workers? Compensation Act encourages, legitimizes, and endorses suspicionless searches of all injured employees in the State of Arkansas and therefore implicates the Fourth and Fourteenth Amendments. The Fourth.Amendment does not proscribe all searches but only those that are unreasonable. To be reasonable under the Fourth.Amendment, a search.must be based on individualized g; 5 suspicion of wrongdoing. However, the U. S. Supreme Court in Skinner, supra, first set out a "special needs" exception to the general rule and held that in limited circumstances (emphasis added), where the privacy interest implicated.by the search are minimal and where an important governmental interest furthered by the intrusion would be -placed in jeopardy far a requirement ?of individualized. suspicion? a search may be reasonable despite the absence of such suspicion. (Skinner, at pg. 624) In Skinner, supra, the Federal regulations reviewed by the Cburt, required suspicionless drug testing c?f all railroad employees in a safety sensitive position who had been 13 6 9 involved in a railroad accident which had resulted in fatality or had involved hazardous materials. The Supreme Court found a compelling state interest in protecting the safety of the general public. This was balanced against the employee?s privacy rights which the Court felt were offset by two important considerations. First, the regulations themselves set ?mu: with specifically the procedures involved 5J1 the testing which were designed to reduce the intrusiveness of the collection process; to ensure accuracy and fairness and to provide the employee with sufficient notice of the triggering event to the search? The Court stated, "The permissible limits of such intrusions are defined narrowly and specifically (emphasis added) in the regulations that authorize them, and. doubtless:gars well known to covered employees.? (Skinner, at pg. 622) Second, the Court found that railroad employees have a diminished expectancy of privacy since the industry is heavily regulated by the government to ensure safety. In this case, Ark. Code Ann. merely authorizes reasonable and responsible testing, but fails to narrowly and specifically-set out what constitutes reasonable and responsible. Therefore, this section of the new act removes all legal barriers to suspicionless searches but fails to outline adequate procedures to replace any 14 mm n; we" I 1. ?hr probable cause or warrant requirements.1 Moreover, there is no evidence that claimant was involved in a heavily regulated industry, with a diminished expectation of privacy. On the other hand, there is evidence that claimant had undergone drug testing on prior occasions as a condition of her employment with the respondent and claimant was in an emergency care situation, where intrusions for the purpose of medical care are expected and even sanctioned by state law. (See, Ark. Code Ann. Moreover, the evidence demonstrates that the foley catheter was inserted for medical reason and not purely for the purpose of collecting a specimen for drug testing. However, this is outweighed by the fact that the claimant was unaware and virtually unconscious at the time specimens were collected and claimant was never informed that drug testing had been ordered and conducted on the specimens, prior to the search. For all practical purposes, this search was performed outside the presence of time claimant. The general public has a high expectation of privacy when they are not at home, particularly if a search is conducted without notice, without a warrant and without probable cause1For example: The U. S. Department of Health has produced guidelines for federal work place drug testing i11 addition to minimum standards for laboratory certification. These guidelines address, chain of custody, confirmation of test results, medical review of test results and quality assurance procedures. The Arkansas Department of Health Guidelines are required by Ark. Code Ann. le administerimg of drug testing tar state law enforcement personnel. lS The U. S. Supreme Court has approved state compelled, suspicionless searches in certain limited circumstances. In Skinner, supra, the Supreme Court found a compelling state interest when the testing involved railroad employees in safety sensitive positions, where the safety of the general public was placed at risk. Testing without a showing of individualized suspicion was essential, the Court explained, if these vital interest were to be served. In assecond case, Treasury Employees v. Von Raab, 489 U. S. 656 (1989), drug testing was conducted by the government as a condition of promotion by treasury employees to positions that involved drug interdiction or to positions which allowed the employee to carry a firearm. Again, the U. S. Supreme Court found that the safety and security of the general public was a compelling state interest, which offset the employee?s privacy interest. In Veronia School District v. Wayne Acton, 515 U. S. (1995), the Court approved a random testing program for high school athletes by noting that students within the school environment have a lesser expectation of privacy than members of the adult population. The Court stated that a proper education environment requires close supervision of school children, as well as enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. In the instant case, there was no evidence that claimant was engaged in safety sensitive work which would pose 16 9 - a threat to the general public, nor was claimant involved in law enforcement activity. Finally, claimant cannot be compared with a minor school child under the care and custody of a public school system. The promotion of a safe and drug free work environment can be accomplished through the implementation of drug and alcohol policies by private employers without the intervention of state authority. Moreover, these policies may include post-accident testing. As made clear earlier, drug testing in the private sector is a domain unguarded by the Fourth and Fourteenth amendment. Private employer actions to detect and deter drug use has been recognized as a legitimate reason fOr termination. Grace Drillinq v. Directory Employment Security, 33 Ark. App. 81, 790 S.W. 2d 907 (1990); George?s Inc. v. Director, Employment Securitv Division, Ark. App. 900 S. W. 2d 590 (1995). In fact, randc: company-wide drug testing where the employees have notice the: such testing will take place as a condition of their employment is a more effective and less arbitrary means of promoting a drug free work place and preventing the occurrence of accidents. In summary, the implied consent provision of the Workers? Compensation Act fails to provide specifically draw: safeguards against arbitrary intrusions and unreliable testing methods while it removes civil remedies, as well as other legal barriers, against suspicionless searches conducted 17 without notice, knowledge or written consent, absent a compelling justification involving the public safety. The Supreme Court recently held: "Where public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged." ChandlerJ et al v. Miller, Governor of Georgia, U.S. (Decided April 15, 1997), (At pg. 17 of Slip Opinion). Claimant has therefore shown that the search conducted kn! state authority, pursuant t1) Ark. Code Ann. was an unconstitutional violation of her right to due process in that it violated. claimant?s fundamental right to protection against unreasonable search as guaranteed by the Fourth Amendment. The facts of this case illustrate the obvious potential abuses eliminated by the specific procedures reviewed by the Supreme Court in the Skinner case. Ark. Code Ann. violates the Fourteenth and Fourth Amendments to the U. 8. Constitution. Claimant contended that her right to due process and equal protection had been violated, but failed to object to the admission of the unconstitutionally obtained evidence. Claimant testified that she was unconscious at the time of the collection and testing procedures. Claimant?s testimony in this regard is strongly supported by the medical evidence. Claimant was brought to the hospital at 8:50 in severe pain with significant traumatic injuries. 18 Claimant?s arm was described by the nurse in attendance as "malformedfact, claimant?s arm had been fractured in several places and the bone was protruding through the skinaddition, claimant had sustained? serious abdominal trauma v??x?l resulted. in the rupture of the claimant?s spleen. ?The emergency room report indicates that claimant was immediately placed on an IV and appropriate medication. was introduced, including 100 milligrams of demerol at 9:05 and two milligrams of versed at 9:20. (R. Ex. 1, p. 17) The 51st Edition of the Physician's Desk Reference describes demerol as a "narcotic analgesic with multiple to morphine." (See, pg. 2438). The 28th Edition of Dorland?s Medical Dictionary defines "narcotic" as an agent which produces insensibility or stupor, applied especially to any drug that has morphine?like actions." The 223 also indicates that demerol?s effects can be heightened if used in conjunction with other tranquilizers. Versed was the second medication administered to claimant. Versed is described in the Physician Desk Reference as a short acting benzodiazepine, a tranquiliaer, which produces "a high incidence of partial or complete impairment of recall for several hours after administration". (At pg. 2324?2325). The 223 recommends that dosage not exceed 2.5 mg. Versed is 21 drug primarily used as part of an anesthetic process and is; recommended for use with the induction of general anesthetic or to be administered to patients during 19 complicated and uncomfortable medical procedures so that the patient is simply unaware of what is happening. (See, Egg, pgs. 2324-2325). I Ms. Sherry Oldner is chief nursing officer for the hospital'where claimant was initially treated. Ms. Oldner testified as an authenticating witness to the efficacy of the drug screen. Ms. Oldner indicated that she was present when claimant was brought in for treatment and stated that claimant was "coherent"?and otherwise aware at the time the urine and blood samples were collected. In View of the nature of claimant?s injuries and the medication administered to claimant, this testimony'is completely lacking in credibility. There are additional factors which undermine the credibility and efficacy of the collection and sealing process which purportedly took place in this instance. First, clearly, claimant did. not know these specimens had been collected at 9:30 and 9:45. In fact, the collection form does not bear claimant?s signature. The only signatures on the collection form are the signatures of Erika Friedrich and Sheena Hill. (See, R. Ex. 2 to deposition of Ms. Oldner) Neither Ms. Friedrich nor Ms. Hill showed up to testify and verify how these samples were collected and sealed. It is not clear whether these two individuals were hospital employees or employees of the respondent. Ms. Hill and Ms. Friedrich signed a section on the form confirming that the specimen had been presented by claimant and in the presence of the 20 JJ rah,? claimant. Apparently, Ms. Hill and Ms. Friedrich placed a very liberal interpretation.on this procedural requirement and may have similarly interpreted other procedures. Ms. Oldner?s testimony was the only testimony offered ?to establish the chain of custody beginning with collection and sealing of the samples. However, Ms. Oldner?s testimony demonstrates that she possessed no personal knowledge of when these samples were actually collected and how they? were? labeled, sealed. or forwarded. for testing. Rather, Ms. Oldner appears to simply read from the testing forms. Moreover, Ms. Oldner indicates that she authorized the collection of these specimens. However, the "final report? admitted into evidence seems to require the authorization of the physician, not the head nurse. There is no signature of the physician and there is no physician name typed in at the head of the form. Ms. Oldner certainly did not sign this report and her name does not appear anywhere on the report form as an authorizing agent of the hospital. Finally, a readimg of the emergency room report outlines the procedures which took place before claimant was brought to the operating room. There is no mention of an order for a drug and alcohol screen. Rather, the medical records describe an emergency situation where the patient is hastily prepared for surgery, with very little opportunity for additional specimen collection. In summary, the evidence demonstrates that urine and. blood. samples were collected a 21 without the knowledge or consent of claimant and without authorization of a txeating physician and the individuals responsible for collecting and sealing the specimens failed to appear to offer authenticating testimony. A presumption is merely an inference as to the existence of one fact from the known or proved existence of some other fact. Shawl v. Katzenstein, 172 Ark. 933 (1927). In the instant case, the positive drug screen admitted into evidence in this case simply lacks credibility sufficient to create any presumption that claimant?s work-related accident was substantially occasioned by the use of illegal drugs. The claimant was injured when her hand was caught in which caused extensive a machine without proper guards, injuries established by medical evidence, undoubtedly supported 13/ objective findings. Claimant has therefore shown, by a preponderance of the evidence, that she sustained an injury arising out of and in the course of her employment. The medical evidence demonstrates that claimant remained temporarily and totally disabled from t?ua date of injury through October 1, 1996, when she was released add assigned impairment by her treating physician. MAE Respondents shall pay claimant disability benefits consistent with the above opinion. Respondents shall pay all reasonable, necessary and related medical benefits. 22 f3}, All amounts accrued and unpaid shall be paid in lump sum and without discount. Claimant?s attorney? is entitled to receive the maximum attorney?s fees. This Award shall bear interest at the legal rate until paid. 1 Pursuant to Coleman v. Holiday Inn, 31 Ark. App. 224, 792 345 (1990), the claimant's portion of the controverted attorney?s fee is to be withheld from, and paid out of, indemnity benefits and remitted, by the respondents, directly to the claimant?s attorney. IT IS SO ORDERED. 0 1 . HARE w. Administrative Law Judge 23 BEFORE THE ARKANSAS COMPENSATION COMMISSION CLAIM NO. E603208 TRACY REDDICK, EMPLOYEE CLAIMANT BINKLEY COMPANY, EMPLOYER AMERICAN INSURANCE CO., CARRIER RESPONDENT OPINION FILED MAY 15, 1998 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Claimant represented by SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas. Respondent represented by ROBERT L. HENRY, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Affirmed in part; reversed in part; and vacated in part. Respondent appeals from a decision of the Administrative Law Judge filed July 14, I997 finding that claimant failed to demonstrate that the presumption created by Ark. Code Ann. violates due process and the equal protection clauses of the United States Constitution; that the drug screen results entered into evidence lacks credibility; that claimant sustained a compensable injury; and that Ark. Code Ann. 11?9- 102(5)(B)(iv)(c) violates the Fourth and Fourteenth Amendments to the United State Constitution. After conducting a de novo review of the entire record, we find. specifically that claimant failed to demonstrate that the presumption created by Arkl Code Ann. 11?9- Reddick-E603208 2 102(5)(B)(iv)(b) violates the due process and equal protection clauses of the United States Constitution. Accordingly, we affirm this finding. We further find that claimant has failed to prove by a preponderance of the evidence that the positive drug screen pffered into evidence lacks credibility, and we find that claimant has failed to prove by a preponderance of the evidence that claimant has sustained a compensable injury. Therefore, we reverse these findings. Finally, we vacate the finding of the Administrative Law Judge that Ark. Code Ann. 11-9- 102(5)(B)(iv)(c) violates the Fourth and Fourteenth Amendments of the United States Constitution. At the hearing held on January 16, 1997, claimant contended that she sustained a compensable injury on March 1, 1996, after reaching her left arm into a machine without first turning the machine off and that the presumption created by Ark. Code Ann. violates the due process and equal protection clauses of the United States Constitution. Respondent contended that claimant?s injury was substantially occasioned by the use of drugs and is therefore not compensable. In her opinion, the Administrative Law Judge not only found the claim compensable after discrediting evidence offered into evidence by claimant, but also raised and advocated on her own motion a constitutional issue never raised by either a Reddick~E603208 3 party. Our de review of the entire record reveals that claimant never questioned the validity of the drug screen, she never questioned the authenticity of the drug screen results, and she never questioned the constitutionality of respondent?s ability to test a claimant for the use of illegal drugs under Ark. Code Ann. 11-9- The only person in this case to raise these questions was the Administrative Law Judge. However, she did not raise these questions in advance of the hearing, which would allow respondent the opportunity to offer evidence and respond to these issues. The Administrative Law Judge threw out 9r excluded from consideration a drug screen as ?fruit of the poisonous tree? when in fact claimant, herself, never contended, alleged or argued that the tree was, in fact, poisonous. The undisputed facts in this case are set forth as follows: 1. Claimant is a 29 year old female. .2. Claimant sustained a serious injury to her left arm when she reached her arm into her machine at work without first turning off the machine. 3. Claimant was immediately rushed to the emergency room where she was prepped for surgery. 4. A Foley catheter was inserted. 5. Claimant was administered pain killing drugs. 6. A urine sample was taken from the Foley "Way: ReddiCk-E603208 4 catheter bag and placed in a sealed uncontaminated container and sent to a laboratory for testing. 7. The urine sample tested positive for marijuana. The iny constitutional issue raised by claimant at the hearing is that Ark. Code Ann.?? relied upon by respondent contains a rebuttable presumption which violates her right to due process and equal protection created by the Fourteenth Amendment of the United States Constitution. The constitutional issue raised by claimant has previously been addressed by this Commission in Andre Jefferson v. Continental Loss Adjusting, Full Commission Opinion April 11, 1997 (E405575). See also, National Home Center Inc., 61 Ark. App. (March 18, 1998). In Andre Jefferson we found that the rebuttable presumption was constitutional. This burden is placed upon the party with greater access to the relevant evidence. In we further found that placing this burden on the claimant is rationally related to the legitimate state purpose of returning the Arkansas Workers' CompenSation system to a state of economic viability while ensuring that legitimately injured workers receive benefits as well as the legitimate state purpose of improving the safety of the workplace- rRelying upon our finding in- Jefferson, the Administrative Law Judge found.that.claimant Reddick-E603208 5 failed to prove that the presumption created by Ark. Code Ann. violates the due process and equal protection clauses of the United States Constitution. Claimant did not appeal this finding. Accordingly, we find that this finding of the Administrative Law Judge should be affirmed. In finding that claimant sustained a compensable injury which is not excluded under Act 796 of 1993, the Administrative Law Judge found that Ark. Code Ann. 11-9- 102(5)(B)(iv)(c) is unconstitutional under the Fourth and Fourteenth Amendments of the United States Constitution and that the drug screen was unreliable. This constitutional issue will be addressed later in this opinion. The drug screen result was introduced into evidence by claimant, not by respondent as stated by the Administrative Law Judge in her opinion. Claimant did not argue that the results were not credible or unreliable. In fact, by introducing the drug screen results into evidence, claimant conceded the authenticity of such results. If claimant questioned the authenticity of the collection of the drug sample or drug screen results, the burden is upon claimant to object to the introduction of such evidence. Obviously, by introducing the results into evidence herself, claimant conceded the reliability and authenticity issues. We are not persuaded, 'as the Administrative Law Judge was, that the test-results Reddick-E603208 6 were not credible. First, as previously mentioned, no one raised the credibility issue. If both parties agree to the admissibility and do not question the authenticity of evidence, it is not our position and it should not be the position of an Administrative Law Judge to find some reason to discredit it on these grounds. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that the drug screen results were not reliable. The evidence reveals that claimant was operating a machine with which she was very familiar. Claimant had been advised in the past not to place any part of her body inside the machine while it was operating. Despite these warnings, claimant purposefully placed her left hand inside the machine while it was running, to adjust a coolant hose. It is claimant?s testimony that she was following standard procedures when she placed her hand inside the machine to adjust the hose. However, we find it highly unlikely that claimant was ever advised that it was customary, standard procedure to place her hand into a running machine-to adjust the hose.. Everett Dunnley, general foreman for respondent, testified that all employees were advised never to place their hands into a machine while it was running. As explained by Mr. Dunnley, if the hose needs to be adjusted, such adjustments should be made when the machine is turned off. After assessing the weight to be accorded the Ami Reddick?E603208 7 conflicting testimony of claimant and Mr. Dunnley, we find that the greater weight of the evidence does not support a conclusion that claimant was following standard procedures when she-reached into the machine while it was running. Logic dictates otherwise. In our opinion, claimant?s actions were a sheer disregard for her personal safety which strongly suggests impairment resulting from drug use. We further note that claimant offered no independent evidence to the effect that she was not impaired at the time the accident occurred. The only evidence regarding the state of claimant's impairment comes from claimant herself and the drug screen results. A claimant?s testimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 457 (1994). The only evidence to rebut the drug screen results introduced into evidence by claimant regarding her state of impairment at the time of the injury was claimant?s testimony that she had not smoked marijuana for a year prior to the accident and that the marijuana detected in her system was from second-hand smoke. However, claimant offered no medical evidence that the level of marijuana metabolites detected in her system could be the result of second-hand smoke. Moreover, the second?hand smoke in the environment in which claimant lived has existed for a long Reddick?E603208 8 period of time. It is claimant?s testimony that her boyfriend smoked marijuana continuously around her causing her to inhale the second?hand smoke. In our opinion, this argument is flawed by the fact that while living in this environment and allegedly inhaling second-hand smoke the claimant took a drug test prior to her employment with respondent and passed. If the post-accident drug screen results are a result of second?hand smoke, one would expect the pre?employment drug screen results to likewise detect marijuana metabolites since her environment has not changed. (Claimant began her employment with respondent in the fall of 1995, which, if claimant?s testimony were to be believed, is after she last smoked marijuana). Consequently, we find that claimant?s testimony regarding her use of marijuana lacks credibility. Accordingly, we find that claimant has failed to present sufficient credible evidence to rebut the presumption created by Ark. Code Ann. 11-9? Therefore, we find that the was substantially occasioned by the use of illegal drugs. Claimant has offered no additional evidence or witnesses to corroborate her testimony regarding the state of her impairment. Nor has she offered any expert testimony to discredit the test results. We find claimant's testimony regarding her marijuana use lacks credibility. Therefore, Reddick-E603208 9 we find that claimant has failed to prove by a preponderance of the evidence that her injury was not substantially occasioned by the use of drugs, and we reverse the decision i of the Administrative Law Judge accordingly. Finally, we find that claimant has failed to raise the constitutionality of the implied consent provision of Ark. Code Ann. therefore, we find that this portion of the Administrative Law Judge?s decision should be vacated. It is the responsibility of the parties to raise constitutional arguments in a timely manner. This was not done by claimant in this case. Thus, respondent was not afforded the opportunity to defend against the constitutional cl;im raised by the Administrative Law Judge at the hearing. (We are not persuaded to find that the constitutional challenge raised by claimant?s attorney at the close of her case is sufficient to invoke a Fourth Amendment challenge against unreasonable searches and seizures. Plainly, claimant?s attorney qualified her constitutional challenge only to claimant?s ?constitutional rights of due process and equal protegtion.?) However, even if we were to find that claimant properly raised a constitutional challenge to the implied consent provision, a finding that we do not make, we find that claimant has failed to prove that the implied consent provision of the drug section violates the Fourth Amendment Reddick~E603208 10 of the United States Constitution. This amendment provides: The right of the people to be secure in their persons, houses, papers and affects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched, and the person or things to be seized. Thus, in order for the implied consent provision to be found unconstitutional it must be found that the urine sample taken from the Foley catheter was a non?consensual, suspicionless search performed at the instance of ?state action." Nurse Sherry Ann Oldner testified by way of deposition that claimant consented to the drug test. As explained by Ms. Oldner claimant was unable to sign the consent form due to trauma and injury sustained and this is reflected on the form attached to the urine specimen. However, claimant did give her verbal consent to the test according to Ms. Oldner. Ms. Oldner specifically testified: the best that I can remember, she did, because it was very important for Binkley to have that specimen, and we knew that she was unable to Sign, and I did advise her that I was going to be .getting that for testing purposes. When asked if claimant was coherent at the time Ms. Oldner discussed the taking of the urine sample, Nurse Oldner stated, "Yes, ma'am, she answered appropriately to all my questions.? Thus, despite claimant?s testimony that she did not consent to the drug testing procedure, Nurse ReddiCk-E603208 11 Oldner?s testimony proves otherwise. Even assuming, arguendo, that claimant did not consent to the ?search?, we cannot find that claimant?s actions were suspicionless. In the present case, claimant?s actions of placing her hand inside an operating machine cannot be said to be an activity that is suspicionless or normal. In analyzing the constitutionality of this provision, we must approach it in favor of constitutionality: There is a presumption of constitutionality attendant to every legislative enactment and all doubts concerning it must be resolved in favor of constitutionality. The party challenging a statute has the burden of proving it unconstitutional. - Lambert v. Baldor Electric, 44 Ark. App. 117, 868 513 (1993); Holland v. Willis, 293 Ark. 518, 793 529 (1987). Thus, the implied consent section must be found constitutional if it is possible to do so. This provision is similar to Ark. Code Ann. 5-65~202, an implied consent provision regarding the testing of motor vehicle drivers for alcohol. [This implied consent provision has withstood constitutional challenges. See Mercer v. State, 256 Ark. 814, 510 539 (1974). In rejecting an argument that the drawing of blood against the driver's consent amounted to an unconstitutional search, our Supreme Court stated: To suppress this evidence, appellant makes two Reddick-E603208 12 contentions. The first is that it amounts to an unlawful search and seizure. Our legislature recognizes that one who drives an automobile on the highways of this state gives an implied consent to the taking of such tests, Ark. Stat. Ann. 75?1045. A number of other states have similar laws. The validity of such laws was upheld in Schmerber v. California, 384 U.S. 757, 86 Sup. Ct. 1826, 16 Law Ed. 2nd 908 (1966). Consequently, we find no merit in the contention. We find that the implied consent provision of Ark. Code Ann. ll~9-102 is substantially similar to the implied consent provision of Ark. Code Ann. 35?65-202 and therefore constitutional under the holding in Mercer v. State, supra. The Administrative Law Judge relied upon a United States Supreme Court decision, Skinner v. Railwav Labor Executives Assoc., 489 U.S. 602, (1989) to find our implied consent provision unconstitutional. However, as amply noted by respondent, this case actually rests in favor of finding the implied consent provision constitutional. Skinner teaches us that the Fourth Amendment does not proscribe all searches, only those that are unreasonable, and the- reasonableness of the search depends on the totality of the circumstances surrounding the search. The Court in Skinner stated: Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. The Court in Skinner held: Reddick-E603208 13 In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. Important governmental interests have previously been identified by this Commission in Jefferson v. Muncey Products, supra. See also, Ester, supra. There is a legitimate state purpose in providing a safe workplace, as well as protecting employees (and their fellow employees) and ensuring the payment only of claims that are legitimate and causally related to employment. In our opinion, when these interests are weighed against the minimal privacy interests of taking a urine specimen from a catheter bag, we cannot find that the evidence in this case shows the implied consent provision to be unconstitutional. The holdings in Skinner, Mercer, and Schmerber in our opinion, support the constitutionality of the implied consent provision. Since we find that the claimant failed to demonstrate that the implied consent provision violates the Fourth and Fourteenth Amendments of the United States Constitution, and as we find that the governmental interests outweigh the minimal intrusion, we find it unnecessary to address whether there was state action in this case. Arguably, there was no state action since all parties involved in the drug testing procedure were individual ReddiCk-E603208 14 private parties. The Fourth Amendment does not apply to private, individual actions. Accordingly, for those reasons stated herein, we~ find that the decision of the Administrative Law Judge must be and hereby is affirmed in part, reversed in part and vacated in part. IT IS SO ORDERED. #24 /r MIKE WILSON, CommiSSioner Chairman Coffman concurs. CONCURRING OPINION I concur in each of the findings of the principal opinion. I write separately only to express my thoughts on various aspects of the constitutional and statutory issues raised at various stages in this case. In my opinion, by failing to object to the introduction into evidence of the drug testing results now at issue in this case (and in fact offering those-test results into evidence herself), the claimant waived any right that she might otherwise have had to raise the issues of (1) whether the test procedure used was ?reasonable and responsible? as a matter of statutory construction (see the concurring and dissenting opinion), and (2) whether the urine specimen collection procedure obtained under the Reddick-E603208 15 authority of the ?implied consent? provision impinged on her Fourth Amendment protection from unreasonable search and seizure (See Commissioner Wilson?s opinion and order). In addition, I concur in the findings of both the principal opinion and the concurring and dissenting opinion that the administrative law judge also improperly raised the Fourth Amendment issue sua sponte after the hearing in this case. To the extent that the dissent asserts that the sequence of events involved in collecting a urine specimen in this case did not qualify as ?reasonable and responsible? testing, I note that the Courts have not yet specifically defined any parameters on that term which would appear to be controlling in this case. As I interpret the dissent?s argument, the dissent is asserting that the urine specimen collected in this case was not collected in a ?reasonable and responsible? manner when the urine sample was collected from a catheter bag at a time when the claimant was allegedly not capable of giving informed consent to a urine sample being withdrawn from a catheter bag. To the.extent that the dissent seems to assert that the General Assembly intended that ?reasonable and responsible" testing requires informed consent on the part of the patient, I simply note that the same sentence of Act 796 which provides for ?reasonable and responsible? testing also provides for ?implied consent?: Reddick?E603208 16 Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee?s body. [Emphasis added]. Ark. Code Ann. (Supp. 1997). I believe that the General Assembly specifically envisioned a situation in drafting this provision where an injured employee would not be medically capable of providing ?informed consent?, and intended to make it clear that medical and law enforcement personnel could proceed with sample collection and testing without waiting to first obtain ?informed consent" from the injured employee. Compare, Mercer v. State, 256 Ark. 814, 510 539 (1974). with regard to the issue of whether urine specimen collection from a catheter bag is ?reasonable and responsible testing? in general (as opposed to the dissent?s specific objection regarding when the specimen was collected in this case), I do not perceive any evidence from the record indicating that collecting a urine specimen from a catheter bag is any less reliable or would lead to less accurate analytical results as compared to a urine sample collected in a cup or in a sample bottle. Therefore, for the reasons discussed herein, I conclude that the circumstances and nature of the specimen collection procedures at issue in this case fall within the meaning of Reddick-E603208 ?reasonable and responsible testing? as that term was intended in Ark. Code Ann. (Supp. 1997). To the extent that how the urine specimen in this case was collected might bear on a Fourth Amendment analysis, I perceive that collecting a urine specimen from a catheter bag is the least intrusive means possible for collecting a urine specimen for a patient who is medically incapacitated from providing informed consent. However, since I concur in the principal opinion's conclusion that the greater weight of the credible evidence in this case indicates that the claimant did in fact provide verbal consent to Ms. Oldner, I believe that this is yet another ground for finding that the Fourth Amendment issue in this case was not properly raised and preserved. g. Commissioner Humphrey concurs in part and dissents in part. CON NG AND DI SENTING OPINION I have long felt that Ark. Code Ann. ?11-9- 102(5)(B)(iv)(Supp. 1997) is far more capable of producing Reddick-E603208 18 harsh results than of accomplishing its apparent goal of reducing drug and alcohol usage in the workplace. After all, the statute offers no distinction between those who actually are intoxicated at work and those who may have been at a remote point in time but still retain some ethereal ?metabolite? or ?break-down? product in their system. It has always seemed to me that metabolic traces, if anything, are an indication that a substance has been processed by the body and reduced to a waste product far removed from its impairment~causing phase. Nevertheless, such traces are now a well?established means of raising the presumption of Ark. Code Ann. (B) (iv) (Supp. 1997), that an accident was ?substantially occasioned? by some kind of intoxicant. But despite my concerns with the statute as a whole, I feel compelled to concur with the majority's findings regarding its constitutionality in this claim. To begin with, prior case law makes it relatively clear that subsection does not violate the equal- protection or due process clauses of the United States Constitution. See Andre Jefferson v. Continental Loss Adjusting, Full Workers? Compensation Commission, Opinion Filed April 11, 1997 (Claim No. E405575) and Ester v. Nat?l HOme Centers, Inc., 61 Ark. App. - (1998). Reddick-E603208 19 Also, I cannot discern from my review of the record that claimant ever specifically raised any constitutional issues relating to search and seizure, and it appears that she only raised her due process and equal protection challenges at the close of her evidence. In my opinion, fairness requires that issues not be determined sua sponte by an Administrative Law Judge unless the parties have had an adequate opportunity to litigate or otherwise address those particular issues. Accordingly, I must concur with the majority?s decision to vacate the Administrative Law Judge?s finding that subsection(5)(B)(iv)(c) is unconstitutional. However, I would find that the drug testing administered to claimant was patently unreasonable within the meaning of subsection itself. Specifically, the statute provides that: every employee is deemed by his performance of services to have impliedly consented to reasonable and .responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee?s bodyi According to Ms. Sherry Ann Oldner, Chief Nursing Officer for Delta Memorial Hospital in Dumas, claimant arrived in the emergency room at 8:50 and shortly Reddick-E603208 20 afterward received implementation of a Foley catheter. At 9:30 hospital personnel obtained a urine specimen from the catheter bag and then a blood sample at 9:45 a.m. However, Nurse Oldner acknowledged that claimant had been unable to sign a consent form due to the trauma she had sustained: ?That?s correct. She was in a terrific amount of pain, and her arm was so malformed that there is no way that she could sign." While Nurse Oldner recalled that claimant was coherent, had been informed that samples would be drawn, and had given consent, it is important to note that Nurse Oldner qualified most of these recollections with phrases such as ?to the best of my knowledge,? and ?the best that I can remember.? Even more significant is the fact that claimant had received substantial medication by the time hospital personnel took the samples in question: Q. Was she prescribed any medication at the time that she presented to the hospital at 8:50 on March 1? of 1996? A. Yes. She had had some Demerol for .pain. She received a hundred (100) of Demerol at 9:05 and Versed 2 milligrams at 9:20, so she had had had some sedation. Even though subsection contemplates implied consent, we have clearly observed on prior occasions that a claimant can essentially refuse consent altogether - albeit with the significant consequence of raising.the wsc. .- Reddick-E603208 21 presumption of subsection See, generally, Rebecca Davis V. Your Employment Service, Full Workers' Compensation Commission, Opinion Filed December 5, 1996 (Claim No. E415603). In the instant?case, claimant may have never even had that chance, as she had been under the influence of substantial pre-operative sedation for nearly one-half hour before the first samples were taken. Furthermore, even Nurse Oldner described claimant?s pain as ?terrific,? which one suspects would be less than conducive to informed decision-making. Simply put, the extraction of blood and urine specimens under these circumstances has an ominous appearance, especially in light of the primacy it appears to have received during the course of Claimant?s initial care: Yes, ma'am. The best that I can remember, she did, because it was very important for Binkley to have that specimen, and we knew that she was unable to sign, and I did advise her - that I was going to be getting that for testing purposes. (From Nurse Oldner's .testimony; emphasis added.) In claimant?s altered condition, she might very well have assented to anything that hospital personnel proposed. I simply cannot conclude that such testing is either reasonable or responsible, and would find that the drug tests in question should accordingly be excluded from . Reddick-E603208 22 evidence. Also, given the remaining facts in this case, would find that claimant clearly sustained a compensable injury within the meaning of Ark. Code Ann. ?11?9- 102(5)(A)(i) (Supp. 1997), and must respectfully dissent from the majority?s finding to the contrary. As set out above, I concur in part and respectfully dissent in part from the majority opinion. PAT WEST HUMPHREY, Commissioner I