cq 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (DEPOSITION OF TODD BERESFORD) 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY CHRISTOPHER J. GODFREY, ) ) Plaintiff, ) Law No. LACL124195 ) vs. ) ) STATE OF IOWA; TERRY ) BRANSTAD, Governor of ) DEPOSITION OF the State of Iowa, ) TODD BERESFORD individually and in his ) official capacity; ) KIMBERLY REYNOLDS, ) Lieutenant Governor of ) the State of Iowa, ) individually and in her ) official capacity; ) JEFFREY BOEYINK, Chief ) of Staff to the ) Governor of the State ) of Iowa, individually ) and in his official ) capacity; BRENNA ) FINDLEY, Legal Counsel ) to the Governor of the ) State of Iowa, ) individually and in her ) official capacity; ) TIMOTHY ALBRECHT, ) Communications Director ) to the Governor of the ) State of Iowa, ) individually and in his ) official capacity; and ) TERESA WAHLERT, ) Director, Iowa ) Workforce Development, ) individually and in her ) official capacity, ) ) Defendants. ) ------------------------) THE DEPOSITION OF TODD BERESFORD, taken before Chris A. Quinlin, Registered Professional Reporter and Notary Public of the State of Iowa, commencing at 9:50 a.m., May 1, 2015, at 4280 Sergeant Road, Suite 290, Sioux City, Iowa. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 2 A P P E A R A N C E S Plaintiff by: ROXANNE BARTON CONLIN Attorney at Law ROXANNE CONLIN & ASSOCIATES 319 Seventh Street Suite 600 Des Moines, IA 50309 (515) 283-1111 Defendants by: ANDREW H. DOANE Attorney at Law LaMARCA LAW GROUP 1820 NW 118th Street Suite 200 Des Moines, IA 50325 (515) 225-2600 The Deponent by: TIMOTHY A. CLAUSEN Attorney at Law KLASS LAW FIRM, LLP 4280 Sergeant Road Suite 290 Sioux City, IA 51106 (712) 252-1866 Also present: CHRISTOPHER J. GODFREY BILL BURK (via phone) 3 4 5 6 7 8 9 10 11 12 13 14 2 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 I N D E X 2 Examination by: Page 3 Ms. Conlin 5, 135 4 Mr. Clausen 134 6 Exhibit Marked 7 171 16 8 172 49 9 173 51 10 174 53 11 175 54 12 176 54 13 177 56 14 178 141 15 179 148 16 180 148 17 181 148 18 182 155 19 183 157 20 184 157 21 185 158 22 186 158 23 187 163 24 188 164 25 189 (skipped exhibit) 5 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 3 cq 1 (DEPOSITION OF TODD BERESFORD) I N D E X - Continued 2 Exhibit Marked 3 190 166 4 191 183 5 192 187 6 193 188 7 194 190 8 195 190 9 196 190 10 197 191 11 198 200 12 199 200 13 200 201 14 201 201 15 202 202 16 203 206 17 204 207 18 205 208 19 206 215 20 207 216 21 208 216 22 209 216 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 4 cq (DEPOSITION OF TODD BERESFORD) 1 TODD BERESFORD, 2 called as a witness, having been first duly 3 sworn, testified as follows: 4 5 6 7 DIRECT EXAMINATION BY MS. CONLIN: Q. Would you state your name for the record, please? 8 A. Todd Beresford. 9 Q. Mr. Beresford, where do you live? 10 A. 11 Q. Where is that? 12 A. About 10 miles north of Sioux City, 13 South Dakota. just in the southeast corner of the state. 14 Q. What is your occupation? 15 A. I am the senior manager of workers' 16 17 18 19 5 compensation presently at Tyson Foods. Q. Why don't you give me your work history. A. After I graduated from law school in 20 '99, 1999, I clerked for a year in Sioux Falls 21 for the second judicial circuit. 22 year of clerkship, I started at IBP in June of 23 2000 as a litigation attorney, handling 24 primarily Iowa workers' compensation claims. 25 was in that role for about five years. Following my HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq 6 (DEPOSITION OF TODD BERESFORD) 1 And around 2006 I took over as 2 the manager of the fresh meats work comp 3 department. 4 5 MS. CONLIN: record a minute. 6 (An off-the-record discussion 7 8 9 10 Let's go off the was held.) Q. Are there any factors which would make it difficult for you to focus today and provide answers? 11 A. No. 12 Q. Are you on any kind of medication that 13 interferes with your ability to think and 14 remember? 15 A. No. 16 Q. We were going to talk about your work 17 history. You said you started at Tysons in the 18 year 2000 as a litigation counsel. 19 IBP at that point? Was it still 20 A. Yes, it was IBP at the time. 21 Q. And when you started, Chris was already 22 there; correct? 23 A. He had already left. 24 Q. Oh, he had? 25 A. Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 7 (DEPOSITION OF TODD BERESFORD) Q. And tell me, the litigation job that you had, was that mostly workers' comp? 3 A. Exclusively workers' compensation. 4 Q. Who else was in the department at that 5 6 7 time? A. At that time it was myself and James Meehan. 8 Q. James -- 9 A. Meehan. 10 Q. Meehan. Anyone else? 11 12 13 14 15 A. We had a secretary at the time. I don't recall who the secretary was at the time. Q. How long did you serve as litigation counsel? 16 A. For roughly five years. 17 Q. What did you do after that? 18 A. I took over as the manager of the work 19 comp department for the fresh meat side, which 20 is primarily the old IBP, the beef and pork 21 segment of the business. 22 23 Q. As the manager of that division -- That's your current job; correct? 24 A. That's correct. 25 Q. What do you generally do? Describe HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) your duties generally. A. Tyson is self-insured and 3 self-administered, so I oversee our claims 4 adjusters internally, as well as the support 5 staff, and also manage our outside counsel 6 handling our litigated workers' compensation 7 claims. 8 9 8 Q. Do you still have a litigation division within Tysons? 10 A. Yes, we do. 11 Q. And it still does workers' comp? 12 A. We have got two attorneys in-house who 13 do handle some of our work comp. 14 things, but they handle some of the in-house 15 Iowa claims. 16 17 Q. They do other In your current capacity do you supervise other attorneys? 18 A. Outside attorneys or inside? 19 Q. Inside. 20 A. I do not directly supervise them. 21 Q. How many people report to you? 22 A. Currently 17, I believe. 23 Q. Are they all in the headquarters 24 25 office? A. Yes, they are. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 (DEPOSITION OF TODD BERESFORD) Q. 9 You took your Tysons job right after you got out of law school? A. No. I clerked for one year prior to starting at IBP. 5 Q. And so you've been there ever since? 6 A. Yes, I have. 7 Q. Where did you go to school? 8 A. I completed my undergraduate at the 9 10 11 12 University of Northern Iowa and law school at the University of South Dakota. Q. Were you born in Iowa or South Dakota or some foreign place? 13 A. I was born in Iowa. 14 Q. Over the last ten years or so, what 15 organizations do you belong to? 16 things like rotary or my particular interest is 17 an organization like Values Voter or Family 18 Leader or one of those. 19 20 A. Business ones? I'm asking for Are you talking personal? 21 Q. Personal. 22 A. Well, I can't think of any right off 23 the top of my head. 24 so I'm usually busy at all their activities. 25 Q. I've got four young kids, We were talking about that earlier. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) A. Yes. 10 That consumes -- I'm kind of a 2 taxi driver right now, so that consumes most of 3 our time. 4 Q. I know. 5 I feel like a chauffeur. So no organizations that have as 6 a part of their goal the prevention of equal 7 rights for people who are members of the LGBT 8 community? 9 A. No. 10 Q. Are you a registered lobbyist in any 11 state? 12 A. No. 13 Q. Have you ever been? 14 A. No. 15 Q. Does Tyson have its own PAC? 16 A. I believe they do. 17 Q. Do you have any relationship with it? 18 A. No, I don't. 19 Q. Do you know anything about it? 20 A. Nope. 21 Q. Does Tyson also have or make No, I am not. 22 contributions to any 501(c)(4) organizations, 23 charitable organizations that make political 24 contributions? 25 A. I assume they do, but I have no -- it's HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 (DEPOSITION OF TODD BERESFORD) not my area. Q. positions on issues of interest to it? Maybe I can ask a better question. 6 7 8 9 I have no direct knowledge. Does Tysons, to your knowledge, take 4 5 11 Do you have legislative priorities? A. Again, we've got a department that is dedicated to that. We've got a government 10 affairs department, and that would be more their 11 area. 12 13 Q. So I assume yes, they do take positions. Do you interact with the governmental affairs unit? 14 A. On occasion. 15 Q. Do you make suggestions to them or 16 provide advice and assistance to them with 17 respect to workers' compensation? 18 A. On occasion, yes. 19 Q. Are there instances in which you, 20 yourself, speak on behalf of Tysons? 21 A. Do you want to clarify the question? 22 Q. Yes. 23 If you're not a lobbyist, perhaps 24 you're not down in Des Moines. 25 been to the Iowa legislature? Have you ever HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 12 (DEPOSITION OF TODD BERESFORD) 1 A. Yes, I have. 2 Q. And when you go there, what do you do? 3 A. I've been there with a group before, 4 different organizations one or two times. 5 been there just for general meetings. 6 I've met with some legislators on certain 7 occasions to talk general issues with them. I've I think 8 Q. How often would that happen? 9 A. Over the last ten years, I've probably 10 been to the capitol maybe five times. 11 Q. Over the last ten years? 12 A. Five times total. 13 Q. You mentioned organizations. 14 business organizations? 15 commerce-type groups? Chamber of 16 A. Yes. 17 Q. Did you meet with any lawyers 18 Tell me, representing any defendant in this case? 19 A. What time frame are you talking about? 20 Q. Any time frame. 21 A. I don't believe so, no. 22 Q. Did you talk with them by telephone or 23 communicate with them by e-mail or in some other 24 way? 25 A. I did. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 13 1 Q. Over the phone? 2 A. Phone call, yes. 3 Q. Tell me with whom. 4 A. I believe it was with -- Sorry, I don't 5 know Andy's last name. 6 I just know him by -- MR. DOANE: Doane. 7 A. Doane. 8 Q. When was that? 9 A. Approximately six to eight weeks ago, I 10 think. 11 Q. How long was the conversation? 12 A. Probably five minutes. 13 Q. What was it about? 14 A. He had requested some information for 15 the pending lawsuit. 16 Q. What information did he request? 17 A. Some newsletters from the Iowa 18 Self-Insurers Association. Q. 19 20 Did you provide them to him voluntarily? 21 A. Yes. 22 Q. I sent you a subpoena which you refused 23 to comply with; correct? A. 24 25 No. I didn't receive the subpoena. No. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 2 MS. CONLIN: 14 Did I give it to you? 3 MR. CLAUSEN: No. You had it 4 hand-delivered to a Dakota City, Nebraska plant, 5 that a Tyson production facility in Dakota City, 6 Nebraska received. 7 8 MS. CONLIN: mistake. Did you tell me that? 9 10 MR. CLAUSEN: I did tell you that. 11 12 That must be a MS. CONLIN: I wasn't paying attention to you, apparently. 13 MR. CLAUSEN: 14 I'm married. 15 I'm used to being ignored. 16 MS. CONLIN: I'm used to it. I've been married for 26 years. I apologize. 17 Q. So you did not know about the subpoena? 18 A. I heard about it afterwards, yes. 19 Q. What I asked for, among other things, 20 were e-mails that you exchanged with any member 21 of the governor's staff. 22 e-mails with the governor's staff? 23 24 25 A. Did you exchange any I believe there might have been one or two with Mr. Doane. Q. He's not the governor's staff, believe HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 it or not. 2 A. 3 15 (DEPOSITION OF TODD BERESFORD) He is the governor's attorney. Oh, excuse me. Attorney. With the governor's staff? 4 Q. Yes. 5 A. No. 6 Q. Well, you did communicate with Debi 7 Durham. A. 8 No, I did not. MS. CONLIN: 9 10 Can we take just a little brief break? 11 MR. CLAUSEN: Sure. 12 (An off-the-record discussion was held.) 13 Q. 14 You indicated that you voluntarily 15 provided the self-insurance newsletter to the 16 defendants. 17 telephone call? A. 18 19 What else did you discuss in that I believe that was essentially the essence of the call. Q. Did they provide any information to 22 A. One document, I believe. 23 Q. What was that? 20 21 you? 24 MR. CLAUSEN: The two documents 25 he reviewed we brought to kind of expedite HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 things. 2 3 THE WITNESS: MR. CLAUSEN: MS. CONLIN: Oh, yes, it's definitely marked as an exhibit. 8 9 You can just show it to her, what you -- 6 7 Is this marked as an exhibit or -- 4 5 16 (DEPOSITION OF TODD BERESFORD) THE WITNESS: Okay. Whatever exhibit number that is. 10 MS. CONLIN: 11 MR. CLAUSEN: I recognize it. Just so that you're 12 clear, this is the document that they provided. 13 That was the second document that he reviewed. 14 MS. CONLIN: Okay. 15 about that. 16 been able to find. 17 Can we mark this as an exhibit? I'm clear This is a document that I have not I'm glad that you had it. 18 THE WITNESS: 19 (Exhibit 171 was marked for 20 21 Sure. identification.) Q. Aside from your five-minute call with 22 Mr. Doane, have you had any other contact of any 23 kind with the lawyers for the defendants? 24 25 A. There was a subsequent call. And at that time I referred Mr. Doane to our corporate HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 (DEPOSITION OF TODD BERESFORD) 17 counsel down in Arkansas. Q. You did not have any substantive discussion with him at that time? A. No, I did not. All future 5 correspondence were to go through Mr. Burk down 6 in Springdale. 7 8 9 10 11 Q. How did Mr. Clausen get involved, your current lawyer, this lawyer right here? A. After I was asked to provide my deposition today, Tim got involved. Q. Is this the law firm that represents 12 Tysons in connection with legal matters, the 13 nonworkers' compensation type? 14 A. I don't believe they've handled 15 anything outside of workers' compensation. 16 could be wrong. 17 Q. I So the one contact you had with defense 18 lawyers was a five-minute phone call with 19 Mr. Doane during which you agreed to provide him 20 with the self-insurance persons newsletter. 21 then the next call you referred him to your 22 attorneys down in Arkansas. 23 understanding? 24 25 A. Yes. And Is that a correct Those are my two communications with him. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 Q. Have you reviewed any other documents aside from the two that you have produced? 3 A. No, I have not. 4 Q. Have you looked at any of the 5 18 (DEPOSITION OF TODD BERESFORD) depositions? 6 A. No, I have not. 7 Q. Have you looked at any of the 8 pleadings? 9 A. No, I have not. 10 Q. Are you aware of what the lawsuit is 11 about? 12 A. Generally, yes. 13 Q. How did you develop your awareness? 14 A. Mostly probably the Des Moines 15 16 Register, the news articles. Q. I'm assuming that you know the rules of 17 depositions, but just to be sure, please answer 18 questions orally. 19 question before you begin your answer. 20 ask a question that is not clear to you, ask me 21 for clarification before you answer. 22 don't do that, I will assume that you've 23 understood my question. And if I And if you Is that fair? 24 25 Wait until I finish my A. That is fair. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 Q. 19 (DEPOSITION OF TODD BERESFORD) Mr. -- it's E-I-D-E. He is a lobbyist; is that correct? 3 A. I assume you mean Matt Eide. 4 Q. Yes. 5 A. That's correct. 6 Q. Eide is how it's pronounced? 7 A. That's correct. 8 Q. Does he live in Des Moines or here in 9 Eide? Sioux City? 10 A. I believe he lives in Des Moines. 11 Q. Is he somebody that you know? 12 A. I know him through work, yes. 13 Q. How much contact do you have with him? 14 A. During the legislative session, if 15 something is going on pertaining to workers' 16 compensation, it would be -- he'll ask my input 17 on, you know, how it would impact Tyson or if we 18 generally support, you know, that particular 19 piece of legislation. So this year I don't think there 20 21 was anything. I don't think I had -- I don't 22 believe I had any conversations with him about 23 Iowa legislation this year. 24 was obviously a work comp bill, then I'm going 25 to have more contact with him. Years past if there HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 20 (DEPOSITION OF TODD BERESFORD) So it just depends on the year and what's going on in the statehouse. 3 Q. Do you meet with him? 4 A. I have met with him before. Typically 5 it's going to be, you know, a phone call or via 6 phone or e-mail if I'm going to be discussing 7 with him most of the time. 8 9 10 11 12 Q. When you meet with him, is it here or is it in Des Moines? A. It's typically if I'm in Des Moines. That's the only time I think I've met with him. Q. Can you remember any meetings that 13 you've had with him about any particular pieces 14 of legislation or any particular things that the 15 legislature is charged with doing? 16 A. Again, it's generally. It's usually 17 general. 18 proposed bill, ask my input, and, you know, I'll 19 provide my input to him. 20 Q. You know, he might send me a copy of a I'm going to ask you some questions 21 that are a little different than those that are 22 generally asked during depositions. 23 to ask about your personal belief system on 24 issues involving lesbians and gay people. 25 I'm going Do you support or oppose laws HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 which forbid discrimination on the basis of 2 sexual orientation? A. 3 I am not an advocate either way. 4 don't have an opposition to gay and lesbian 5 marriage. 6 the other. 7 Q. 21 I I'm not actively promoting one way or Are you neutral on the issue of gay 8 marriage? 9 me? Is that what you're trying to tell 10 A. I would say that's a fair assessment. 11 Q. You don't vote for or against 12 candidates on the basis of their position on gay 13 marriage? 14 A. No, I don't. 15 Q. Do you believe that same-sex couples 16 can provide a secure and safe environment for 17 children? 18 A. Generally, yes. I mean, obviously 19 there's situations -- not every person -- there 20 are straight people, I think, who may not always 21 meet that, but yes, I don't have a problem if 22 they're -- if the particular couple is suitable 23 to raise children, I do not have an issue with 24 that. 25 Q. Do you believe that homosexual conduct HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 22 is immoral? 2 A. No, I do not. 3 Q. Are there any health problems that you 4 believe heterosexual people suffer because of 5 homosexual conduct? 6 A. No. 7 Q. Do you believe being gay is a choice? 8 A. I personally don't think it's a choice. 9 10 I think you're probably born that way. Q. Do you believe that someone who says 11 they are gay can become straight through 12 psychiatry or medication or prayer? 13 A. No, I don't. 14 Q. Do you believe that people are born 15 with a sexual preference? 16 A. Yes, I do. 17 Q. Are you a Republican? 18 A. I'm a registered 19 Q. And the Republican platform has a lot 20 of stuff in it, but among the things that it 21 provides is support for an amendment to both the 22 United States and the Iowa Constitutions 23 defining and supporting the honored institution 24 of marriage as the legal union between one 25 natural man and one natural woman. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 23 (DEPOSITION OF TODD BERESFORD) Do you agree or disagree with that part of the Republican platform? A. I would say I personally don't agree with that particular one. 5 Q. Do you know John Gilliland? 6 A. Yes, I do. 7 Q. How do you know him? 8 A. I was involved for several years when 9 10 11 12 he was at the ABI. Tyson going back to IBP also was a member of the ABI. Q. Did you know the workers' compensation commissioner prior to Chris? 13 A. Commissioner Trier? 14 Q. Yes. 15 A. Yes. 16 Q. What was the nature of your 17 18 relationship with Mr. Trier? A. Obviously Tyson is one of the largest 19 employers in the state. 20 than most employers, so we're -- we have 21 frequent claims before the agency. 22 him just generally through workers' compensation 23 presentations and just Tyson's appearances 24 before the agency. 25 Q. We have more claims So I knew Do you regularly attend the workers' HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 24 compensation symposium? 2 A. Yes, I do. 3 Q. And would you see him and deputies and 4 other workers' compensation commissioners at the 5 symposium? 6 A. Typically, yes. 7 Q. In addition to those times, would you 8 attend other educational programs put on by the 9 Workers' Compensation Division? 10 11 A. Generally I attend the fall IAWC seminar as well. 12 Q. "IAWC" is what? 13 A. Iowa Association of Workers' 14 15 16 Compensation Attorneys. Q. Well, did you ever belong to the Iowa Workers' Compensation Advisory Committee? 17 A. Yes, I do. 18 Q. Do you now? 19 A. I just became a member in January of 20 this year. 21 Q. Before that were you a member? 22 A. No, I was not. 23 Q. So your first service will be as of 24 25 January of 2015? A. Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 5 (DEPOSITION OF TODD BERESFORD) Q. 25 Did Tyson have another representative on the Workers' Compensation Advisory Committee? A. Not to my knowledge since I've been here. Q. I want to talk to you about your 6 personal communication, if any, with the 7 governor during the campaign of 2010. 8 A. Okay. 9 Q. Did you have any personal communication 10 11 with Candidate Branstad? A. Yes. There were a couple of occasions. 12 I believe the first -- I don't know the dates. 13 He came to Tyson, to our headquarters in South 14 Dakota during the campaign and had a general 15 question-and-answer session for any Tyson 16 employees in our conference room. 17 18 19 Q. So that would have been in 2010, I'm assuming? A. Either the summer -- I think probably 20 the summer or early fall in 2010, if that's when 21 the campaign was. Yeah. 22 Q. How many people attended? 23 A. I would guess 40 to 50. 24 Q. Management level? 25 Administrative level people? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 A. (DEPOSITION OF TODD BERESFORD) Both, yes. Anybody at our corporate office there was invited to attend. Q. office. In Dakota Dunes it's only the corporate There's no processing plant; correct? 5 A. That's correct. 6 Q. So all the employees there are 7 26 administrative, technical, management employees? 8 A. That's correct. 9 Q. So how long did the meeting last? 10 A. I would say it was 20 to 30 minutes. 11 Q. What kind of questions were asked? 12 A. I believe at that time Candidate 13 Branstad did about a 15- to 20-minute just kind 14 of vision for -- you know, if he was elected, 15 what he would do or what he saw his goals for 16 the state would be. 17 particulars. 18 And that was followed by maybe a five- to 19 ten-minute question and answer. I don't remember Job creation, I think, was one. 20 Q. Did he mention workers' compensation? 21 A. Yes. 22 Q. What did he say? 23 A. He had said that was an issue that he 24 had heard from other employers across the state, 25 that was a concern to employers, and that he HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 27 1 would if he was elected governor, you know, take 2 a strong look at it. 3 4 Q. Did he say he would replace the workers' compensation commissioner? 5 A. No. 6 Q. What else did he say about workers' 7 compensation? 8 A. I believe that was it. 9 Q. Was that before or after the 10 11 12 13 14 15 self-insurers meeting that he attended? A. That would have been before the Self-Insurers Association meeting. Q. Was that the first time that you personally ever met the governor? A. I did not actually meet him that day. 16 I was in attendance but did not specifically 17 meet him. 18 Q. Is that the first time that you had 19 ever been in attendance at an event at which he 20 spoke? 21 A. In the last ten years. I think when I 22 was younger, during one of his earlier terms I 23 was at the capitol for some educational day. 24 I don't recall the details. 25 a long time ago, though. So It would have been HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. (DEPOSITION OF TODD BERESFORD) 28 In your meeting with him at Dakota 2 Dunes do you recall anything else that was 3 discussed? 4 A. No. Like I said, it was kind of a 5 general -- at that time he was a candidate. 6 was more talking about his goals for Iowa, the 7 future for Iowa, what he could do if re-elected. 8 9 Q. He Are there a number of people in Dakota Dunes who vote in Iowa? 10 A. Yes, there's a fair number. 11 Q. When next did you see the governor? 12 A. I believe it was in September, again, 13 14 of -- I think it's 2010 at the ISIA conference. Q. Okay. We're going to talk about that. Do you now or have you ever had 15 16 any personal phone number or e-mail address for 17 the governor or any member of his staff? 18 A. I don't believe so. I think we 19 communicated when we requested -- I believe it 20 was a campaign-type e-mail. I think it was a 21 Governor 2016 or something. I don't recall 22 the -- or '10. 23 24 25 Q. Yeah. Excuse me. I'm kind of surprised about that. The 2010 campaign is one issue, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 29 (DEPOSITION OF TODD BERESFORD) 1 but what about now? What about during his term 2 as governor? 3 personal telephone numbers for the governor or 4 any member of his staff? Have you had any personal e-mail, 5 A. I do not believe so, no. 6 Q. How many plants does Tysons have in 7 8 9 Iowa? A. I think we currently have nine facilities in Tyson -- or excuse me -- in Iowa. 10 Q. And how many across the country? 11 A. I've lost track. We recently had a 12 pretty big acquisition of Hillshire brands. 13 I -- I honestly don't recall how many between 14 the two. And 15 Q. 16 range? 17 A. It's going to be hundreds. 18 Q. I was wondering if it was going to be 19 Well, can you give me some kind of a tens or thousands or hundreds. 20 A. Hundreds, I would say. 21 Q. Some hundreds. How many employees does Tysons 22 23 24 25 All right. have in the state of Iowa? A. I am not sure in the state of Iowa right now what we currently have. I believe we HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 30 (DEPOSITION OF TODD BERESFORD) 1 are the second largest employer behind Deere, 2 but I don't have the actual numbers right now. 3 Q. 10,000? 20,000? 30,000? 4 A. I think it's in that range. I'm going 5 to guess it's probably 20,000, but again, I 6 don't know. 7 8 9 Q. What is the annual cost for Tyson's workers' compensation program? A. Before Hillshire, for the entire 10 company, around 105 million, I think is 11 what's -- 12 Q. Are those costs broken down by state? 13 A. I don't have them. 14 They -- Obviously we could -- I could figure them by state, yes. 15 Q. Is Tysons a public company? 16 A. Yes, it is. 17 Q. You had no contact with Mr. Branstad 18 prior to his meeting with people employed by 19 Tysons in 2010. 20 understanding? 21 capitol when you were a student. Is that a correct Except when you came to the 22 A. Can you repeat it one more time? 23 Q. Yes. 24 25 I think I can. Until 2010, when the governor, who was then a candidate for governor, came to HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 31 1 Dakota Dunes to have a meeting with Tyson 2 employees, you had no contact with the governor, 3 aside from any school-type activities? 4 A. Yes. 5 Q. Now, do you have any responsibilities 6 I believe that's correct. in terms of OSHA? 7 A. No, I do not. 8 Q. Who does? 9 A. That would fall under our safety 10 11 12 13 department. Q. What are the primary drivers of the costs of doing business in Iowa? A. I guess I'm not qualified to answer 14 that. 15 don't deal with the other costs outside of 16 workers' compensation. 17 18 19 20 21 Q. My area is workers' compensation, so I Can you tell me how much it costs Tysons for workers' compensation in Iowa? A. I don't have -- No. I don't have the cost right now. Q. Would you agree with me that the 22 primary cost of doing business is labor for 23 Tysons? 24 A. It's a significant cost, yes. 25 Q. When did you first meet Chris Godfrey? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 A. June of 2000, I believe. 2 Q. And what was the nature of that 3 4 5 6 7 8 9 32 interaction? A. I started at IBP. I actually replaced Chris at IBP at that time. Q. And was he still there, or did he train you, or what was the -A. He was not there. He was -- He had already moved on to a law firm I think a month 10 or two before I actually started, but I did 11 train with him. 12 IBP cases at the time, and I kind of shadowed 13 him and worked with him on several of the files 14 for a number of months. 15 Q. He took a number of what were How long did that interaction last, 16 where you would follow him or work with him on 17 IBP cases? 18 A. I mean, primarily probably three to 19 four months. I think he held on to some cases 20 for maybe six months or so, if I recall. 21 Q. What law firm was he with? 22 A. Pingel and -- 23 Q. Templer? 24 A. Templer, I think. 25 Q. In Des Moines? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 A. Yeah. 2 Q. Yes. 3 West Des Moines, I believe. That's correct. It was West Des Moines. 4 5 33 At what point did you become aware that he was gay? 6 A. I believe shortly after I started. 7 Q. And how did you become aware that he 8 9 was gay? A. I started in June. He had us out for 10 dinner, I think, at -- we were down for the 11 symposium, and we went out for -- he had us over 12 for dinner that night. 13 another claims adjuster at the time. Myself and I think 14 Q. At his house? 15 A. Yes. 16 Q. And his partner was there? 17 A. Yes. 18 Q. You were introduced to his partner? 19 A. Yes. 20 Q. You were aware his partner was in the 21 military? 22 A. Yes. 23 Q. So at the time that Chris was first 24 nominated to be a workers' compensation 25 commissioner, you had had about six years or so HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 of contact off and on with him. 2 correct understanding? A. 3 4 I would have known him for, yeah, Q. Were you aware of his views on various issues at the time of his nomination? 7 A. Which views? 8 Q. Workers' comp views. 9 10 Is that a approximately six years. 5 6 34 Be more specific. What his views were on workers' compensation and the issues in workers' compensation. 11 A. Yes. 12 Q. What can you tell me about his view on 13 employer choice, if anything? A. 14 15 was. I don't really know what his position We didn't talk about it. 16 Q. What did you talk about? 17 A. Well, obviously early on it was more 18 job training, shadowing. You know, those first 19 few months I saw him a lot more. 20 him at the symposium, different events. I would see We talked generally more family 21 22 stuff or general chitchat, not particular issues 23 usually on -- you know, views on work comp, 24 anyway. 25 Q. Just while I'm thinking of it, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 35 1 Mr. Beresford, were you offered the job of 2 workers' compensation commissioner yourself at 3 any time? 4 A. No, I was not. 5 Q. Did you have any discussions with any 6 member of the governor's staff? 7 A. Yes, I did. 8 Q. Tell me about that. 9 A. I met with -- I believe it's the chief 10 of staff is the only person I met with. 11 Q. Jeff Boeyink? 12 A. Jeff Boeyink. 13 As well as -- I think there was a staff attorney. 14 Q. Brenna Findley? 15 A. No. 16 Q. Larry Johnson? 17 A. Larry Johnson. 18 Q. And when were those meetings? 19 A. It was just one meeting. 20 Q. Oh, but the two of them were together 21 It was a gentleman. in one meeting? 22 A. Yes. 23 Q. Did you go to Des Moines for that 24 25 meeting? A. Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 36 (DEPOSITION OF TODD BERESFORD) 1 Q. Was that during the transition? 2 A. I don't recall the date. It was 3 probably -- I'm guessing it was September. 4 was sometime in the fall. It 5 Q. Of 2010? 6 A. Twenty -- No. 7 Q. After Chris had left? 8 A. Yeah. 9 Q. It would be 2014. 10 A. Or '14. 11 Q. Tell me about what you discussed at the 12 13 2015. I'm sorry. Excuse me. September of 2014. Yeah. meeting. A. It was more visions for the agency, 14 things that, you know, we thought could be 15 changed or I thought could be changed, ideas, 16 things like that. 17 Q. Well, tell me about those. 18 A. It was more in general terms. You 19 know, I guess particular issues with -- with 20 some of the things that particular deputies were 21 doing we talked about. 22 23 24 25 Q. Well, what particular deputies, and what were they doing? A. Some of the issues that, you know, our people face as well as others I've heard HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 37 (DEPOSITION OF TODD BERESFORD) 1 throughout the state. 2 ex parte communications that particular deputies 3 have, trying to force people into settlements at 4 times and -- 5 6 7 Q. You know, some of the Are you talking about , that situation? A. That is one deputy that that has come 8 up numerous times over the years. 9 Tyson, but again, a lot of other members of 10 Not only different associations that we've heard from. 11 Q. Well, tell me about that. 12 A. Which instance? 13 Q. Well, let's first talk about everything 14 that you can remember about your contact with 15 Mr. Boeyink and Mr. Johnson in September of 2014 16 about the job of workers' compensation 17 commissioner. 18 A. It was probably a half-hour, 45-minute 19 meeting. They talked about the position a 20 little bit. 21 Q. You knew about the position? 22 A. Yes. And again, that's the general -- 23 the general premise was, you know, different 24 things that could be improved in the agency. 25 Q. Did you suggest that you would fire HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 38 ? 2 A. Did I -- No, I did not. 3 Q. Did you suggest that you would fire 4 some deputies? 5 A. I don't think firing ever came up. 6 Q. Discharge? 7 Terminate? I'm not married to the word. 8 A. No. 9 Q. You criticized particularly by name? 10 11 A. I don't recall if his specific name 12 came up. It might have been in terms of just 13 general deputies. I don't recall. 14 Q. Was salary mentioned? 15 A. Yes, I believe it was. 16 Q. Was it explained to you that you would 17 have to -- Well, what was explained to you about 18 the salary considerations? 19 A. I believe they said it would be at the 20 low level, 75,000, I think, or somewhere around 21 there, and then looked at four or six months 22 later, I believe. 23 Q. When the case was over? 24 A. I have no idea. 25 Q. There was no mention of the lawsuit in I don't -- HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 39 your -- 2 A. No, there was not. 3 MR. DOANE: Is the lawsuit going 4 to be over four to six months after September 5 2014? 6 7 8 9 10 MS. CONLIN: so. No, I don't think I don't think so. Q. Anything else you can remember about your meeting with Mr. Boeyink and Mr. Johnson in September of 2014? 11 A. No. 12 Q. Do you know who else was interviewed at 13 that time? 14 A. I do not. 15 Q. Did you hear anything further from 16 them? 17 A. No, I did not. 18 Q. You didn't make an application for the 19 job, I take it, or did you? 20 A. Yes. 21 Q. Oh, was there an application process or 22 were particular people reached out to or did you 23 reach out to them? 24 25 A. Yeah. There was an application you had to fill out. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 40 1 Q. And how did you get the application? 2 A. I believe it was downloaded from the 3 state site, I believe, or completed on the state 4 site. 5 Q. Was it a DAS -- 6 A. I think so, yes. 7 Q. -- BrassRing kind of a thing? 8 A. I don't recall the specifics. 9 Q. And you knew the job was open how? 10 A. Just -- I'm in the work comp world. 11 12 was public knowledge, I guess. Q. And how did you know to go to fill out 13 an application, where to go to fill out an 14 application? 15 A. I don't recall. Somebody just told me 16 where it was at, that it was on a particular 17 site. 18 time. 19 20 21 22 23 24 25 It Q. I don't even recall who it was at the And you filled out the application, you sent it in, and then what happened? A. I just had a follow-up call to meet Mr. Boeyink. Q. You had a call to come to Des Moines and meet with Mr. Boeyink. A. Then what happened? There was just that one meeting, and HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) that's all there was. Q. When they told you that the salary 3 would be in the 70,000 area, did you make a 4 salary demand or a salary request? 5 A. I did not. 6 Q. Did you express any concern about 7 8 9 10 41 making $75,000 a year? A. I believe I said, yeah, I probably wouldn't consider the job at that time. Q. Was the salary the reason why you did 11 not consider the job, why you were not further 12 considered for the job? 13 A. No. 14 Q. Well, tell me what happened in terms of 15 your consideration of the job and their 16 consideration of you. 17 A. I wasn't, you know, really I guess 18 committed to the job or to going through with 19 that job. 20 Primarily I would say my reason is my family, 21 because we just -- I've got four young kids, a 22 daughter who is in seventh grade now, and I'm 23 not at that stage where I'm probably going to 24 relocate for too many things given my family 25 life. You know, I said I would explore it. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 42 (DEPOSITION OF TODD BERESFORD) I thought I heard you say when they 2 told you that the salary would be about $75,000 3 that you would not be willing to take the job at 4 that point. 5 A. Am I misunderstanding that? Well, that's another reason, yes. I 6 would say that's a reason, but my primary reason 7 was, you know, my family life, my situation 8 here. 9 10 11 12 13 14 Q. It would be pretty hard to support four little children on 75,000; right? A. Yeah, people do. People do. And it obviously requires some sacrifices and some changes. Q. In your meeting with Mr. Boeyink and Mr. Johnson was Chris Godfrey mentioned? 15 A. I don't believe so. 16 Q. What is your understanding of the role 17 of the workers' compensation commissioner in 18 terms of his or her supervision and interaction 19 with deputy workers' compensation commissioners? 20 21 A. My view or my belief? Is that right? I think the commissioner is 22 the -- obviously as the head of the agency is 23 ultimately responsible for the deputies and 24 overseeing the agency and the direction of the 25 agency and everybody who falls underneath -- all HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 43 1 the deputy commissioners that fall -- excuse 2 me -- are underneath him. 3 Q. Him or her. Do you believe that the workers' 4 compensation commissioner can tell a deputy how 5 to decide a case? 6 A. I wouldn't say a particular case, no. 7 Q. Do you believe that a workers' 8 compensation commissioner can fire or discipline 9 a deputy for how he or she decides a case? 10 A. That's rather open-ended. 11 Q. No, it's not. 12 A. If a deputy commissioner had put 13 something in there that had nothing to do with 14 the law, the facts of the case, did something on 15 a personal level, yeah, I think that's a 16 different situation. 17 open-ended question. 18 Q. So I do think it's an Let me make it more closed end. 19 Do you think that a workers' 20 compensation commissioner can discipline or 21 discharge a deputy because he disagrees or she 22 disagrees with the way that a deputy decided a 23 case? 24 A. Generally, no. 25 Q. Do you think that the workers' HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 44 (DEPOSITION OF TODD BERESFORD) 1 compensation commissioner can interfere with a 2 deputy's decision-making process in a particular 3 case? 4 A. Generally, no. 5 Q. Was there ever a time when you were 6 unaware that Larry Walshire had decided the 7 Rizvic case? 8 A. That I was unaware? 9 Q. Yes. 10 That you were unaware. That you thought Chris had decided the case. 11 A. I don't believe so. 12 Q. I think I'd better ask a better 13 question, because I'm not sure I understood 14 that. MR. CLAUSEN: 15 16 I think you need to clarify. MS. CONLIN: 17 18 19 And at what level? At any level. me do it again. Q. Were you always aware that it was 20 Deputy Walshire acting as commissioner who 21 decided the appeal in the Rizvic case? 22 Let A. The initial appeal from the agency -- 23 from the arbitration decision, yes, I believe 24 I -- I believe, to my knowledge -- I recall that 25 I knew it was Larry, I believe. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 45 1 Q. Is Larry somebody that you know? 2 A. Like most of the deputies, yes, I know 3 4 them. Q. Do you think that because Mr. Godfrey 5 was the head of the agency he was responsible 6 for the decisions of all 12 of his deputies? 7 8 9 A. Eventually via the appeal process, yes. He's the ultimate -Q. There is a process by which he can 10 consider the decisions. And that is the appeal 11 process. 12 and -- Let me withdraw that. But do you think that he can reach out 13 As an attorney, I'm sure you're 14 aware that the chief justice of the state 15 Supreme Court cannot reach down and tell 16 district court judges what to do in a particular 17 case; right? 18 A. Yeah, I think that's a fair assessment. 19 Q. Even though he's a chief justice, even 20 though he has supervisory power over the 21 district court judges, he cannot ever tell them 22 how to decide a case except in the appeal 23 process; correct? 24 A. Correct. 25 Q. In your work with Chris Godfrey, did HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 46 you ever know him to be unprofessional? 2 A. No. 3 Q. Did you ever know him to be unethical? 4 A. No. 5 Q. Was he someone who had a bad temper? 6 A. Not that I ever saw. 7 Q. Did you ever see him lose his temper? 8 A. I believe in one hearing I was 9 He was always professional. shadowing a small issue came up. Nothing major. 10 Q. He got upset? 11 A. He was upset about it, but nothing out 12 13 14 of the ordinary. Q. But he didn't shout or scream or swear or anything like that? 15 A. No. 16 Q. Did the people at IBP when you came -- 17 18 did they know that Chris was gay? A. You're going to have to define 19 "people," I guess. 20 maybe the people in our area, the work comp 21 area, I would say yes. 22 not know. 23 Q. I would say generally the -- Outside of that, I do Do you have an understanding of the 24 legal significance of Senate confirmation for 25 the workers' compensation commissioner? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 47 1 A. I'm aware of the process, yes. 2 Q. Is there a legal difference between a 3 gubernatorial appointment to an interim position 4 of workers' compensation commissioner and the 5 Senate-confirmed workers' compensation 6 commissioner? 7 8 9 A. I'm not sure I understand what you're asking. Q. Well, let's take Mr. Cortese. 10 Mr. Cortese was appointed to the job, served 11 as -- 12 A. Interim. 13 Q. I think for a period of time and then 14 was confirmed by the Senate just recently. 15 you aware of that? Are 16 A. Yes. 17 Q. During the time that Mr. Cortese was 18 appointed by the governor he served on an 19 interim basis; correct? 20 A. That's correct. 21 Q. Can the governor fire him at that 22 point? 23 A. I guess I don't know. 24 Q. Did you have any role to play in any of 25 the confirmation processes that Chris Godfrey HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 48 (DEPOSITION OF TODD BERESFORD) 1 went through? 2 originally nominated by Governor Vilsack in 3 2006. 4 appointed for the interim when Governor Culver 5 was elected. 6 for the remainder of Mr. Trier's term. 7 in 2009 he was confirmed for a six-year term. 8 So what I want to know is -- I 9 And let me remind you, he was That nomination was withdrawn and he was He was renominated and confirmed have your letter. And then Let's deal with that. 10 Exhibit 171 is a letter that I believe that you 11 wrote to Mr. Ralston about Chris Godfrey. 12 you recognize it? Do 13 A. Yes, I do. 14 Q. It's dated March 7th, 2006; correct? 15 A. It is. 16 Q. And it is a letter of recommendation; 17 correct? 18 A. That is correct. 19 Q. You sought from Mr. Ralston the 20 imprimatur of the ABI, correct -- 21 A. That's correct. 22 Q. -- for Chris Godfrey? All right. 23 24 25 Someplace along the way you changed your mind? A. That's correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. (DEPOSITION OF TODD BERESFORD) 49 So originally when Chris was nominated 2 did you have any conversations with any state 3 senators about him in 2006? 4 A. I did not. 5 Q. Did you have any conversations with 6 anybody about the confirmation process? 7 A. I don't believe so. 8 Q. Did you ever become aware that the 9 10 problems in the confirmation process were due to his sexual orientation? 11 A. I was not aware of that, no. 12 Q. Did you continue to have interaction 13 with him in 2006 and 2007? 14 A. With Mr. Godfrey? 15 Q. Yes. 16 A. Yes. 17 Q. In 2007 did you write a similar letter? 18 I don't think you did, but I don't know. 19 A. Not that I recall. 20 Q. Did you participate in any way with 21 22 respect to the second process in 2007? A. (Exhibit 172 was marked for 23 identification.) 24 25 Not that I recall. Q. Exhibit 172 are a series of e-mails HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 50 (DEPOSITION OF TODD BERESFORD) 1 between you and Mr. Godfrey. 2 look at them. Take a moment to 3 A. Is this the right e-mail? 4 Q. I think it is. This just recommends 5 you. If you look at the bottom of the e-mail, 6 it's from someone who is looking for a speaker 7 for a seminar, and Mr. Godfrey recommends you. 8 "Todd Beresford and James Drury are often in 9 Waterloo and they are excellent attorneys who 10 also work with OSHA regulations. 11 them know that I recommended them to you." 12 A. Oh, up here? 13 Q. Right at the bottom. 14 A. The top you mean? 15 Q. He can't go. You can let He recommends you. 16 Chris, can't go. 17 ever call you, or do you remember? A. 18 He recommends you. He, Did she I don't recall being called. I have 19 been asked to talk at various things throughout 20 the years. This one does not jump out at me. MR. CLAUSEN: 21 And just so the 22 record is clear, these are not e-mails to or 23 from Mr. Beresford. MS. CONLIN: 24 25 No. The next ones are. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 51 (DEPOSITION OF TODD BERESFORD) 1 MR. CLAUSEN: 2 (Exhibit 173 was marked for 3 4 Okay. identification.) Q. 173 is an e-mail to you. 5 is dated April 25th, 2006. 6 sent Chris Exhibit 171. 7 understanding? The top one And you must have Would that be a correct 8 A. I'm still reading the letter. 9 Q. Oh, sorry. Oh, no. 10 That's entirely 11 incorrect. What you attached, I believe, is 12 attached to this document. 13 help me to understand what this is. And maybe you can 14 A. Okay. 15 Q. So this letter that's attached, do you 16 I've read it. remember anything about this? 17 A. I do not. 18 Q. Did you know Iris Post? 19 A. Generally as the commissioner. 20 21 22 23 She was the commissioner when I first started. Q. And this letter had apparently something to do with Iris Post? A. From the e-mail, yeah. I don't recall 24 this specific e-mail or this letter, but I 25 gather that from -- from the exhibit, yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 52 (DEPOSITION OF TODD BERESFORD) And the part of the letter that is at 2 issue is "At the time that the previous demand 3 letter was written, we had also not taken into 4 consideration the appointment of the new Iowa 5 workers' compensation commissioner who, I 6 believe, will be more claimant-friendly." 7 I think that's the sentence at 8 issue. 9 A. It is highlighted, yes. 10 Q. And we don't know who this letter went 11 Do you agree? to or who it is allegedly from; correct? 12 A. If I did then, I do not recall now. 13 Q. But it was distributed by ABI? 14 a correct understanding? A. 15 16 Is that I don't recall the letter, so I do not know. Q. 17 Well, you say to Mr. Godfrey "I have 18 attached a copy of the ABI letter that you 19 wanted to see." A. 20 21 22 ABI. Okay. Then I presume it came from the I do not recall the letter, though. Q. He then thanks you for tracking it 23 down. 24 it came from Iris Post's office. 25 A. And somehow you must have told him that Is that right? I don't remember the letter, so I HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 (DEPOSITION OF TODD BERESFORD) 53 can't -Q. Would you have sent it to him with these redactions? A. Again, I don't remember this 5 conversation, the letter, so I can't say one way 6 or the other. 7 (Exhibit 174 was marked for 8 9 10 identification.) Q. Exhibit 174 is in July. This is just a short little letter. 11 A. Okay. 12 Q. He's just notifying you that the 13 injuries are still being reported under IBP's 14 name. Do you see that? Do you see that? 15 A. Yes, I do. 16 Q. Do you remember this at all? 17 A. I don't remember the letter, no. 18 Q. Did you change the reporting at that 19 20 time, or do you recall? A. I don't recall. If I received this 21 letter, I probably would have forwarded it on to 22 Sherri Hansen, who handles all of our EDI 23 functioning. That's not my area of expertise. 24 Q. EDI, what is that? 25 A. The electronic data exchange or HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 something. 2 area. 3 for us. 4 person. I think -- Again, that's outside my Sherri Hansen deals with the -- that area She's our computer, EDI-designated 5 (Exhibit 175 was marked for 6 7 54 (DEPOSITION OF TODD BERESFORD) identification.) Q. 175 is right up your alley. It's an 8 invitation by Chris to attend a Kaizen event 9 about electronic redesign. 10 11 12 Do you remember this? A. I think I do remember generally being asked, informed about this and -- 13 Q. And did you do it, or not? 14 A. No, I did not. 15 Q. Time constraints, or something else? 16 A. I think it was time constraints. If I 17 recall, it might have been a family vacation or 18 something at the time. 19 sure. 20 not attend. I am not 100 percent I just know I was unable to do it and did 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 55 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 56 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 57 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 58 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 59 cq (DEPOSITION OF TODD BERESFORD) 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Q. Are you aware of any time in which 16 Commissioner Godfrey ever made a public 17 statement in favor of employee choice of doctor? 18 A. Am I aware if he made a public -- 19 Q. Yes. A public statement that he wanted 20 employees to be able to choose their own doctors 21 or that in substance. 22 A. I wouldn't know. I mean, I don't 23 recall hearing that, but I don't know if he did 24 or he didn't. 25 Q. At any time did you ever hear that he HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 61 1 said that or believed that at any time during 2 his term as workers' compensation commissioner 3 from 2006 until -- 4 A. 5 statement. 6 Q. 7 I personally did not hear him make that Did you ever hear of him making that kind of statement? 8 A. Not that I recall. 9 Q. Were you aware of the Sixth Edition 10 Guide to the Evaluation of Permanent Impairment? 11 A. I'm familiar with it, yes. 12 Q. Tell me how you're familiar with it. 13 A. I don't recall how many years ago it 14 was the Sixth Edition came out. At that time 15 there was some discussion whether Iowa would 16 adopt the Sixth Edition. I know there was a task force put 17 18 together that discussed the pros and cons. 19 think interested stakeholders from the defense, 20 the claimant side, medical, I believe, all came 21 together and, you know, discussed it and came up 22 with a recommendation to I believe not use the 23 Sixth Edition. 24 25 Q. Did you present any testimony or do anything in terms of the task force? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq (DEPOSITION OF TODD BERESFORD) 62 1 A. No, I did not. 2 Q. Did you review the task force report? 3 A. I believe I read it at the time, yes. 4 Q. Did you have any disagreement with the 5 way that the process was conducted? A. 6 I wasn't directly involved in it, so I 7 guess I can't comment. 8 workings of it personally, so -Q. 9 10 I don't know the inner Helenjean Walleser was the task force moderator, director; correct? 11 A. I do not know who the moderator was. 12 Q. Did you want Iowa to adopt the Sixth 13 Edition Guides to the Evaluation of Permanent 14 Impairment, or did you care? A. 15 I did not have an opinion really either 16 way. 17 director, and I believe he was not in favor of 18 it at the time, so -- 19 20 I think I discussed it with our medical Q. Not in favor of adopting the Sixth Edition? 21 A. Yes. 22 Q. Let's get that clear on the record, 23 24 25 because I interrupted you. Is it correct that you discussed with your medical director adoption of the Sixth HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 63 (DEPOSITION OF TODD BERESFORD) 1 Edition of the Guides to the Evaluation of 2 Permanent Impairment and he was not in favor of 3 adopting the Sixth Edition? Correct? 4 A. I believe so. 5 Q. Is that John Kuhnlein? 6 A. That is correct. 7 Q. And he is on the task force; correct? 8 A. I think he might have been. 9 10 11 Correct. I honestly don't recall who was on the task force. Q. At some point along the way Tysons left ABI; correct? 12 A. I believe so, yes. 13 Q. Why? 14 A. That is not in my area. I don't handle 15 the ABI and those type of associations. 16 got a government relations department that that 17 falls under. 18 19 Q. We've Did it have anything to do with Chris Godfrey, if you know? 20 A. I don't know. 21 Q. Would you have had any input in the 22 decision to leave ABI? 23 A. Me directly, no. 24 Q. Well, indirectly in any way? 25 A. No. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) Q. 64 You indicated you knew John Gilliland; correct? 3 A. That's correct. 4 Q. Did you ever discuss Chris Godfrey with 5 6 John Gilliland? A. I don't recall direct conversations. 7 I'm sure at some point during ABI meetings it 8 came up. 9 Q. He said he shared information with you 10 about Chris Godfrey. 11 of that? Do you have a recollection 12 A. I don't recall a specific conversation. 13 Q. Did you ever have a discussion with 14 Mr. Gilliland about Mr. Godfrey's sexual 15 orientation? 16 A. No, I did not. 17 Q. We talked about your first meeting at 18 which the governor was present. Let's talk 19 about any other meetings during the campaign 20 that you had. 21 Self-Insurers Association. I've got some documents from the 22 A. Okay. 23 Q. But any other time that you had any 24 discussion with the governor, any member of his 25 staff about anything having to do with workers' HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 65 (DEPOSITION OF TODD BERESFORD) compensation? 2 A. During the campaign? 3 Q. During the campaign. 4 A. To the best of my memory, I think it 5 was the two occasions. It would have been the 6 time at Tyson and then when he attended -- or 7 briefly spoke at the ISIA conference that fall. 8 Q. No other occasions? 9 A. Not that I recall. 10 Q. Do you know of any meetings that the 11 governor had with any executives of Tyson, aside 12 from yourself? 13 A. Not that I'm aware of. 14 Q. Did you ever meet with the lieutenant 15 governor during the campaign? A. 16 I don't believe so during the campaign, 17 no. 18 at that event or not. 19 don't recall. 20 She may have -- I don't recall if she was Q. She may have been. I At what point in time did you change 21 your mind about Chris Godfrey's ability to be 22 the workers' compensation commissioner? 23 A. I don't have a specific date. I 24 wouldn't say it would be a specific changed my 25 mind about his ability. It's just the way HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 66 (DEPOSITION OF TODD BERESFORD) 1 decisions were being issued and trends in the 2 agency became concerning over time. 3 give you an exact date. 4 5 Q. I can't Well, before or after the 2009 process where he received his six-year term? 6 A. I would say it was before. 7 Q. Before 2009? 8 A. Yes. 9 Q. To whom did you express your concerns 10 about Chris Godfrey? 11 A. Internally at Tyson it was discussed. 12 Q. Particular decisions having to do with 13 14 15 16 Tysons? A. Tyson, as well as other non-Tyson decisions, yes. Q. And did you discuss it with anyone 17 outside of Tysons? 18 Any member of the Iowa Senate? 19 the administration? 20 A. Mr. Gilliland? Mr. Ralston? Any member of ABI obviously -- Yes, there was 21 discussions. 22 committee there, and it certainly came up. 23 There was a lot of employers who had similar 24 concerns and felt -- had similar feelings. 25 I was on the work safety, I think, So yes, it was discussed among HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 67 (DEPOSITION OF TODD BERESFORD) ABI members at those meetings. Q. What was discussed? Tell me the nature of the discussions. A. Just what employers felt were much 5 higher awards, much more liberal findings, which 6 were increasing, you know, their workers' 7 compensation costs. 8 9 10 11 Q. How often did the workplace safety committee of ABI have meetings? A. I believe it was just once yearly they had a formal meeting. 12 Q. At the time of the annual convention? 13 A. No. 14 fall. 15 that -- 16 I think it was typically in the August or September, October. Q. Usually in I don't have the minutes of those 17 meetings yet, though I have asked for them, and 18 I expect to be given the minutes. Would you have discussed 19 20 Mr. Godfrey, do you think, in 2008 at the annual 21 meeting? 22 A. I -- I don't recall the meeting. I 23 don't know if I attended the 2008 meeting at 24 this time. 25 Q. What you can recall is some general HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 68 discussion -- 2 A. Yes. 3 Q. -- of employers that they thought that 4 decisions were becoming too generous to 5 employees. 6 7 8 9 Is that a correct understanding? A. They were concerned about the decisions, yes, employers were. Q. And the reason they were concerned is 10 because too much money was being given to 11 employees; right? 12 A. No. 13 Q. Why were they concerned? 14 A. They were concerned about the awards. 15 I wouldn't say it was too much money to the 16 employee. You know, causation was one of 17 18 the issues on things that they didn't feel were 19 compensable or, yes, money was one of the 20 considerations, in terms of what they felt were 21 much higher awards than they typically were in 22 the past. 23 24 25 Q. Well, most awards are made at the deputy level; correct? A. Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 69 And that we've already agreed is not 2 something that Mr. Godfrey can interfere with; 3 correct? 4 A. No. 5 Q. No, it's not correct? 6 A. I wouldn't say that's correct, no. 7 Q. You think that Mr. Godfrey can, in 8 fact, interfere with the individual decisions of 9 deputies? 10 A. No. 11 Q. I think I'm asking a very bad question. 12 That's not what I said. I apologize, Mr. Beresford. Let me try again. 13 A. Okay. 14 Q. I believe that we have agreed that 15 Mr. Godfrey has to keep his hands off of the 16 decision-making process of deputies; correct? 17 A. I think before they issue their 18 decision, yes. I don't think the commissioner 19 should go in there and interfere with their 20 judgment or their decisions. 21 Q. That's what I'm talking about. 22 A. Okay. 23 24 25 Yes, I would agree with that clarification. Q. Only a few cases are appealed to the commissioner; right? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. 70 (DEPOSITION OF TODD BERESFORD) I don't have the statistics. There are 2 a number of cases that get appealed, just from 3 my experience. 4 5 6 Q. Well, is it 50 percent or 10 percent? Give me an idea. A. I would say over 50 percent, at least 7 in cases I'm familiar with. 8 Obviously I don't have the statistics from the 9 agency. 10 11 I don't know -- So if you have them, they can speak for themselves. Q. So some number get appealed. And 12 that's the process by which the workers' comp 13 commissioner can impact the awards to individual 14 workers; correct? 15 A. That's one of the ways, yes. 16 Q. What other ways? 17 A. I think the commissioner has got a 18 provision in the code where he can hear any case 19 or go back on his own and take a look at any 20 deputy decision. 21 Q. Without an appeal? 22 A. I believe so, yes. 23 Q. Did you have any discussions about 24 25 Mr. Godfrey with Mr. Ralston? A. Not that I'm aware of. He may have HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 71 (DEPOSITION OF TODD BERESFORD) 1 been at a meeting when it was generally talked 2 about. 3 him specifically. I don't personally remember talking to 4 Q. Do you know Myron Lynn? 5 A. I know his name. 6 I don't know him personally. 7 Q. Do you know Dennis Murdock? 8 A. Never heard of him. 9 Q. The newsletter of the Iowa 10 Self-Insurers Association, who prepared that? A. A lot of times I would formally send it 13 Q. Did it come out at a particular time? 14 A. No. 11 12 15 out. Just depending on if there was some -- something relevant going on. 16 Q. It's e-mailed; correct? 17 A. That's correct. 18 Q. To how many people? 19 A. I would say -- Off the top of my head, 20 I think there's 150 or so e-mails. 21 know. I'd have to check. I don't I haven't looked. 22 Q. Do you still run it? 23 A. Yes. 24 Q. So when did it start? 25 A. It would have been about two thousand HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 72 1 and -- I think we're going on about six or seven 2 years. 3 exact. 4 Q. 5 since? 6 A. Yes. 7 Q. Anybody have any input into the 8 About 2009, I believe. I don't have the And you have been its author ever authorship aside from you? 9 A. Yes. 10 Q. Who else? 11 A. Any of the members can -- 12 Q. They can call your attention to a 13 particular decision or to a development in the 14 area of workers' comp; correct? 15 A. Yes. 16 Q. When you say you are self-insured, is 17 it for all purposes like property and casualty 18 and toxic torts and E&O, or is it just workers' 19 comp? 20 21 22 A. I only handle the workers' compensation area, so that's all can I speak to. Q. So the Self-Insurers Association, of 23 which you are a member and for which you produce 24 the newsletter, that's only workers' comp; 25 correct? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 73 (DEPOSITION OF TODD BERESFORD) 1 A. That is correct. 2 Q. So there's nothing about any other 3 4 5 6 issue like toxins or environmental -A. It's devoted entirely to workers' compensation. Q. Exhibit 63 is the invitation that you 7 sent to the governor's office. Exhibit 63 is 8 from you dated August 26th, 2010. 9 invites Lance Horbach and Candidate Branstad to And it 10 the meeting of the Iowa Self-Insurers 11 Association; correct? 12 A. That's correct. 13 Q. Did you have some conversation or 14 interaction directly with either of these 15 invitees? 16 17 A. No. I believe we communicated through a staff member when we requested him to attend. 18 Q. What about with Horbach? 19 A. I had met him at various functions over 20 the years. 21 Q. Yes, I've had contact with him. When you met him, tell me about any 22 conversations you had with -- Was he a 23 representative or a senator? I can't remember. 24 A. Representative, I believe. 25 Q. Did you have conversations with him, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 74 (DEPOSITION OF TODD BERESFORD) I'm sure, about workers' comp? 2 A. Yes. 3 Q. About Chris Godfrey? 4 A. Workers' compensation in general, yes. 5 Q. What was the nature of your 6 7 conversations about Mr. Godfrey? A. It would be more on workers' 8 compensation issues in general with Mr. Horbach. 9 I recall working on a few pieces of legislation 10 that we wanted to see addressed in the workers' 11 compensation system with him. 12 Q. What did you work on with him? 13 A. I believe -- I believe one of the 14 issues we discussed with him was the interest 15 rate on awards under the Workers' Compensation 16 Act, looking for a statutory change to it. 17 Another issue we would have 18 talked about, I think, was commutations and 19 making a statutory change to that particular 20 statute. 21 Q. What did you want to do? 22 A. Interest rates, we were seeking to 23 lower it. In Iowa they're not -- they're at 10 24 percent, not tied to any other judgment. 25 were looking to change that to what all the -- a HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 So we cq (DEPOSITION OF TODD BERESFORD) 75 1 level consistent with other awards in district 2 court actions. 3 Commutations, we were looking to 4 put a -- some type of a provision on those, 5 limiting commutations and having more input on 6 them so they weren't granted as regularly or 7 freely without, you know, employers having any 8 say in the situation. 9 10 Q. Employers always have a say in a commutation, don't they? 11 A. No. 12 Q. Well, they have to be approved; right? 13 A. They have to be approved, yes. 14 Q. The interest rate on awards or the 15 interest rate with respect to commutations, did 16 either of those change? 17 A. They have not, no. 18 Q. But those are the things you were 19 20 working with Mr. Horbach on? A. There may have been some others. Those 21 are the two, I think, that we were -- that I 22 recall at least particularly focusing on. 23 Q. When you say you focused on them, did 24 you go to the legislature and talk to people 25 about it, or how did you focus on them? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) A. 76 At that time I believe Mr. Horbach was 2 the House labor chair. 3 think, having him sponsor. 4 if he did end up sponsoring a bill at the time, 5 but that's what the general discussions were 6 about, trying to get some of that legislation 7 out in at least the Iowa House. 8 9 10 Q. And we discussed, I And I don't remember Well, let's go back to 63, which is the invitation to speak to the Iowa Self-Insurers Association. Both men came; correct? 11 A. I believe -- Yes, I believe so. 12 Q. Were the interactions tape-recorded in 13 any way? 14 A. Not to my knowledge. 15 Q. Were minutes taken or -- 16 A. Not to my knowledge. 17 Q. How long did Candidate Branstad speak? 18 A. I would guess 15 minutes, maybe. Yeah. 19 I don't think it was longer than 15 minutes. I 20 think he generally spoke. 21 during the campaign. 22 say as a more campaign-type stump speech. 23 believe he might have answered a few questions, 24 did a few Q&A at the end. 25 probably. Again, that was It was more what I would And I So 20 minutes total, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 77 The topic at the meeting was workers' 2 comp because that's what this is all about; 3 right? 4 A. It was. I believe he, you know, 5 focused on work comp, but I believe he kind of 6 talked about his overall view again for Iowa, 7 job creation, some of those type of situations. 8 I wouldn't say it was totally limited to work 9 comp, no. 10 Q. The questions were about workers' comp? 11 A. I believe most of the questions were 12 probably about work comp. 13 Q. Well, can you tell me what they were? 14 A. Again, at that time I think it was 15 general questions, that people were raising 16 concerns about the current system and, you know, 17 the awards and the increased costs. And I believe Candidate Branstad 18 19 at the time just said it was an issue that he 20 had been hearing as he traveled across the state 21 and if he was elected, you know, governor, that 22 would be one of his priorities that he would 23 look into. 24 Q. 25 Did he say how he was going to look into it? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 78 (DEPOSITION OF TODD BERESFORD) 1 A. No. I believe it was just a general -- 2 Q. Did he mention Chris Godfrey by name or 3 was Chris Godfrey mentioned by name by one of 4 the questioners? 5 A. Not that I recall. 6 Q. What exactly did the candidate for 7 governor say he was going to do about workers' 8 compensation? 9 A. Again, I think I just said that. It 10 was a general statement that that would be one 11 of his priorities or something -- if he was 12 elected, he would be looking into that 13 particular issue, that would be something that 14 he would focus on. 15 16 17 Q. Did he say that he would suggest statutory changes? A. I don't recall him saying that. 18 not saying he didn't. 19 recall. 20 21 22 Q. I'm I don't -- I don't Did he say he would suggest or implement staff changes? A. No. I'm pretty sure it was, again, a 23 general comment. I don't remember him relaying 24 any specific ideas other than to say it was one 25 of his priorities that he would look at. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 79 Are you aware of what Governor 2 Branstad's level of knowledge is with respect to 3 workers' compensation? 4 A. No, I am not. 5 Q. Have you ever had any conversations 6 with him or with any member of his staff about 7 individual cases? 8 A. 9 staff. 10 Q. 11 12 13 No, not that I believe, with him or his Did he promise any legislation, the governor? A. Did the governor promise any legislation? 14 Q. Or Mr. Horbach? 15 A. Or what? 16 Q. Mr. Horbach. 17 A. No. Excuse me? Mr. Horbach, we did talk about 18 some of those proposals. 19 remember at the time if any of those made it out 20 of the House labor committee or were even 21 introduced. 22 23 Q. And again, I can't I just don't recall. Well, was the governor there while Mr. Horbach spoke and vice versa? 24 A. No. 25 Q. So did the governor speak first or HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 80 (DEPOSITION OF TODD BERESFORD) second, or do you have any idea? A. If I recall, he was coming in, and he 3 had a short amount of time. 4 if Mr. Horbach was speaking or another speaker, 5 and we kind of interrupted, and he came up and 6 talked for his 15 minutes and then immediately 7 left. 8 9 Q. So I don't remember So he did not stay. In here you say "We have you scheduled to speak at 10 a.m. on September 15th. It's 10 pretty informal and wanted to give you time to 11 discuss your general thoughts on the state of 12 W.C. in Iowa followed by questions and possibly 13 personal examples from various Iowa employers on 14 their recent experiences with the Iowa workers' 15 compensation commissioner's office to hopefully 16 give you both a better perspective on what 17 employers are facing." 18 19 20 21 Were any personal examples given to the governor? A. I don't believe the governor, no. I think he left immediately after speaking. 22 Q. He did not answer any questions at all? 23 A. No. 24 questions. I don't recall the specific 25 questions. It was very brief, though. I think he did answer a couple of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 81 (DEPOSITION OF TODD BERESFORD) 1 Q. How many people were at this meeting? 2 A. I don't know the exact numbers. 3 Historically we have between 75 and 110 4 attendees at this conference. 5 year I would say that's probably a fair 6 assessment, somewhere between that. 7 Q. This particular And Mr. Horbach addressed the interest 8 issues and commutations and awards that you were 9 discussing with him? 10 11 12 A. I believe that was one of the areas that, yes, he did talk about or discuss. Q. As to commutations, they're either 13 stipulated by the employer and the employee or 14 there is a contested case proceeding with 15 respect to them; right? 16 A. That's correct. 17 Q. So there's full due process. 18 You didn't mean to imply otherwise, did you? 19 A. I would say, yeah, you have a right to 20 a hearing. 21 oftentimes they are granted in times that they 22 don't believe they should be granted. 23 you've got a right to a hearing. The issue I think employers face is But yes, 24 Q. And a right to present evidence? 25 A. That's correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 82 (DEPOSITION OF TODD BERESFORD) 1 Q. A right to present argument? 2 A. That's correct. 3 Q. And you say that they are usually 4 granted, the commutations are usually granted? 5 A. In my experience, yes. 6 Q. And as I recall, a commutation provides 7 the workers with the total award all at one 8 time. 9 A. A full commutation, yes. 10 Q. After this meeting did you have any 11 further conversation with the governor before 12 his election? 13 A. I do not believe so. 14 Q. From the time of his election until the 15 time he took office, the transition period, did 16 you have any conversation with him? 17 send him any e-mails, to him or to members of 18 his staff? 19 A. Not that I recall. 20 Q. You didn't have a meeting with the Did you 21 governor-elect at any time in the transition 22 period? 23 A. I recall being at a meeting, but I 24 think it was after he took office. 25 remember the dates. I don't So I don't think I met with HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 83 (DEPOSITION OF TODD BERESFORD) 1 him that I recall during the transition period, 2 no. 3 4 5 Q. Tell me about the meeting with him you had after he took office. A. We had a meeting for the -- for -- 6 again, the ISIA had a legislative day at the 7 capitol where a number of members got together, 8 talked to different legislators about workers' 9 compensation issues. We did have a meeting. 10 11 we met with House -- Linda Upmeyer. 12 she's the House -No. I believe I believe 13 Q. Whip. Majority leader. 14 A. Majority leader. 15 Q. Right. 16 A. I believe we met with her as a group. There was a senator who I think 17 18 was the minority leader of the House at the 19 time. 20 meeting with him that day. I can't recall his name. We had a And then we had a meeting with, I 21 22 believe, Governor Branstad. 23 lieutenant governor was at that meeting too. 24 don't know the dates, so I don't recall. 25 Q. And I believe the I Did you discuss Chris Godfrey at any of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 these meetings or the workers' compensation 2 commissioner? 3 4 5 A. Yes. 84 That was the primary discussion, was workers' compensation. Q. Well, that's the only thing that the 6 Self-Insurers Association is concerned with; 7 correct? Workers' compensation? 8 A. Yes. 9 Q. What I want to know is what you talked 10 about. 11 A. Generally it was employers talking 12 about, you know, their -- what they believe was 13 the problems with the current workers' 14 compensation system. 15 particular member talked about the concerns they 16 had, a trucking individual. I recall, I think, a 17 Q. What were his concerns? 18 A. Just the -- in general the way the work 19 comp system was, the way their costs had gone 20 up, the problems they were facing. 21 22 23 Q. First of all, how much had their costs gone up? A. I do not know. He made a general 24 comment that day. I don't think he provided 25 specific numbers. I don't recall off the top of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 85 1 my hand -- head. 2 because one of the concerns they had was 3 possibly moving, I think, their operations to 4 another state, to Indiana or somewhere. 5 6 Q. He just talked in general, But he said his costs had gone up; correct? 7 A. I believe that's the words he used. 8 Q. And he also said they had problems. 9 10 11 What were the problems aside from the costs going up? A. I think the costs were the primary -- 12 was the primary concern on that. Again, claims 13 they didn't think were historically compensable 14 that they felt now were compensable. 15 Q. Like what? 16 A. He didn't give specific examples. 17 was a long time ago. 18 specifics. 19 Q. It I don't recall all the And this was in a larger meeting or 20 with just one or two people, or do you recall 21 that? 22 A. If I was to guess, I would say there 23 was probably 20 -- 20 to 25 people, maybe. 24 don't recall exactly. 25 Q. All members of the legislature or HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq 1 86 members of the Self-Insurers Association? 2 3 (DEPOSITION OF TODD BERESFORD) A. There were some employers there who were not actual members. 4 Q. They're self-insured, however? 5 A. Yes. 6 Q. Does the Self-Insurers Association have 7 any sort of legislative priorities that they 8 adopt? 9 A. We have developed some legislative 10 changes over the years that we would like to 11 see. 12 13 14 Q. What are they, aside from the interest rate, which I understand? A. Those are the two big ones, I would 15 say, are -- commutation and interest rates are 16 two of the biggest areas that the collective 17 group would like to see change. 18 19 20 21 22 23 Q. Have you given any attention to the issue of a medical fee schedule? A. That -- That issue has not come up or not been a priority issue. Q. How much of the costs of workers' compensation are attributable to medical fees? 24 A. I do not know. 25 Q. Does two-thirds seem right to you? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 87 (DEPOSITION OF TODD BERESFORD) 1 A. I do not know. 2 Q. You don't keep track of that? 3 A. I've got the total claim cost. 4 5 6 7 don't know right now, no. Q. Have you ever broken out your total costs by state? A. Generally I have an idea on the states 8 I handle on particular cases, I guess -- 9 particular injuries, I should say. 10 I just Q. But you haven't actually sat down and 11 figured out how much costs have been for Iowa 12 over the course of the time that you have been 13 the head of that department. 14 understanding? 15 A. Repeat the question one more time. MS. CONLIN: 16 17 Would you read it back, please? (Requested portion of the record 18 was read.) 19 20 Is that a correct A. No. They have gone up, I know. 21 don't have by how much, et cetera. 22 have it broken down specifically. 23 Q. All right. No, I No, I don't So this is just a feeling 24 that you have based on all of the cases that you 25 have looked at? Is that a correct HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 88 (DEPOSITION OF TODD BERESFORD) understanding? 2 A. Yeah. I mean, it's pretty easy. I see 3 all the decisions that come in. 4 seeing what they're coming in as, you know, a 5 particular type of surgery, yes, they've gone 6 up. 7 You know, Particularly the biggest area, I 8 think, in the last ten years are the 9 subjective -- what I call the subjective-only 10 claims, where there is no surgery, no type of 11 real objective findings on, you know, MRIs, 12 EMGs. 13 of employers -- you know, they have been pointed 14 out not only by Tyson, by others as being very 15 costly and impacting their costs. And those are the claims, I think, a lot 16 Q. Give me an example. 17 A. A person comes in and says their 18 shoulder is bothering them. 19 The MRI doesn't show anything on it. 20 done, maybe a bone scan, a whole plethora of 21 diagnostic tests, and nothing shows up, yet they 22 continue to voice subjective complaints. 23 An MRI is taken. An EMG is They end up being nonsurgical and 24 go get an IME, an independent medical exam, and 25 they diagnose them with whatever and give them HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 89 restrictions and impairment. 2 Those are the type of claims that 3 have been particularly troublesome, I think, to 4 a lot of employers. 5 Q. What would you do about those claims? 6 A. Define -- What do you mean what would I Q. Well, if you were in charge, how would 7 8 9 10 do? you fix the problem that you've identified? A. Well, I think one of the biggest 11 concerns coming from an employer's perspective 12 or my background is, you know, having some 13 objective findings before issuing some of these, 14 you know, awards. 15 continues to work for you, they have no wage 16 loss, everybody goes about their day. Especially when the employee And yeah, they may have some 17 18 subjective complaints, but rewarding them with a 19 50 or 60 percent industrial disability award in 20 those types of situations, you know, are very 21 hard to swallow for most employers. 22 Q. So you would require that for any 23 employee to receive workers' compensation he or 24 she must demonstrate objective scientific 25 findings. Is that a correct understanding of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 90 your position? 2 A. In an ideal world, I would love that to 3 happen, but no. 4 cases where yeah, I do believe people have some 5 problems, but if they're able to function, you 6 know, despite some subjective pain complaints, I 7 certainly don't think an award in a 50 or 60 8 percent range is reasonable, no. 9 Q. You know, there are certain Well, name me a case in which a 50 to 10 60 percent disability body as a whole has been 11 awarded to someone with no objective findings. 12 A. I don't have one right now. 13 Q. Have you had one ever? 14 A. Yes. 15 years. 16 Q. From Iowa? 17 A. Yes. 18 Q. Did you ever write down anything about 19 such a case? 20 21 22 23 I've seen a lot of them over the A. I haven't specifically wrote it down, Q. Have you ever seen a decision that no. doesn't cite to a supportive medical opinion? 24 A. Do you want to rephrase that? 25 Q. Well, can you tell me about any case HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 91 (DEPOSITION OF TODD BERESFORD) 1 that you know of where the deputy or the 2 workers' compensation commissioner utterly 3 failed to attend to the medical evidence? 4 A. Well, in my opinion, yes. 5 Q. Tell me about it. 6 A. There are a lot of cases, I think, 7 again, from my perspective. I think that's one of the 8 9 problems with the current system. The way the 10 comp system is set up right now is essentially 11 you can have one medical report from, you know, 12 a chiropractor, for that matter, or a nonmedical 13 doctor, and it's really up to the deputy and the 14 commissioner to weigh that evidence. You could have ten 15 16 board-certified Harvard doctors saying one 17 thing, or Ivy League doctors, and you could 18 have, you know, a chiropractor issuing a 19 causation opinion. 20 standard of review, as long as there's a 21 medical -- I wouldn't even say they require a 22 medical record -- or a medical report in some 23 cases. 24 that more weight, as well as the commissioner. 25 Q. And under the current The deputy is free to weigh that, give So we have the rule of objective HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 92 1 findings. Now another rule that you would like 2 to have is a rule where the number of medical 3 opinions is what the deputy must look at. 4 if you've got five medical opinions on one side 5 and only one on another side, then the deputy 6 has to take the five? And 7 A. No. 8 Q. What did you just tell me? 9 A. I said that's a concern, the types of 10 claims -- when you see that, when you've got 11 five or six well-qualified opinions, and they're 12 totally disregarded for another opinion, yeah, I 13 think there's some flaws in that system. 14 Q. Well, then what you want to see is the 15 majority rules in terms of medical opinions; 16 correct? 17 A. I'm not saying that, no. 18 Q. What are you saying? MR. CLAUSEN: 19 20 answer that. In response to what question? 21 22 You don't have to Q. Well, I'm sincerely trying to 23 understand what you think would be the ideal 24 workers' compensation system. 25 with objective findings, but I'm also now trying And we've dealt HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 93 (DEPOSITION OF TODD BERESFORD) 1 to understand what you're saying about medical 2 opinions. 3 the majority rules, but you tell me not. And what I think you are saying is 4 So I want to know how you make 5 your distinction. 6 would you decide a case involving contested 7 medical facts, which as best I can determine is 8 always the case? 9 If you were a deputy, how Is that a fair question, or not? 10 A. I don't believe so, no. 11 Q. Okay. Let me try again. MR. CLAUSEN: 12 And when you do, 13 would you keep in mind we've been going for a 14 while and we're at noon? 15 Q. 16 noon hour. 17 A. Why don't you think about this over the How would that be? If you want to finish that. MR. CLAUSEN: 18 19 20 21 So -- Yeah. If you want to finish your thought, that's fine. Q. All right. So let's try to finish this. 22 A. Okay. 23 Q. I'm trying to get at what rules you 24 would make. I'm trying to understand what you 25 as a representative of an employer who is HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 94 (DEPOSITION OF TODD BERESFORD) self-insured thinks the ideal system would be. 2 And from what you've told me, I'm 3 gathering that you think that when there are a 4 number of medical opinions on one side and only 5 one on the side of the employee, that the number 6 of medical opinions should prevail. 7 correct or not correct? 8 A. That is incorrect. 9 Q. Okay. Is that So how would you have a deputy 10 decide a case where there are a number of 11 opinions on one side and one opinion on the 12 other side? 13 A. I can't make a carte blanche rule. 14 Q. Oh, well, see, that's kind of my point. 15 That's why you have to have people making 16 decisions, is it not? 17 A. Yes, it is. 18 Q. And was the flaw in the way that the 19 deputies were selected, do you think? MR. CLAUSEN: 20 21 to the form of the question. 22 talking about? 23 Q. I'm going to object What flaw are we Flaw in what? We're talking about the flaw in the 24 workers' compensation system with respect to 25 medical opinions. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 95 (DEPOSITION OF TODD BERESFORD) 1 A. Repeat your question, please. 2 Q. Do you believe that deputies who are 3 selected to decide the issues are selected in a 4 way that favors employees? 5 A. I think there are certain deputies who 6 tend to be more liberal and tend to be more -- 7 some tend to be more conservative. 8 are certain deputies, I think, who will favor 9 the injured employee. 10 11 12 13 14 15 16 Q. And certain deputies who favor the employer? A. In certain circumstances they may be more conservative, I would say. Q. Do you think that's true of district court judges? A. I think everybody has got their 17 personal -- They're all humans. 18 their personal situations. 19 20 21 Yes, there Q. They've got And yes. How would you eliminate those personal predilections? A. Well, from an employer's perspective, I 22 think one of the biggest frustrations that we 23 have or we hear is there is no consistency in 24 the agency. 25 And, you know, that's a problem. I think in years past, before I HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 96 1 was here -- before I was involved in work comp, 2 I think when Commissioner Orton was here, I had 3 heard they had staff meetings, they kind of 4 talked about particular cases, you know, and 5 kind of had ranges of, you know, what the 6 commissioner at that time felt particular 7 conditions were worth. 8 were kind of within a -- you know, an area. 9 So most of the deputies Right now, you know, you can have 10 one commissioner hearing one set of facts and 11 you're getting a 25 percent industrial versus 12 another getting a 75 based on the same facts, 13 which is, you know, a swing of maybe $100,000. 14 So that is what's troubling and 15 concerning from my perspective and I think a lot 16 of employers' perspectives. 17 Q. So what you want is consistency. So it 18 doesn't matter to you whether it's a 25 percent 19 award or a 75 percent award, as long as it's 20 consistent across the board. 21 A. Is that correct? I think there needs to be consistency. 22 Coming from our perspective, you know, when 23 you've got a claims adjuster trying to reserve a 24 file and all the requirements on an adjuster 25 under all the various acts they have, you know, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 97 1 in order to keep our self-insurance, we have to 2 accurately -- or they're supposed to be 3 accurately reserving a file. 4 It's pretty hard for, you know, 5 an adjuster to do that when it all comes down 6 to, you know, the same facts, same surgery, you 7 have no idea what the range is going to be 8 anymore. 9 10 MR. CLAUSEN: have to take a break. 11 12 13 And we're going to (Recess 12:10; resume 12:55.) Q. Is John Deere a member of the Self-Insurers Association? 14 A. Yes, they are. 15 Q. Who from John Deere is a member? 16 A. They've got a number of people. 17 Kopps is one. 18 members. 19 cannot think of his name. 20 21 Q. Gary The name is -- One of our board The name is slipping right now. I If it comes to you, will you stop and tell me? 22 A. Okay. 23 Q. There is a board? 24 A. Yes. 25 Q. Are there dues? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 98 (DEPOSITION OF TODD BERESFORD) 1 A. Yes, there are. 2 Q. Based on how big the company is or on 3 some -- 4 A. No. 5 Q. Just a flat rate? 6 A. A flat rate. 7 Q. How many members on the board? 8 A. Five. 9 Q. And can you tell me who they are? 10 A. Can you pull up the website real quick? I believe Courtney Smith. 11 12 Q. And where is she from? 13 A. She is from Rockwell Collins. Her name 14 has changed because she recently got married. 15 don't know what her current name is. John Deere. 16 I Scott Folkers from 17 Winnebago Industries. Mark Pfeiffer from Ag 18 Processing. 19 Foods. 20 Q. Are you the president? 21 A. I'm not on the board, but yeah, I'm the 22 president. 23 Q. And Steve Kieffer from Fareway And that's a small board, so I don't 24 imagine you have like any executive committee or 25 anything like that. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. 99 (DEPOSITION OF TODD BERESFORD) We've got some informal -- We've got 2 like a -- I think three separate committees. 3 One is a recruitment committee, one is a seminar 4 committee. 5 be the two standing committees. 6 Q. I guess two committees. Those would We were talking about how to fix the 7 Workers' Compensation Division from your 8 standpoint. 9 proof from a preponderance to something else? 10 11 12 13 14 A. Would you change the burden of I guess I haven't really thought about the burden of proof before. Q. Would you change the requirement for proving causation in some fashion? A. From my perspective as an employer 15 rep -- representative, sure, I would like, you 16 know, the causation standard to probably be a 17 little higher level. 18 Q. Well, beyond a reasonable doubt? 19 A. I don't know if beyond a reasonable 20 doubt fits in the work comp setting. Where I 21 have, I think, the -- everybody has the biggest 22 issue is probably your aggravation-type 23 injuries, in that situation, because anything 24 can -- is going to be aggravated by about 25 anything you do at work. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 100 (DEPOSITION OF TODD BERESFORD) 1 So yes, I would like to see a 2 stronger standard, maybe, in that area. 3 primary factor or a prevailing factor or 4 something, I think, would be a little easier. 5 6 Q. Maybe a The changes we've discussed for the most part require statutory changes; correct? 7 A. You are correct. 8 Q. What other states do you oversee aside 9 from Iowa? 10 11 A. Currently I am just handling Iowa, Nebraska, and Washington. 12 Q. The state of Washington? 13 A. That's correct. 14 Q. Not Kansas? 15 A. No. 16 Q. Do you know of any significant changes 17 that have occurred in terms of workers' 18 compensation in those states where Republicans 19 have taken over both chambers of the legislature 20 and the governorship? 21 A. No, I do not. 22 Q. In Nebraska there's only one section of 23 the legislature. 24 different from and better than Iowa's? 25 A. Are their statutory laws That's kind of an open-ended question. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 101 1 I mean, there's certain aspects of -- I can say 2 that I like better. 3 Q. In Nebraska, you mean? 4 A. Yes. 5 Q. What are the ones you like better? 6 A. I would say, you know, the one -- the 7 jurisdiction one certainly causes a lot of 8 difficulties for states like Tyson, who has 9 operations in multiple states. It's one of the 10 concerns or issues I have or I've had, with 11 Iowa -- I mean, having facilities in Nebraska 12 and Iowa. Under the statutory provision, if 13 14 the employee lives in Iowa, even though they're 15 working and get injured in Nebraska, they can 16 file a work comp claim in Iowa. 17 problems for us is there's much different 18 standards. Why that causes They start off in Nebraska, using 19 20 the benefits of the Nebraska statutes, and then 21 later on convert over to Iowa. 22 back and forth. 23 standpoint, it's very difficult for employers, 24 that EDI function we were talking about earlier, 25 which I don't understand -- it causes our And they can go From an administrative HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 102 (DEPOSITION OF TODD BERESFORD) 1 computer people a lot of work when they try to 2 switch over, back and forth. 3 certainly an issue. 4 5 Q. So that's You told me Iowa, Nebraska, and Washington. Those are your states? 6 A. Yes. 7 Q. Does Tyson have operations in South 8 9 Dakota? A. No production facilities. We have 10 our -- the old IBP world headquarters. 11 office is there. 12 production facilities. Just corporate staff. My No 13 Q. And then Dakota City is in Nebraska? 14 A. That's correct. 15 Q. Do you have operations in Kansas? 16 A. Yes, we do. 17 Q. Who oversees those operations? 18 A. A person out of our Springdale, 19 Arkansas office. 20 Q. And how about Missouri? 21 A. Also supervised by the Springdale, 22 Arkansas person. 23 Q. Illinois? 24 A. Arkansas. 25 Q. Minnesota? Let's do Wisconsin. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. (DEPOSITION OF TODD BERESFORD) 103 We have got, I think, one or two 2 facilities there. 3 state of Wisconsin. Again, I've never handled the 4 Q. Minnesota? 5 A. We don't currently have any operations 6 there. 7 Q. And North Dakota? 8 A. No current operations. 9 Q. Do you know the places that the 10 Arkansas office oversees in terms of workers' 11 compensation? 12 charge? 13 14 A. Is there a particular person in There is a claims manager who oversees the adjusters handling those states, yes. 15 Q. Is that the same job that you have? 16 A. Yes. 17 Q. And that's a person in Arkansas? 18 A. That's correct. 19 Q. Is that somebody that you interact with 20 on a regular basis? 21 A. Yes. 22 Q. Have you ever discussed with him or her 23 24 25 the changes in the laws, for example, in Kansas? A. In general. I've got a weekly staff call, and we discuss cases that come in from all HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 of our states. 2 overview, I guess. 3 Q. 104 And, you know, a high-level Not usually the particulars. Do you know whether or not Tysons 4 played any role in the changes in the Kansas law 5 in terms of the causation standard? 6 A. I do not. 7 Q. From the time the governor was elected 8 until the time the governor asked Chris Godfrey 9 to resign the first time, which was 10 December 29th, 2010, did you have any contact 11 with the governor, the lieutenant governor, or 12 any members of the staff? 13 A. No, I did not. 14 Q. Did you have any contact with John 15 16 Gilliland or Michael Ralston? A. Not that I recall. You know, if there 17 was an ABI event or anything -- I don't know if 18 there was anything where I would have seen them 19 during that time. 20 Q. When did Tysons leave ABI? 21 A. I don't know. I don't handle the -- 22 That's in our government relations group. 23 They're the ones who do dues and anything for 24 that organization, so -- 25 Q. Did you ask Governor Branstad directly HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 105 1 or indirectly during the transition period to 2 ask Chris Godfrey to resign? 3 A. No, I did not. 4 Q. Did you know that he was going to ask 5 Chris Godfrey to resign? 6 A. No, I did not. 7 Q. Exhibit 61, which is the one that's 8 right here -- And I only have one copy. 9 several copies with me. 10 I have They all have my handwriting all over them. At the bottom is a letter from 11 12 Gilliland to Ralston dated December 29th, and at 13 the top is an e-mail from Ralston to Boeyink 14 dated the same date. Is this something that you have 15 16 ever seen before? 17 A. I do not recall seeing this, no. 18 Q. Was someone besides you on the Workers' 19 Compensation Advisory Committee before you were 20 from IBP -- from Tysons? 21 22 23 24 25 A. Again, I think I answered that. that I recall. Q. Okay. Not If they were, I did not know. I'm sorry. Do you remember attending any meetings or hearings from December 29th, 2010, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 106 (DEPOSITION OF TODD BERESFORD) 1 until July 11th, 2011? July 11th is the next 2 time Chris met with the staff of the governor's 3 office and his salary was decreased. 4 the time frame I'm thinking of. 5 with anybody? So that's Did you meet 6 A. From the governor's staff? 7 Q. Yes. 8 A. No, I don't believe so. 9 Q. Did you attend a hearing or hearings of 10 the Re-Open Iowa for Business Tour? 11 A. No, I did not. 12 Q. You did not? 13 A. No, I did not. 14 Q. Do you know of anyone from Tysons who 16 A. Not to my knowledge, but -- 17 Q. Well, that cuts down a little bit. 15 did? Did you have any discussions with 18 19 anyone about lowering Chris Godfrey's salary at 20 any time? 21 A. No, I did not. 22 Q. Did you ever talk with Brenna Findley 23 about specific cases? 24 A. No, I did not. 25 Q. Did you ever talk to Jeff Boeyink about HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 107 specific cases? 2 A. No, I did not. 3 Q. Did you provide any information to 4 anyone about specific cases? 5 A. Yes. 6 Q. Did you ever provide any information to 7 anyone about specific cases prior to July 11th, 8 2011? 9 A. Nobody outside of Tyson. 10 Q. Well, when you say "outside of Tysons," 11 you're having these internal discussions. 12 there any way for them to get outside of Tysons? 13 I mean, would you be having a discussion with 14 the governmental relations people that might be 15 passed on to somebody, or do you know? 16 A. No. Is What I'm referring to is generally 17 we have a weekly staff call. 18 decisions that come in for that week, give a 19 general overview to my boss, as well as the 20 claims managers from the Arkansas office. 21 again, it's a pretty high-level overview, 22 just -- 23 Q. I discuss all my So Exhibit 104, that is an e-mail dated 24 July 19th that goes from Gilliland to Tim 25 Albrecht. And Tim Albrecht was the governor's HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 spokesperson during this time frame. 2 ever see this before? A. 3 4 108 (DEPOSITION OF TODD BERESFORD) Did you I don't recall seeing this document before. Q. 5 Do you agree with Mr. Gilliland's 6 characterization of Chris Godfrey as a, quote, 7 activist claimant's attorney, unquote? 8 A. You're referring to the e-mail? 9 Q. I am. Number 3. 10 A. Okay. Can you repeat the question? 11 Q. Yes. Do you agree with Mr. Gilliland's 12 13 characterization of Chris Godfrey as a, quote, 14 activist claimant's attorney, unquote? A. 15 I guess I don't know what he means by 16 "activist." 17 he means, so I don't really want to comment on 18 that, not knowing exactly what he's referring 19 to. 20 Q. I'm not going to speculate on what All right. Did you ever discuss with 21 Chris Godfrey or were you ever in any meetings 22 with Chris Godfrey about apportionment? 23 A. Not that I recall. 24 Q. Do you know what position, if any, 25 Chris Godfrey took with respect to HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) apportionment? 2 A. No, I don't. 3 Q. Do you know Kay Godfrey, Chris 4 109 Godfrey's mother? 5 A. I don't know her personally. 6 Q. Did you know that she was a plaintiff 7 in a lawsuit challenging the apportionment law? 8 A. Yes, I was aware of that. 9 Q. How did you know that? 10 A. Just, again, being in the -- Work comp 11 12 is a small world in Iowa. Q. Have you had any discussions with 13 anybody about whether or not Tom Vilsack pushed 14 Iris Post out of her job? 15 A. I have not. 16 Q. You don't know whether or not that's 17 18 19 20 true? A. I do not know the circumstances. I have no information or knowledge on that. Q. Do you believe that important decisions 21 were being delegated to deputy commissioners 22 that should have been handled by the 23 commissioner? 24 A. On certain circumstances, yes. 25 Q. Can you name any of those or what they HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) 110 were about? A. You know, one I think in particular is 3 the Caven decision, John Deere, I believe, where 4 Deputy Walshire, you know, essentially overruled 5 25 years of agency precedent and made a pretty 6 significant change in the law. 7 Q. Well, Mr. Beresford, what Deputy 8 Walshire did in that case was read the law. 9 Apparently for the first time; correct? 10 A. I wouldn't say that, no. 11 Q. What he did was follow a rule that had 12 been ignored for 25 years; correct? 13 A. No. 14 Q. Well, you say he changed the law. 15 That's what you just told me. 16 A. Um-hum. 17 Q. Do you really think that a deputy 18 workers' compensation commissioner can change 19 the law? 20 A. Can a deputy? 21 Q. Yes. 22 A. I certainly don't think it's in the 23 24 25 deputy's place to do that, no. Q. And do you know what happened with that decision? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 111 1 A. In terms of whether it was appealed? 2 Q. Yes. 3 A. I believe it was, yes. 4 Q. And then what happened? 5 A. I think it was affirmed. 6 Q. So whatever Deputy Walshire did was 7 agreed to be the correct interpretation of a 8 longstanding law that had long been ignored by 9 the agency by the Court of Appeals; right? 10 A. I would say they affirmed the decision. 11 Q. First of all, let's look at Exhibit 69. 12 What I have placed in front of you is a document 13 that you showed to me earlier as one that you 14 reviewed. 15 A. That's correct. 16 Q. And it goes from you to 17 . that someone that works for Tysons? A. 18 Yes, it is. MR. CLAUSEN: 19 Just for the 20 record, what he showed you starts on page 2 of 21 69. 22 MS. CONLIN: 23 MR. CLAUSEN: 24 25 Is Right. He did not review the first page of 69, the e-mails. Q. Okay. Do you want to take a moment to HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 112 (DEPOSITION OF TODD BERESFORD) review that, or are you familiar with it? 2 A. Okay. 3 Q. So on Monday, July 25th, which is 14 4 days after Commissioner Godfrey's salary has 5 been taken from the highest level allowed by law 6 to the lowest level allowed by law, you send to 7 an e-mail. 8 What does she do for Tysons, 9 ? 10 A. It is a male. 11 Q. Oh. 12 A. . At that time he was the . 13 14 15 Q. I think I'm probably not the first person to make that mistake, am I? So 16 sends it on to Debi 17 Durham, who sends it to Teresa Wahlert and 18 everybody else in the world, actually. 19 Boeyink gets a copy, the lieutenant governor 20 gets a copy, I think Brenna Findley gets a copy. 21 A lot of people get copies of what you wrote. 22 Tell me, first of all, how you Jeff 23 prepared the document that's attached, page 2. 24 It's Bates page PERFORMANCE26 through 25 PERFORMANCE39. How did you prepare that? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. (DEPOSITION OF TODD BERESFORD) I summarized a number of cases. 113 I 2 think some other members, I think, of the 3 Self-Insurers Association had provided some 4 examples of some cases that they were upset 5 about. 6 into this one document. And then I took those all and put it 7 Q. Did you read the cases? 8 A. I have read the cases. 9 Q. All of the cases that you cite? 10 A. At one time I think I have read -- I 11 have read most of them. 12 two -- I don't recall if I've read one or two of 13 them off the top of my head. 14 15 Q. There may be one or Did the summaries come to you from other people when they did not involve Tysons? 16 A. A couple of them did, yes. 17 Q. Can you tell me which ones came from 18 19 20 other people? A. I believe the Pauler versus Teen Challenge case. 21 Q. Who did that come to you from? 22 A. I believe that came from Pete Sand. 23 Q. Who? 24 A. Pete Sand. 25 Q. A private attorney? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. 114 (DEPOSITION OF TODD BERESFORD) Yes. 2 The Heiman case I don't recall. 3 Q. How did that come to you? 4 A. I think that might have came from one 5 of -- one of the law firms, outside law firms. 6 7 The Poula and, I think, Valdez case also came from an outside law firm. 8 Q. Poula came from who? 9 A. I don't recall which firm. It might 10 have been the Scheldrup Blades firm, but I am 11 not 100 percent sure. 12 Q. In your e-mail of July 25th you say you 13 put together this information in the attachment 14 for Governor Branstad; correct? 15 A. Um-hum. 16 Q. Is your answer yes, you did put this 17 together for Governor Branstad? 18 A. No. 19 Q. Who did you put it together for? 20 A. I was asked to put it together -- I 21 believe it came from our government relations -- 22 a request from our government relations to my 23 boss at the time. 24 Q. 25 A. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 1 cq (DEPOSITION OF TODD BERESFORD) Q. Why would you say, then, " 115 , I have 2 attached a copy of the information I put 3 together for Governor Branstad on Godfrey" if 4 that is not, in fact, what you did? 5 A. Because it was not directly for him. 6 They were going to provide it to him, but it was 7 not at his request. 8 9 Q. So he did not request the information. You got the request from your boss, but you put 10 it together for your boss to give to him. 11 that about correct? Is 12 A. That's correct. 13 Q. "Our lobbyist, Matt Eide, met with his 14 chief of staff last Friday." Did you speak with Matt Eide 15 16 17 about his meeting with Jeff Boeyink? A. I don't know if I spoke to him. It 18 probably came -- I think it came through our 19 government relations department. 20 me of it, I believe. 21 specifics. 22 Q. They informed I don't recall the Did you provide information directly or 23 indirectly to Matt Eide of the sort that you 24 provide in the attachment? 25 A. This is what was provided to Matt Eide. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 116 (DEPOSITION OF TODD BERESFORD) This. Q. Did you originally prepare this for Matt Eide, "this" meaning the attachment? A. The exhibit here, yes, I put together. 5 I believe our -- I believe it went to Matt Eide 6 via our government relations group. 7 Q. All right. So the first person you 8 gave this to, the attachment, was Matt Eide. 9 that a correct understanding? 10 A. Outside of Tyson, yes. 11 Q. And you then sent it on to , 12 who you knew would be sending it on to the 13 governor's office; correct? 14 15 16 A. No. Is I did not know he was going to send it to Debi Durham or anybody else. Q. Well, you say "I have attached a copy 17 of the information I put together for Governor 18 Branstad on Godfrey." 19 A. That's correct. 20 Q. How did you think it was going to get 21 22 23 to Governor Branstad? A. It was given to Matt Eide. Matt Eide then provided it to somebody. 24 Q. At the governor's office? 25 A. That's correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 117 (DEPOSITION OF TODD BERESFORD) Now I think I have it correct. You 2 attached it to this e-mail, but before you 3 attached it to this e-mail you physically handed 4 it or e-mailed it to Matt Eide; correct? A. 5 Somebody from Tyson did. I believe our 6 government relations -- I don't know who exactly 7 did. 8 yes, gave it to Matt. 9 10 I passed it on to somebody in Tyson who, Q. And you think he gave it to the governor's office? 11 A. Yes. 12 Q. Somehow, I assure you, it did get to 13 the governor's office. I'm a little more confused now. 14 15 That's my understanding. Is Debi Durham somebody that you know? 16 A. No. 17 Q. She sent it to Teresa Wahlert and also 18 to the lieutenant governor in this document. 19 think we have solved the mystery of how 20 everybody got this. 21 to the governor's office directly; right? 22 A. Yeah. I And it is through Matt Eide I was not aware that Noel 23 forwarded this to anybody. So it was my 24 understanding that Matt Eide was going to 25 deliver it. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 118 (DEPOSITION OF TODD BERESFORD) Q. Exhibit 165, I have one copy. In the 2 first part of this you mention that -- well, at 3 some point you mention that business people are 4 not stepping forward in support of the 5 governor's reduction of Chris Godfrey's salary. 6 Are you talking about ABI? 7 MR. CLAUSEN: I'm going to object 8 to the form of the question. 9 any document you've shown him says that. 10 MS. CONLIN: I don't know that Well, I'm pretty 11 sure it's right in here, but I can't find it 12 right now either. 13 Q. It's on the second page of the 14 document. PERFORMANCE27. 15 second full paragraph. 16 ABI's and other employers' lack of public 17 support for Governor Branstad's recent action in 18 reducing Commissioner Godfrey's salary in an 19 attempt to get him to resign as the Iowa 20 workers' compensation commissioner, a summary of 21 some of Godfrey's decisions is provided." 22 And it says "Given the That's where I got the idea. 23 A. Okay. 24 Q. Okay. 25 Beginning in the MR. CLAUSEN: Exhibit 69. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 119 1 A. I was looking at what you handed me. 2 Q. What I'm asking you is this kind of 3 article like 165, which says "Business group 4 says it did not encourage Branstad to fire the 5 commissioner" -- I know the date of this, but is 6 this the kind of thing that you're talking 7 about, Exhibit 165? 8 A. Is that what I'm talking about -- 9 Q. Talking about ABI and other employers' 10 11 lack of public support. A. I don't know if I -- I don't recall 12 seeing this specific article. 13 just don't recall. 14 is what I was referring to, no. 15 Q. I may have. I So I can't say this article Let's look at this. The first sentence 16 says "Workers' compensation costs in Iowa have 17 significantly increased since Chris Godfrey has 18 become the Iowa workers' compensation 19 commissioner." 20 A. Is that true or false? Our costs have risen. I think a lot of 21 self-insureds' costs have risen. 22 from other employers, all the other employers in 23 our self-insured association. 24 25 Q. What I'm told Well, costs have risen for everything in the economy generally; correct? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 120 (DEPOSITION OF TODD BERESFORD) A. I'm not going to make that general assumption. Q. Some things, yes. Well, what has been the rate of increase of medical care costs? 5 A. Medical care costs have increased. 6 Q. At about double the rate of other 7 costs; is that correct? 8 A. I don't know the answer to that, no. 9 Q. And you don't know whether or not 10 medical care costs account for about two-thirds 11 of all workers' compensation payments. 12 a correct understanding? 13 A. That's correct. 14 Q. It's a big amount. 15 Is that You just don't know how big? 16 A. It is a significant amount. 17 Q. And you stand by your statement that 18 workers' compensation costs in Iowa have 19 significantly increased since Chris Godfrey has 20 become the Iowa workers' compensation 21 commissioner; correct? 22 23 24 25 A. Yes. Our costs and, again, the self-insured members that I know. Q. And you meant to imply at least in that sentence that it was because Chris Godfrey was HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 121 1 the workers' compensation commissioner that 2 costs have increased; correct? 3 A. That was certainly a factor, yes. 4 Q. "Claimant's attorneys often 5 specifically mention 'Godfrey' during settlement 6 negotiations in an attempt to leverage their 7 claim." How do you know that? 8 A. 9 attorneys. 10 Q. I had been told it by some of our Who? MR. CLAUSEN: 11 12 object to that. 13 privilege. 15 privilege. 16 world. 17 That's attorney-client If you had a communication to -MS. CONLIN: 14 Well, I'm going to He has waived the He sent it to everybody in the MR. CLAUSEN: 18 that's a privilege waiver. 19 MS. CONLIN: I don't think Well, I think it is 20 a privilege waiver when he says "Claimant's 21 attorneys often specifically mention 'Godfrey' 22 during settlement negotiations in an attempt to 23 leverage their claim." 24 the source of that. 25 I think I get to know MR. CLAUSEN: I disagree, and I'm HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 122 (DEPOSITION OF TODD BERESFORD) 1 going to instruct him not to answer. 2 if it was a claimant attorney who spoke directly 3 to him, I'd tell him the same thing, because it 4 would be part of settlement negotiations or 5 mediation, all of which would be confidential. 6 And the claimant attorney who made the comment 7 is entitled to that confidentiality as well. 8 9 MS. CONLIN: And even It is my position that by sending this document publicly to the 10 governor's office and other people that he has 11 waived any privilege that he could claim, 12 whether it was during settlement negotiations or 13 in a private conversation. 14 I have the absolute right to know 15 who told him the information that he passed on 16 to the governor in an effort to support the 17 governor's lowering of Chris Godfrey's salary. 18 I understand that that does not persuade you. 19 MR. CLAUSEN: Thank you. I 20 sincerely appreciate your position. 21 position is as I stated. 22 revisit it at a later time, and I'll make 23 Mr. Beresford available by telephone for 24 follow-up if the judge tells us that I'm wrong. 25 MS. CONLIN: Our We can certainly Okay. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 123 (DEPOSITION OF TODD BERESFORD) Q. Did this actually come from Iris Post's 2 letter that you attached to the e-mail that you 3 sent to Chris in 2006? 4 A. Did what come from that? 5 Q. The idea that claimant's attorneys 6 often specifically mention Godfrey -- 7 A. No. 8 Q. It was something else? 9 A. Um-hum. 10 Q. Your answer is yes? 11 A. Yes. 12 Q. You go on to say "Unfortunately, 13 Godfrey's current term does not expire until 14 2015, and he has made it known that he's not 15 going to resign and is hoping that a new 16 governor will be in office at that time his term 17 expires and he will be reappointed." To whom did he make that known? 18 19 A. I don't recall right now. 20 information that we had received. 21 where it came from at the time. 22 Q. It was I don't know I don't recall. What did you do to check the accuracy 23 of the assertions that you made in this 24 document? 25 A. I guess you're going to have to go HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 124 (DEPOSITION OF TODD BERESFORD) through each one you want clarified. Q. All right. We don't know where you got 3 the idea that he was not going to resign and is 4 hoping that a new governor will reappoint him; 5 is that right? 6 A. Yes. I don't know where that was 7 conveyed. 8 at the time. 9 just don't recall. 10 11 12 13 Q. I don't recall -- General information I believe one of the members. I You think he told one of the members of the Iowa Self-Insurers Association this? A. Somebody had heard that, yes. I don't recall. 14 Q. Was it like a rumor? 15 A. I don't recall the specific details of 16 17 it at this time. Q. "The majority of all" -- I have skipped 18 down. 19 agency are 'issues of fact' which are decided by 20 the trier of fact (ultimately the 21 commissioner)." 22 issues that are common in workers' comp cases. 23 "The majority of all cases decided by the And you go on to set out the And you say "Accordingly, nearly 24 all cases coming out of the agency are not going 25 to have the possibility of being reversing at HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 125 (DEPOSITION OF TODD BERESFORD) 1 the district court or appellate levels even 2 though the awards are excessive or contrary to 3 most of the evidence in the record." 4 Do you know how many cases are 5 reversed by the district court or the Court of 6 Appeals? 7 8 A. I don't have an exact number. I would say it's very rare. 9 Q. It's very rare? 10 A. Unless it's a -- In particular we're 11 talking about factual issues here. 12 issue of law, that's about the only time in a 13 work comp case that you're going to see anything 14 disturbed on appeal. 15 Q. If it's an How many cases are even before the 16 commissioner? Do you know what percentage of 17 cases are appealed to the commissioner? 18 A. I do not have the numbers, no. 19 Q. You told me earlier it was more than 50 20 21 percent. A. I said I don't know the general 22 numbers. 23 say at least in my experience 50 percent of them 24 get appealed. 25 Q. I would say -- Of our cases, I would We have this IME and the claimant's HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 126 1 choice of physician. 2 Iowa, the employer has to pay for an IME with 3 the claimant's choice of physician, so there is 4 no out-of-pocket cost for the employee to obtain 5 such a report, and they will find an IME doctor 6 to give them the necessary opinion in every 7 case." 8 You say "Moreover, in Is that true? 9 A. I believe in about every case, yes. 10 Q. This doesn't say "about every case." 11 It says "in every case." 12 statement? 13 A. Is that a correct I am sure at one time there has been an 14 IME physician who might not have given a 15 causation opinion. 16 Q. "The defendant may have ten more 17 credible medical opinions supporting their 18 position." 19 credible in the opinion of the defendant or the 20 defendant's lawyer or both; correct? And those opinions would be more 21 A. Yes. 22 Q. "But the commissioner is the trier of 23 fact and is free to accept the one less credible 24 medical opinion that claimant has obtained 25 should he choose so (and frequently does)." HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 127 (DEPOSITION OF TODD BERESFORD) 1 Is that a true statement? 2 A. Yes, I believe it is. 3 Q. And what you would do to fix that would 4 be what? A. 5 Well, as you mentioned earlier, it's a 6 statutory provision, so it would need to be 7 changed statutorily somehow. Otherwise, in my opinion, at the 8 9 time -- I think the reason things got -- started 10 going the wrong way is, you know, some of these 11 deputies and things that -- I don't think 12 decisions were reigned in. 13 being inflated. 14 commissioner, I think a tone should have been 15 set by the commissioner. I think they started And in my opinion, as the The ones that get appealed -- 16 17 again, I talked earlier about I think in Byron 18 Orton's days they had general ranges for, say, a 19 shoulder surgery that they come back to work for 20 you. 21 And there was some predictability. If there's a reason to go outside 22 those guidelines, you know, I think the deputy 23 is going to put that in the decision. 24 they need to explain why they're either going 25 lower than that or higher than that. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I think cq 128 (DEPOSITION OF TODD BERESFORD) 1 And there may very well be a 2 reason, but it needs to be spelled out in those 3 decisions. 4 the case a lot of times. 5 There was no consistency. 6 know, out of control. 7 was hard for anybody, both the claimant's 8 attorneys and the defense attorneys, to try to 9 value some of these cases. 10 But I don't think, you know, that's I think they got, you And I think, you know, it And that's not the intention of 11 the Work Comp Act. 12 simple act. 13 I think they just -- Q. It's supposed to be a fairly And I don't think it became that. What statute or Supreme Court opinion 14 allows the workers' compensation commissioner to 15 set ranges in cases that the deputy has to 16 follow? 17 18 19 A. I don't think there's a specific statute that does that. Q. I don't think so either. But you think 20 that nonetheless -- First of all, you think that 21 Byron Orton did this; correct? 22 A. I don't have direct knowledge of that. 23 I have been told that by others, I think, over 24 the years, that he used to have some kind of a 25 staff meeting and they used to talk about cases HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 (DEPOSITION OF TODD BERESFORD) 129 and have general parameters. Q. And you're talking about industrial disability, I assume? 4 A. Yes. 5 Q. Injuries that occur to certain limbs 6 are scheduled; correct? 7 A. That's correct. 8 Q. But you are telling me that you think 9 that Chris Godfrey as the workers' compensation 10 commissioner could have called deputies in for a 11 meeting and told them what the range was for 12 specific injuries in terms of industrial 13 disability. 14 your position? Is that a correct understanding of 15 A. Do I think he could have done that? 16 Q. Yes. 17 A. Yes. 18 Q. You think he could have done that 19 despite the fact that there is no law that 20 permits that; correct? 21 A. No. 22 Q. There is no Supreme Court decision that 23 even hints that he could do such a thing; 24 correct? 25 A. Not that I'm aware of. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 (DEPOSITION OF TODD BERESFORD) Q. 130 You think that he could go off on his own and do that; right? A. I don't think it's going off on his 4 own, no. 5 agency, he's ultimately responsible for the 6 agency. 7 Q. I think it's -- As the head of the He's also responsible to the Supreme 8 Court and to the code of the state of Iowa, is 9 he not? 10 A. Yes, he is. 11 Q. He's also responsible for deciding 12 cases based on a preponderance of the evidence; 13 correct? 14 A. No. 15 Q. Really? 16 A. I think he's got a de novo standard of 17 18 What is his standard of proof? review as the commissioner. Q. Yes, he does have a standard of review 19 that's de novo, but when he decides the cases, 20 he has to rely on a preponderance of the 21 evidence as the burden of proof; correct? 22 A. Statutorily, yes. 23 Q. Well, do you think it would be 24 appropriate for any head of any agency to rely 25 on something other than the statute that creates HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 131 the agency? 2 A. I'm not understanding the question. 3 Q. You're telling me that you think that 4 Chris Godfrey as the workers' compensation 5 commissioner could and should have established 6 ranges for deputies that needed to be followed 7 for industrial disability; correct? 8 9 10 11 12 MR. CLAUSEN: I'll object. That's a misstatement of what he said. Q. Well, that's how I understood it. If I am wrong, please tell me. A. I think, yes -- I think there should 13 have been more consistency. 14 as the head of the agency, he should set the 15 tone and the commissioner should set the tone. 16 And yes, I think there should be some 17 consistency between cases. 18 Q. I think that's -- And what I heard you say to me is you 19 set the tone and you establish consistency by 20 establishing ranges like you have heard that 21 Byron Orton did; correct? 22 23 24 25 A. That is my opinion, yes, that that's -- that's what is needed. Q. Do you think Joe Cortese is going to do that? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 132 1 A. I don't know yet. 2 Q. Are you going to tell him that's what 3 4 5 6 he ought to do? A. If I get the opportunity, I would like to tell him that, yes. Q. Okay. Does the workers' compensation 7 commissioner or any deputy have the ability to 8 set medical care costs? 9 A. No. 10 Q. So if medical care costs do, in fact, 11 account for 65 cents out of every workers' 12 compensation dollar, then 65 percent of the 13 costs of workers' compensation are not in the 14 discretion in any way of the Workers' 15 Compensation Division; correct? 16 17 18 19 20 21 A. Not in the discretion, but there's an impact, yes. Q. But how would any Workers' Compensation Division employee impact that? A. It would be the deputy or commissioner who can impact that. 22 Q. How? 23 A. One big thing is compensability 24 25 determinations. Q. Oh. In other words, find that the HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 133 1 injury did not arise out of and in the course of 2 the employment? 3 4 5 A. Find it did arise out of and in the course of, yes. Q. I'm sorry. If the deputy finds that a 6 worker is injured in the course and scope of his 7 or her employment, then the medical care costs, 8 which are determined by the employer, in terms 9 of what physician or medical care person is 10 selected, those are really more within the 11 purview of the employer than the commission; 12 correct? 13 14 15 A. I would say that medical provider at that time, yes. Q. I might not be making myself clear, 16 Mr. Beresford. 17 some costs associated with workers' compensation 18 that are not even in the discretion of the 19 Workers' Compensation Division; isn't that true? 20 A. What I'm getting at is there are The ultimate cost of the treatment, I 21 would agree with you, is not within the 22 discretion of the -- the agency. 23 Q. Okay. What the commission can deal 24 with are things like the cost of the IME. 25 That's what you're talking about, Larry HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 134 Walshire's decision? 2 A. Correct. That is one of the areas. 3 Q. You go on to say "A well-regarded 4 mediator in Iowa recently commented that he is 5 mediating much more Iowa workers' compensation 6 cases since Godfrey has become the IWCC and the 7 same type of cases are now routinely settling 8 for 30,000 to 40,000 more than similar cases 9 four or five years ago." 10 What mediator? 11 MR. CLAUSEN: 12 that, can I ask him some voir dire questions? 13 MS. CONLIN: 16 17 Sure. VOIR DIRE EXAMINATION 14 15 Before you answer BY MR. CLAUSEN: Q. Was this part of a mediation that you participated in? 18 A. Yes, it was. 19 Q. Was the mediator communicating to you 20 as part of that mediation? 21 A. Yes, he was. 22 Q. And this communication was part of 23 24 25 settlement negotiations in that case? A. Yes, it was. MR. CLAUSEN: I'll object to the HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 question. 2 and privileged under Iowa law. 3 in a mediation are confidential. 4 instruct him not to answer. 135 Mediations are statutorily protected 5 MS. CONLIN: Communications And I'll I understand your 6 objection, and I make the same record I did 7 before. 8 When Mr. Beresford writes this 9 tome for the use of the governor in defending 10 decisions that he's made, he has waived any 11 privilege that he may have had. DIRECT EXAMINATION - CONTINUED 12 13 14 BY MS. CONLIN: Q. Let me ask you some questions about the 15 mediation that this occurred in. In what 16 capacity were you appearing in that mediation? 17 A. A representative of Tyson. 18 Q. As an attorney? 19 A. No, I was not representing us as an 20 attorney. 21 Q. Do you go to all mediations? 22 A. A fair number. 23 Q. And I don't quite understand your 24 capacity as the head of the Workers' 25 Compensation Division. Is that why you go? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 (DEPOSITION OF TODD BERESFORD) A. As the head of the fresh meats work comp department, yes. Q. And was there an attorney representing Tysons at that mediation? 5 A. Yes, there was. 6 Q. Do you remember the name of the 7 136 mediator? 8 A. Yes, I do. 9 Q. Is it someone with whom you deal on a 10 regular basis? 11 A. Yes. 12 Q. How many mediations has this particular 13 mediator done? 14 A. For Tyson or -- 15 Q. For Tyson. 16 A. A large number. 17 Probably, I would say, at least 10 to 15 a year. 18 Q. Was the mediator an attorney? 19 A. Yes. 20 Q. Is the mediator a defense attorney? 21 A. No. 22 Q. Is the mediator a claimant's attorney? 23 A. He handles claimant's cases, yes. 24 Q. Cases on behalf of workers? 25 A. Injured workers, yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 Q. (DEPOSITION OF TODD BERESFORD) 137 Is it true that no case ever is required to be settled? 3 A. Excuse me? 4 Q. Let me try again. Tyson always has the discretion 5 6 as to whether or not to settle a particular 7 workers' compensation claim; correct? 8 A. Obviously. Correct. 9 Q. Your complaint against 10 was, in fact, he was trying to force you to 11 settle; right? 12 A. Correct. 13 Q. You go on to say "Many employers and 14 carriers are attempting to settle as many of 15 their claims as possible rather than proceeding 16 to hearing before the IWCC because they have no 17 confidence in the current Iowa workers' 18 compensation system." Is that a true statement? 19 A. Yes, it is, from the people I talked 22 Q. Have you done any statistics? 23 A. I did not do specific statistics, no. 24 Q. This is also rumor? 25 A. No. 20 21 to. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 138 (DEPOSITION OF TODD BERESFORD) 1 Q. What is it? 2 A. It is all of our members of our 3 association, various members, it was talked 4 about at meetings, and that was the general 5 proposition of the Self-Insurers Association 6 members. 7 Q. When you say "settle as many of their 8 claims as possible rather than proceeding to 9 hearing before the IWCC," the IWCC means Iowa 10 workers' compensation commissioner; correct? 11 A. Yeah. 12 Q. The Iowa workers' compensation 13 That's correct. commissioner does not hear cases; correct? 14 A. Meaning the agency. 15 Q. What? 16 A. The IW -- I'm referring to the general 17 18 19 agency. Q. Yes. Yes. The deputies hear the cases. Deputies hear the cases. The commissioner does not. 20 A. That's correct. 21 Q. So we would expect to see the number of 22 cases taken to the agency decrease based on what 23 you have told the governor; correct? 24 25 A. I think the members of our association have tried less cases, yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 Q. But you can't confirm that? 2 A. Just from what I'm told, personal 3 4 139 experience. Q. You go on to tell the governor "Several 5 judges and courts have made comments about the 6 commissioner in these decisions questioning his 7 impartiality. 8 Iowa Court of Appeals case described in more 9 detail below where the Court states 'it is clear See Sandberg versus Rubbermaid, 10 to the Court that he (and the commissioner by 11 summarily affirming the decision of the deputy) 12 is attempting to extend existing law' and also 13 Rizvic versus Beef Products where Judge Huppert 14 succinctly stated what most employers feel about 15 Godfrey and the current agency, 'Such a 16 gratuitous characterization indicates to this 17 Court that the commissioner in this instance 18 overstepped his role as an impartial arbiter of 19 the facts and became, in essence, an advocate 20 for the respondent's position.'" 21 By these statements you mean to 22 imply that the commissioner was condemned by the 23 Court in the Rizvic case; right? 24 25 A. Chris Godfrey. I am just putting what the district court judge said. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 140 (DEPOSITION OF TODD BERESFORD) Q. Well, you say "what most employers feel 2 about Godfrey," and then you quote from the 3 Rizvic district court decision; correct? 4 5 6 7 A. I think that was the general consensus of employers about the agency at that time, yes. Q. This decision was never made or touched by Chris Godfrey; isn't that true? 8 A. 9 I'm right. 10 11 12 13 I think he summarily affirmed it, if I don't think he actually issued the decision, though. Q. I'm talking about Rizvic. You quote from Rizvic. A. Is that Sandberg? I don't recall which 14 one off the top of my head right now. 15 looked at the cases in a long time. 16 Q. I haven't So you think that the district court 17 was referring to Chris Godfrey in the Rizvic 18 case; is that correct? 19 A. I think he was referring to the agency 20 in general at that time, whoever issued the 21 decision. 22 Q. No. He refers to the commissioner. 23 And he says that he's not an impartial arbiter 24 and was, in fact, an advocate for the 25 respondent's position. That's what he says. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 5 6 7 A. 141 (DEPOSITION OF TODD BERESFORD) Well, that's what the district court judge says, yes. Q. And you said to the governor that the commissioner was Chris Godfrey; right? A. Chris Godfrey was the commissioner at the time, yes. Q. And you meant to imply that what the 8 district court said about the commissioner was, 9 in fact, said about Chris Godfrey; correct? 10 11 A. I'm not implying anything. I'm saying that's what the district court judge said. 12 Q. About Chris Godfrey? 13 A. About the commissioner. 14 Q. Chris Godfrey? 15 A. Chris Godfrey was the commissioner at 16 17 18 the time, yes. Q. We've already discussed the next sentence about public support. (Exhibit 178 was marked for 19 identification.) 20 21 22 Q. The first case that you cite is Ernst versus Lennox Manufacturing Company; correct? 23 A. Correct. 24 Q. Did you personally read these 25 decisions? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 142 (DEPOSITION OF TODD BERESFORD) A. I have at one time. I've read Ernst, Q. I'll do all of them at the same time. yes. 4 I don't think we need to do this. 5 nunc pro tunc order changing the date which 6 doesn't have anything to do with the merits. 7 We'll just skip that one. 8 Defendants' Deposition 111. 9 There's a The next one is the I'll just give you this one. 10 That's the appellate decision to the 11 commissioner. 12 fitness center on the premises; correct? You say that this is about a 13 A. Yes. 14 Q. Back in the 1940s the Iowa Supreme 15 Court decided the first case about recreational 16 activities. 17 18 19 A. Are you aware of that? I don't recall if I'm aware of that particular case or not. Q. There are Supreme Court cases that deal 20 with the issue of when a worker is injured in 21 the course of recreational activities; right? 22 A. I'm sure there are, yes. 23 Q. Are you aware that there are many 24 states that preclude coverage of workers' 25 compensation for recreational activities? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 Are cq 1 2 3 4 5 (DEPOSITION OF TODD BERESFORD) 143 you aware of that? A. Different states. Every state has their own laws, yes. Q. Iowa is not one of those states; correct? 6 A. That what? 7 Q. Iowa is not a state that precludes 8 workers' comp coverage for people who are 9 injured in the course of recreational 10 activities; right? 11 A. They are not covered? 12 Q. No. Iowa workers' compensation law can 13 cover people who are injured in the course of 14 recreational activities; right? 15 A. Under certain circumstances, yes. 16 Q. Well, what are those circumstances? 17 A. It's going to be a different situation. 18 19 It's going to be a factual situation. Q. Well, in this case, you called this 20 case to the attention of the governor; correct? 21 Ernst versus -- 22 A. Yes. That's correct. 23 Q. You say "Ernst versus Young," but I'm 24 not sure that's the actual name of the case. 25 looks to be Ernst versus Lennox Manufacturing HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 It cq 1 144 (DEPOSITION OF TODD BERESFORD) Company. 2 A. Yes. It looks like a typo. 3 Q. Whenever the commissioner is reversed, 4 does that mean to you that the commissioner was 5 biased? 6 A. Not necessarily. 7 Q. Does that mean to you that the 8 commissioner was wrong in terms of the facts? 9 A. Not necessarily. 10 Q. I don't know about you, but as an 11 attorney, I certainly have courts make decisions 12 that are clearly wrong against me. 13 like it, but I recognize that they can do that 14 and that it isn't meant against me personally. And I never Do you agree that, in fact, when 15 16 judges reverse the commissioner, the 17 commissioner reverses deputies, the Court of 18 Appeals reverses everybody, that that does not 19 mean that the person is an incompetent fool? 20 A. I would agree with that statement. 21 Q. It also doesn't mean that the person 22 who is reversed by a higher level judicial 23 opinion is biased in any way, does it? 24 A. I hope that's the case. 25 Q. Well, we all do. In fact, that would HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 145 not be the usual case. 2 A. Again, I would hope not. 3 Q. And you have set out for the governor 4 cases where you think that Chris Godfrey was 5 biased; right? 6 A. In this particular case, this was one 7 of our members, Lennox, and we -- they felt, I 8 think, it was an expansion of the current law. 9 It was really expanding on, you know, what had 10 11 12 been out there before. Q. Well, do you know that Lennox never appealed? 13 A. That's fine. 14 Q. Well, it's not really fine, because if 15 you say and you told the governor that this was 16 evidence of Chris Godfrey's bias because he 17 extended the law, then if Lennox had appealed 18 and, in fact, the commissioner had extended the 19 law, that is exactly what district courts and 20 appellate courts are for; right? 21 A. There's a lot of decisions that go into 22 appealing a case. I am not going to speak on 23 the decision of this company. 24 So I don't know what factors went into their 25 decision not to appeal this to the district It was not Tyson. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 court. 2 Q. (DEPOSITION OF TODD BERESFORD) Do you know whether or not Supreme 3 Court cases are cited? 4 see. 5 A. 6 cited. 7 Q. 8 146 You can look there and Yes, there are Supreme Court cases Okay. The commissioner and deputies are bound by Supreme Court precedent; correct? 9 A. They're supposed to be, yes. 10 Q. And do you have any evidence that they 11 misinterpreted or extended the law other than 12 what Lennox told you? 13 14 15 16 17 A. I think it's -- Yeah, I think it's stretching the law at that point. Q. Tell me why you think it's stretching the law. A. In this case my opinion is that the 18 particular circumstances, you know, should not 19 be covered under the Workers' Compensation Act. 20 Q. Even if the law says it must be covered 21 and Lennox didn't appeal, they didn't take it to 22 a Court that could make a definitive decision 23 about whether or not it was extending the law; 24 right? 25 A. I am not going to speak to Lennox. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq (DEPOSITION OF TODD BERESFORD) 147 1 already said that. 2 opinion is yes, it was an expansion of the law. 3 Q. You asked my opinion. My You were in a position to know the 4 rulings of Iris Post when she was a 5 commissioner; correct? 6 A. Yes. 7 Q. Do you recall a case where she found 8 compensable a broken leg that a worker sustained 9 in a softball game sponsored by UPS? 10 11 A. Yes. I believe I remember the case. Not all the facts. I know of it. 12 Q. So how did Godfrey extend the law? 13 A. The limited -- 14 Q. Or maybe Iris Post extended the law. 15 A. The limited facts, you know, that I 16 remember of that case -- I don't know if I've 17 actually read that case. 18 have been some pressure put on or more 19 encouragement for them to attend that event. 20 wasn't necessarily voluntary participation in 21 the event. I thought there may But again, I don't recall that 22 23 case. 24 years, so -- if I've ever read it. 25 Q. I haven't read that case in years and And you do believe you read the Ernst HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 It cq 1 (DEPOSITION OF TODD BERESFORD) 148 case? 2 A. At the time, yes. 3 Q. And you do believe that that is some 4 evidence, maybe definitive evidence, that Chris 5 Godfrey extended the law; correct? 6 A. In my opinion, yes. 7 Q. We don't have any definitive opinion on 8 that because Lennox chose not to appeal it; 9 correct? 10 11 12 A. There is nothing further that I'm aware of after his appeal decision, no. Q. Neither am I. (Exhibit 179 was marked for 13 identification.) 14 15 Q. The next case you cite is -- you cite 16 it as Gazette Communications versus Powell. 17 Here's the arbitration decision, which I have 18 marked 179. (Exhibit 180 was marked for 19 identification.) 20 21 22 Q. will mark 180. (Exhibit 181 was marked for 23 identification.) 24 25 Here is the appeal decision, which I Q. Here is the district court decision, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 149 (DEPOSITION OF TODD BERESFORD) which I will mark 181. 2 This is one of the cases that you 3 cited in trying to assist Governor Branstad to 4 defend his lowering of Chris Godfrey's salary; 5 correct? 6 Oh, sorry. 7 Correct? 8 A. No. 9 Q. Pardon me? 10 A. I think that's a miss -- I would not 11 agree with your characterization of that, no. 12 Q. Well, why did you write this? 13 A. I at no time had any knowledge that his 14 15 salary was going to be reduced. Q. This was after. You said -- You did not write this 16 tome to the governor's office until at least a 17 week after the salary was reduced. 18 longer. 19 July 25th. 20 Everybody in the state of Iowa knew that his 21 salary had been reduced, so -- 23 24 25 The e-mail that sent it came on His salary was lowered on July 11th. MR. CLAUSEN: 22 second. Probably Wait. Hold on a That's not a question. MS. CONLIN: No, it's not, but I'm going to ask one. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 150 So how in the world did you avoid 2 knowing that, when it was specifically said on 3 page 2 that the reason you were writing it was 4 because other employers had not stepped up? 5 A. We were talking -- I was referring to 6 the general workers' compensation system, the 7 issues we were facing, some of the issues we had 8 talked about, you know, during the campaign, 9 those stops he made that we talked about 10 earlier. That's what I was referring to. At no time -- I think you 11 12 characterized -- Unless I misunderstood the 13 question that you initially said, I thought you 14 said that I had something to do with or conveyed 15 something about his reduction in salary. 16 17 18 Q. No. No. I'm sorry. What I said or what I meant to say was that -A. Then I apologize. I thought the way 19 you -- you implied that I had something to do 20 with that or had knowledge of -- 21 Q. No. I'm talking about the sentence 22 "Given the ABI's and the other employers' lack 23 of public support for Governor Branstad's recent 24 action in reducing Commissioner Godfrey's salary 25 in attempt to get him to resign as the Iowa HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 151 (DEPOSITION OF TODD BERESFORD) 1 workers' compensation commissioner, a summary of 2 some of his decisions is provided." 3 I was talking about. 4 A. Okay. 5 Q. All right. 6 7 That's what So where are we? Now, here with go with the Powell case. 8 A. Okay. 9 Q. And you describe the Powell case as -- 10 again, this is a recreational activity; correct? 11 A. Yes. 12 Q. We could solve all the problems that 13 you perceived in the Ernst case and in the 14 Gazette case and in some others that you 15 mentioned if, in fact, the Iowa legislature 16 would pass a law that precluded coverage for 17 recreational activities; correct? 18 A. That would be one solution, yes. 19 Q. They haven't done that? 20 A. No. 21 Q. Have you suggested that they do that? 22 A. There's a lot of suggestions that we 23 have for the legislature to improve the workers' 24 compensation system. 25 makeup, it is not going to be feasible. But given the current HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 It's cq 1 2 152 (DEPOSITION OF TODD BERESFORD) not going to happen. Q. Well, that has not always been true. 3 And as best I can determine, coverage of 4 recreational activities has been included under 5 the Iowa workers' compensation law since the 6 1940s. 7 would have been possible to change the law, 8 don't you think? 9 And at some point along the way, it A. I think they're very fact-specific 10 question -- or fact-specific cases. 11 to ask me specifically about my opinion on this 12 case, I'd be glad to share it with you. 13 14 Q. If you want Well, this case, you say, is about a bowling tournament; correct? 15 A. Um-hum. 16 Q. Your answer is yes? MR. CLAUSEN: 17 Yes? 18 A. Yes. 19 Q. And at the arbitration level Clair 20 Cramer decided that the employee was not 21 covered. 22 A. 23 Cramer. 24 know -- 25 Q. Do you remember that? I'm assuming you're right by Clair I don't remember the deputy, but I Look at it. Look at Exhibit 179. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 Look cq 1 (DEPOSITION OF TODD BERESFORD) at the last page. 2 A. I don't think I got 179. 3 Q. I tried to give you everything. 4 5 6 7 8 153 There's a couple more. A. Yes, it was issued, it looks like, by Clair Cramer. Q. All right. And so then you say that there was an appeal decision; correct? 9 A. Correct. 10 Q. And Commissioner Godfrey issued an 11 appeal decision reversing the arbitration 12 decision and finding the bowling incident did 13 arise in the course of employment and awarded 14 significant benefits; correct? 15 A. Correct. 16 Q. You have that in front of you as 180. 17 A. Yes, I do. 18 Q. And then it was appealed first to the 19 district court, which is 181. A decision by 20 Judge Blane. 21 deputy and so does the Court of Appeals, which 22 is Defendants' Deposition 113. 23 copies of all of those. And the district court upholds the 24 A. I think I just have -- 25 Q. All of those? I gave you HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 154 (DEPOSITION OF TODD BERESFORD) 1 THE WITNESS: Do you have them? 2 MR. CLAUSEN: I have 113. 3 One copy of 113. 4 Q. That's all I have, is one copy for you. 5 It's Defendants' 113. 6 court. 7 A. Okay. Q. If you will look at Exhibit 180, you 8 9 Yes. They affirm the district I've got 113 in front of me. 10 will see that in his opinion the workers' 11 compensation commissioner cites several Supreme 12 Court cases; correct? 13 Court of Appeals. And also some from the 14 A. Correct. 15 Q. And the district court says he's wrong; 16 right? 17 A. Correct. 18 Q. And the Court of Appeals agrees with They say that's wrong? 19 the district court that Chris Godfrey was wrong; 20 right? 21 A. That's correct. 22 Q. Then there is a decision on remand. 23 The case is remanded for a decision. And 24 Mr. Godfrey decided that remand decision. 25 at that, if you would. I've marked it 182. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 Look cq 1 (Exhibit 182 was marked for 2 3 155 (DEPOSITION OF TODD BERESFORD) identification.) Q. Did you look at all of these various 4 decisions before you wrote this letter? 5 wouldn't have looked at the remand decision, 6 because it comes after you wrote the letter, but 7 the district court and the Court of Appeals come 8 before. 9 A. I think I saw the Court of Appeals 10 decision by then. 11 Court of Appeals decision. 12 You Q. Yes, I believe I saw the And then on remand the commissioner 13 issues a decision in conformity with the Court 14 of Appeals and finds that the claimant is not 15 entitled to additional compensation; correct? 16 17 18 A. That's what I'm looking at now, correct. Q. And you included this in your writing 19 to the governor to show that the commissioner 20 was unfair to employers; is that correct? 21 A. I would say it was a troubling decision 22 from an employer's perspective. You know, we're 23 out there trying, you know, to do good things 24 for your employees. 25 wellness and well-being, like in the other case You're trying to promote HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 156 (DEPOSITION OF TODD BERESFORD) you talked about earlier. 2 We have talked about opening 3 possibly wellness centers, things like that. 4 Decisions like that, I think, have a negative 5 impact on employers trying to do a good thing 6 for employees. 7 that's a perfect example of that. 8 9 And I think this is another case I don't think that is what the Work Comp Act was intended to cover. I think it 10 was your work-related injuries that happen at 11 work. 12 goodwill, in my opinion, in trying to promote, 13 you know, events outside of work for your 14 employers, you know, is not something that -- 15 that should be covered under the act. These other things, in this case more 16 And I think it discourages 17 employers from doing that. 18 employers, yeah, I heard from were discouraged 19 by that. 20 a wellness center, you know, on your premises if 21 now you've got that liability out there for 22 people? 23 picnics? 24 is from the employers and myself, so -- 25 Q. So I think a lot of You know, are you going to want to put Are you going to want them to do And I think that's where the concern Well, there are some pretty clear HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 157 1 parameters set out by the Supreme Court and the 2 Court of Appeals as to what is covered and what 3 is not. 4 5 Are you familiar with the Lindaman case, L-I-N-D-A-M-A-N? 6 7 I am not at this hand -- at this time, Q. How about Briar Cliff versus Compaolo, no. 8 9 A. C-O-M-P-A-O-L-O? A. 10 I think I've heard of the case. I 11 don't recall it right off the top of my head, 12 no. 13 14 Q. I guess I can't discuss the cases with you if you don't recall them. 15 The next case you mentioned is 16 Pauler versus Teen Challenge of the Midlands. 17 MR. CLAUSEN: When you're done 18 with Pauler, it might be a good time for a 19 break. We've been going an hour and 20 minutes. 20 MS. CONLIN: 21 (Exhibit 183 was marked for identification.) 22 23 24 25 All right. Q. 183 is an arbitration decision. (Exhibit 184 was marked for identification.) HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 184 is the appeal decision. 2 (Exhibit 185 was marked for 3 4 identification.) Q. 185 is the decision on judicial review. 5 (Exhibit 186 was marked for 6 7 8 158 identification.) Q. And 186 is the Court of Appeals decision. 9 Okay. You mention this case as 10 an example of Chris Godfrey's bias against 11 employers. 12 A. Is that a correct understanding? I would say a concerning case, yes, 13 that was brought by a member of the current 14 agency. 15 Q. In your discussion of this case you 16 tell the governor that this is a faith-based 17 organization in Colfax. 18 performing chores, Claimant fell on the TC 19 property and was injured." Is that a true statement? 20 21 22 23 24 25 And you say "While A. That was provided by the attorney who handled that case. Q. And that's -- Do you think that Mr. Pauler was performing chores when he fell? A. Again, that was provided to me by the HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 159 attorney who handled the case, so -- 2 3 (DEPOSITION OF TODD BERESFORD) Q. You didn't ever look at the case yourself? 4 A. I believe I read the case. 5 Q. And you still said that the claimant 6 was performing chores? 7 A. 8 this time. 9 probably. 10 Q. I don't recall what the case said at I haven't reviewed it in four years, Well, you can review it at your 11 leisure, but, in fact, the claimant, who had had 12 experience in construction work prior to coming 13 to the faith-based recovery center, was not 14 performing chores. 15 the second floor of the campus housing. 16 17 He was laying a subfloor on Does that change your mind in any way? 18 A. No. 19 Q. So you think it's perfectly okay for a 20 person who falls a story and a half or so to the 21 ground while working on construction on behalf 22 of the employer not to be covered? 23 24 25 A. I don't think he was acting as an employee at the time. Q. So yes. Well, he was working on construction at HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 the time, not doing chores. 2 that? 3 4 5 A. 160 Were you aware of You can phrase it any way you want. Yes, if you want to phrase it as he was -Q. Well, what would you consider a chore? 6 I would think of things like washing dishes, 7 sweeping the floor, that kind of stuff. 8 9 A. I don't think he was there as an employee of that particular organization. He 10 may have been doing something for them at the 11 time. 12 employee. 13 In my opinion, that doesn't make him an Q. Well, I'm not arguing with you about 14 whether or not he's an employee. 15 with you about whether or not he was, quote, 16 doing chores, which is what you told the 17 governor. 18 A. Again, I believe that was -- I did not 19 write that. 20 attorney, so -- 21 Q. I'm arguing I believe that came from the You do write it. You write it in 22 Exhibit 69, and you have it handed to the 23 governor; right? 24 A. That is correct. 25 Q. So eventually the commissioner's HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 161 1 decision is reversed by the district court and 2 the Court of Appeals affirms the district court; 3 correct? 4 A. Correct. 5 Q. And is there anything about that that 6 supports your view that Commissioner Godfrey was 7 biased against employers? A. 8 9 I would say the facts -- it supported the fact that the decision was wrong. Q. 10 But I thought we agreed, Mr. Beresford, 11 that being wrong was not an indication of being 12 biased. A. 13 Is that true, or is that untrue? It depends on the circumstances in the 14 particular case. 15 yes. 16 Q. You can be biased at times, That's what I'm asking you about what 17 you said here. 18 that Commissioner Godfrey was reversed in this 19 case shows that he was biased against employers? 20 21 A. Do you believe that the fact I don't think the Court of Appeals decisions reversing him says that, no. 22 Q. I'm asking you what you say. 23 A. I think taken as a whole, if you look 24 at some of these cases, yes, it definitely shows 25 a trend that was not favorable for employers and HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 162 1 was expanding, you know, claimants' or injured 2 employees' rights under the Workers' 3 Compensation Act. 4 Q. Are you aware that the law itself says 5 that the workers' compensation statutes are to 6 be interpreted in favor of the claimant? 7 A. I am aware of that provision. 8 Q. You just don't want Commissioner 9 10 Godfrey to do that? A. I'm -- Just because it says that 11 doesn't mean everything has to be decided for 12 the claimant. 13 14 Q. I understand that. Believe me, I do understand it well. You go on to say that you spoke 15 16 to the attorney, who is Pete Sand, who says that 17 Teen Challenge would have been forced to close 18 its doors if this claim was found to be 19 compensable. 20 not that was true? Did you check to see whether or 21 A. No. I relied on Mr. Sand. 22 Q. Were you aware that it was the practice 23 of Teen Challenge to send the people who were 24 there for treatment outside the campus to rehab 25 houses so that Teen Challenge could flip them HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 163 (DEPOSITION OF TODD BERESFORD) for a profit? 2 A. I am not familiar with Teen Challenge. 3 Q. The next case is Heiman. 4 5 MR. CLAUSEN: break. 6 7 It's time for a MS. CONLIN: I'm sorry. You said that, and I forgot. 8 (A recess was taken.) 9 (Exhibit 187 was marked for 10 11 identification.) Q. The next case that you mention, 12 Mr. Beresford, is Heiman versus Walsh Chevrolet. 13 You indicate that the deputy who heard the 14 testimony had determined that the claimant had 15 concocted the story of how he allegedly was 16 injured and found the claimant not to be 17 credible and then Godfrey reversed the 18 arbitration decision, rejecting the credibility 19 determination made by the deputy. 20 You don't make this a quote, but 21 it is a quote. 22 belief or understanding that the transmission 23 story was 'concocted.'" 24 25 "I do not share the deputy's And this case was brought to your attention how? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) A. I believe this was provided by somebody 2 at one of the law firms. 3 Scheldrup firm, I believe. 4 164 Q. I think it was the And it says in the arbitration decision 5 "This deputy finds Claimant to be less than 6 credible. 7 any weight when determining whether Claimant 8 sustained an injury that arose out of and in the 9 course of his employment." His medical theories are not given 10 (Exhibit 188 was marked for 11 12 identification.) Q. And then in the appeal decision, which 13 is Exhibit 188, the commissioner writes an 14 extensive opinion. 15 16 Do you know who the witness was for the defendant? 17 A. I do not. 18 Q. Well, you quote part of the paragraph 19 that says "I do not share the deputy's belief or 20 understanding that the transmission story was 21 'concocted.'" 22 page 9. 23 The commissioner says that on And then he goes on to say "It 24 appears as though the deputy bought into the 25 specious acts of the nurse case manager who HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 165 (DEPOSITION OF TODD BERESFORD) 1 required claimant to state the exact moment and 2 mechanism of when his injury occurred. 3 shrewdly constructing her causation request to 4 Doctor Wampler and thereafter ignoring 5 Claimant's statements to Doctor Wampler of his 6 work on the transmission, the nurse manager was 7 able to get an opinion on which Claimant's left 8 knee injury and further medical care could be 9 denied." 10 11 By Did you read that part of the commissioner's decision? A. 12 Back at the time I read the decision. 13 This one was one that, again, was not put 14 together by me. 15 from the Scheldrup firm. I believe it was an attorney 16 Q. But you agreed with it; right? 17 A. Yes. 18 Q. You agreed that the commissioner made a 19 mistake in giving the claimant benefits; 20 correct? A. 21 I disagreed with the ultimate decision, 22 yes. You know, one of the issues I think -- or 23 this was one of the cases, I believe, that was 24 talked about in taking the credibility 25 determination kind of away from the deputy and HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 166 (DEPOSITION OF TODD BERESFORD) 1 the person who is at the hearing and decided it. 2 Yes, that was one of the reasons that case was 3 flagged. 4 5 Q. That case was also not appealed; correct? 6 A. I do not recall. 7 Q. Well, it was not appealed. And do you 8 agree that it's okay for a nurse manager to say 9 to a layperson, injured worker when the question 10 of the injury is a repetitive motion-type injury 11 "Tell me exactly when you got injured. 12 the date. 13 were doing"? 14 15 16 A. Tell me the time. Tell me Tell me what you Is that okay? I don't think that's in the nurse's province of what a nurse should be doing, no. Q. So if, indeed, that's what happened, 17 then you would agree that Chris Godfrey's 18 decision was correct? 19 A. No. 20 Q. Rizvic. 21 from Rizvic. (Exhibit 190 was marked for 22 identification.) 23 24 25 Boy, we have a lot of stuff Q. as 190. I have marked the arbitration decision Most of the other things are already HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) marked. 2 (An off-the-record discussion 3 4 167 was held.) Q. We will skip 189, because I skipped it 5 unintentionally in my numbering, and I don't 6 want to worry for the rest of the case what 7 happened to 189. 8 9 94 is the appeal decision, which has already been marked as an exhibit. 10 11 95 is the ruling on the petition for judicial review. 12 96 is the Court of Appeals 13 decision. No. No. 96 is a Court of Appeals 14 decision that looks like this. 15 Deposition 115 is a Court of Appeals decision 16 that looks like that. 17 96 just because that's the one I marked as an 18 exhibit. Defendants' We're going to be using 19 And 97 is a decision on remand. 20 We're going to go in order of the 21 date of the decision. 22 arbitration decision dated April 13th, 2009. 23 And that is a decision by deputy workers' 24 compensation commissioner Vicki Seeck. 25 So the first thing is the And the claimant loses that case. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 168 That's what you say in your summary; correct? 2 A. Yes. 3 Q. And then you say "On appeal, 4 Commissioner Godfrey reversed the deputy and 5 awarded 60 percent disability," which is 6 $125,000. 7 8 9 A. Is that true? I think that's -- I think Walshire issued that decision, I believe. Q. Well, you would be correct, but you 10 told the governor in this missive that, in fact, 11 it was Commissioner Godfrey that decided the 12 case on appeal; correct? 13 14 15 A. That is what's stated in the memo. It appears to be an error, yes. Q. And then you go on to say that Judge 16 Huppert criticized Commissioner Godfrey's 17 decision as being -- Let's see. You say that "This court 18 19 determines that the commissioner," in your 20 telling of this it's Commissioner Godfrey, 21 "embellished the significance of a handful of 22 events which allowed him to come to the 23 conclusions he ultimately drew, while at the 24 same time ignoring the relevant evidence in the 25 record." HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 169 (DEPOSITION OF TODD BERESFORD) 1 And you tell the governor in 2 Exhibit 69 that it was Commissioner Godfrey that 3 Judge Huppert was talking about; correct? 4 5 6 A. In the end, yes, it does refer to Commissioner Godfrey. Q. Then you go on to quote from the 7 decision about lack of objectivity and that this 8 Court says that "the commissioner in this 9 instance overstepped his role as an impartial 10 arbiter of the facts and became, in essence, an 11 advocate for the respondent's position"; 12 correct? 13 A. Correct. 14 Q. And you say that that was Commissioner 15 Godfrey about which Judge Huppert was speaking 16 in his opinion; correct? 17 A. At that point, yes. 18 Q. Well, we know that's not true. Here is 19 the appeal decision. And you told me that you 20 always knew earlier in this deposition that it 21 was, in fact, Walshire who wrote that opinion; 22 correct? 23 A. I believe I did, yes. 24 Q. You always knew that, and yet you told 25 the governor in Exhibit 69 that it was HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 170 (DEPOSITION OF TODD BERESFORD) Commissioner Godfrey; correct? 2 A. Obviously that was a mistake. 3 Q. You have a whole section of this memo 4 about 5 A. 6 Deputy 7 Q. Yes. ; correct? There's a section that talks about , yes. And yet in the main section, which is 8 supposed to be about Godfrey, that's where the 9 Rizvic case appears; right? A. 10 That appears in a different section, 11 yes. 12 down. 13 general. 14 I wouldn't say it's necessarily broken Q. I would say it's more about the agency in Well, but we already talked about this. 15 Do you think that Commissioner Godfrey could 16 have fired Deputy Commissioner opinion? 17 18 19 for the A. Do I think he could have fired him just because of that decision? 20 Q. Yes. 21 A. Probably not. 22 Q. Do you think he could fire him for any 23 decision or group of decisions that he made? 24 A. In most cases, no. 25 Q. So whatever you say about Deputy HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 171 (DEPOSITION OF TODD BERESFORD) 1 , you cannot mean to tell the governor 2 of the state of Iowa that because Walshire makes 3 decisions that you don't agree with, 4 Commissioner Godfrey should have his salary 5 reduced, can you? 6 7 8 A. Rephrase -- Have salary reduced? Q. No. salary wasn't reduced. 9 Let me see if I can ask a better question. 10 Can you justify telling the 11 governor that Commissioner Godfrey should have 12 his salary reduced because of a decision that 13 Commissioner 14 15 16 A. made? I never suggested to Governor Branstad that his salary should be reduced. Q. You provided these cases to him so that 17 he could use these cases as justification for 18 what he'd already done. 19 Chris Godfrey's salary; correct? 20 A. No. And that was reduce I was asked to put together some 21 examples of cases that were concerning to 22 employers, that we felt, you know, were not good 23 cases, cases that people had complained about 24 throughout the years. 25 Q. And that's what this was. Despite what you said in the document HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 172 itself? 2 A. What are you referring to? 3 Q. We've gone through it I think three 4 times now. 5 about why you put this together. 6 A. What you say on the second page Yeah. That's -- I put it together 7 because we had asked -- we had talked about 8 these cases, this was exactly what the -- you 9 know, some of the issues were when the governor 10 candidate came and spoke. 11 question and answer. You asked about the These were the type of cases and 12 13 concerns that employers had with the current 14 agency and the way things were heading in the 15 agency. So yes, at that time I was asked 16 17 to put together an example of some of those 18 cases that we had talked about as employers that 19 were concerning and we felt were taking the 20 agency in the wrong direction. 21 Q. 22 23 A. 24 25 Q. Oh, that's right. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 173 And then we have 97, which is the 2 decision. I wanted to call your attention to 3 something that I found quite interesting in all 4 of these decisions, though in some it's not 5 mentioned. 6 If you would look at Exhibit 97, 7 a copy of which I gave you. 8 give you some more copies. And I'd be happy to 9 A. I think I have got plenty. 10 Q. Okay. Look right at the very first 11 page. Were you aware that BPI had stipulated 12 that Claimant had a work injury? 13 A. I don't recall. 14 Q. Do you see where it says that? 15 there. 16 A. 17 18 Okay. Right It says for her stipulated work injury. Q. So that's where I got the idea that, in 19 fact, the employer and the employee had 20 stipulated that she had a work injury. 21 A. Okay. 22 Q. On page PERFORMANCE31 you say, and I 23 quote, "Judge Huppert candidly states in this 24 opinion what most employers and carrier have 25 felt under Godfrey in that current agency is not HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 174 (DEPOSITION OF TODD BERESFORD) 1 an impartial arbiter and instead is an advocate 2 for the claimant and the claimant's bar." 3 4 That is what you said in Exhibit 69; correct? 5 A. That's what it says, yes. 6 Q. And you go on to say "District court 7 judge questions Commissioner Godfrey's 8 impartiality." That's what you told the 9 10 governor; correct? 11 A. That's correct. 12 Q. "District court judge felt commissioner 13 was an advocate for the injured employee"; 14 correct? 15 A. That is correct. 16 Q. This next case, Poula versus Miron 17 Construction Company, is a knee injury case. 18 don't know if we have to go through all of these 19 things, but you criticize Commissioner Godfrey 20 for letting Deputy Heitland issue the appeal 21 decision; correct? 22 23 24 25 A. It was noted that Deputy Heitland issued the appeal decision, yes. Q. "Commissioner Godfrey had Deputy Heitland issue the appeal decision." That's HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq 1 (DEPOSITION OF TODD BERESFORD) 175 what you say. 2 A. That's what it says, yes. 3 Q. Did you think that Commissioner Godfrey 4 selected Deputy Heitland to issue the appeal 5 decision specifically? 6 7 8 9 10 11 12 13 14 A. I can't answer that. I don't know how he assigned the cases. Q. Well, you say "had Deputy Heitland issue the appeal decision." What did you mean by that? A. That he's the one he designated to hear the appeal decision. Q. Do you know Deputy Heitland? I'm sure you must. 15 A. Yes, I do. 16 Q. Do you remember who appointed Deputy 17 18 19 Heitland? A. I have no idea who appointed Deputy Heitland. 20 Q. Do you think it was Chris? 21 A. No. 22 was there. 23 Q. I know he was there before Chris It was Iris Post who appointed Deputy 24 Heitland. 25 Post? Did you have any problems with Iris HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 176 (DEPOSITION OF TODD BERESFORD) A. Did I have problems with her? I didn't agree with all her decisions, no. Q. Has there ever been any workers' 4 compensation commissioner that you have felt was 5 fair to Tysons? 6 A. You know, it's a rather open-ended 7 question. Certainly, as you said, there's cases 8 I think that are decided wrong. 9 think that there have been cases decided wrong I certainly 10 on -- from other commissioners, as well as other 11 deputies. 12 decided right. 13 14 15 16 Q. I think there are some that have been How many cases a year are filed against Tysons in Iowa? A. Hundreds of cases a year. the current numbers. 17 Q. 500? 18 A. Filed before the agency? 19 Q. Yes. 20 21 22 23 24 25 I don't have 600? 800? I'm not talking about injuries. I'm talking about cases actually filed. A. It's -- It's going to be in the hundreds. Q. And of those cases, you say more than half are appealed to the commissioner? A. Ones where we ultimately have an HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 5 6 (DEPOSITION OF TODD BERESFORD) 177 arbitration decision, yes. Q. Are most of the cases resolved without a decision? A. There are, yes, a great number of ones that are resolved without a decision. Q. You told me that you resolved more of 7 them after Chris became the commissioner than 8 were resolved before; correct? 9 A. That's correct. 10 Q. So do you have any idea how many 11 opinions Chris Godfrey issued when he was the 12 workers' compensation commissioner? 13 A. I don't know the numbers, no. 14 Q. It would be hundreds; correct? 15 A. I would guess it was hundreds, yes. 16 Q. And it is clear that you disagree with 17 some of those decisions; correct? 18 A. That's correct. 19 Q. Some of the decisions you attributed to 20 Commissioner Godfrey in Exhibit 69 were not 21 decided by him; right? 22 23 A. That particular case, no, was not decided by him. 24 Q. 25 A. That is correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 178 (DEPOSITION OF TODD BERESFORD) Was that case appealed? I think it 2 was. It was appealed all the way up. 3 we should -- or maybe not. 4 The arbitration decision was one in which the 5 claimant lost. 6 the plaintiff win. 7 judicial review the claimant lost. 8 Court of Appeals held that the claimant wins. 9 So maybe It was appealed. reversed and had And then in the ruling on So And the ultimate decision 10 was upheld by the Court of Appeals. 11 aware of that? Were you 12 A. Yes. 13 Q. You didn't put that in your missive to 14 15 16 the governor; correct? A. I think it's -- Yes, it's in there. Not that particular case. 17 Q. Where is that? Did I miss that? 18 A. It's the section where it talks about 19 the standards of review and the fact that that's 20 where almost all of the cases are won, at the 21 agency level. 22 Q. 23 24 25 A. Correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 179 cq 180 (DEPOSITION OF TODD BERESFORD) 1 2 3 4 Q. Who are the top two conservative deputies? MR. CLAUSEN: 5 6 7 8 9 then? Q. 12 Who were the top two conservative deputies in 2006? A. In 2006, I would probably say and Deputy Cramer probably were two of 10 11 the more conservative deputies, in my opinion. Q. And then how about 2010? 13 most conservative? 14 think, in 2010. 15 Currently or back A. Who was the was still there, I Oh, I'm sure she was. I am not sure when all the changes 16 started happening, some of the retirements. 17 Certainly I think 18 2010, if I'm right. 19 Q. I think so. 20 A. So -- 21 Q. Who replaced 22 23 might have been gone by as one of the more conservative deputies? A. I don't know if there necessarily was 24 another conservative -- what I would consider a 25 conservative deputy. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 1 2 cq (DEPOSITION OF TODD BERESFORD) Q. Chris is telling me that 181 was there until December of 2011. 3 A. Okay. 4 Q. He probably knows. 5 A. I would defer to Chris on that, because 6 7 I would -- I certainly do not know. Q. What I'm trying to get at, you know, 8 over this period of time, from 2006 to 2014, 9 there were deputies that employers and employees 10 considered progressive, liberal, there were 11 deputies that employers and employees considered 12 conservative; correct? 13 A. I certainly think there were deputies 14 that had that label, conservative versus 15 liberal, yes. 16 Q. We've already agreed that that happens 17 at the district court level and, in fact, it 18 happens at the Supreme Court level. 19 aware of that? 20 21 22 A. Are you There are different people's opinions on, yes, the judges. Q. People start out with a philosophy that 23 is either more to the progressive side or more 24 to the conservative side. 25 opinions about issues that place us on one side Almost all of us have HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) or the other. 182 Can we agree to that? 2 A. I think we could agree to that, yes. 3 Q. So that the deputy commissioners have 4 predilections should not be surprising to 5 anybody; correct? 6 A. That's accurate. 7 Q. Do you know how deputies are assigned 8 to hear cases? 9 A. I do not. 10 Q. Do you know in advance what deputy is 11 going to hear the cases in which you're 12 involved? 13 A. Not typically, until two to maybe four 14 weeks before the cases -- when they're 15 assigned -- or before the actual dates they're 16 usually assigned. 17 Q. And in the Poula case, I'm not sure it 18 was decided at the appeal level when you wrote 19 this, because the appeal came down on 4-17-13. 20 Do you know whether or not Deputy Heitland's 21 award of workers' compensation benefits was 22 appealed? 23 A. In the Poula case? 24 Q. Yes. 25 A. Yes, I believe it was. I thought you HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) already cited that case earlier. Q. No. I'm not talking about Miron. 3 talking about his own claim of his, 4 own claim. 5 A. 6 7 Oh. I'm I don't believe it was, if I recall right. Q. Let's look at Durkop. (Exhibit 191 was marked for 8 identification.) 9 10 183 Q. Mr. Beresford, I'm marking as Exhibit 11 191 the arbitration decision in the Durkop case, 12 which you cited in Exhibit 69. 13 to this did you reread this case? 14 15 16 A. It was a Tyson case. Yeah, I read it. Q. Before you cited I believe -- I'm familiar with it. Deposition Defendants' 110 is the 17 appeal decision for Durkop. And you tell the 18 governor in Exhibit 69 that you had contracted 19 to allow a payroll deduction to purchase work 20 shirts. 21 that she went to the place where she could get a 22 discount and fell there and, in fact, was 23 awarded benefits as a result; correct? And you go on to talk about the fact 24 A. Correct. 25 Q. What deputy decided this case? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 A. Deputy McElderry, I believe. 2 Q. And did he decide in favor of the 3 claimant? 4 A. Yes, he did. 5 Q. And that was affirmed by the 6 184 commissioner; correct? 7 A. That is correct. 8 Q. Not appealed? 9 A. It was not appealed further, no. 10 Q. Do you think that this stands for the 11 proposition that the employee is entitled to 12 workers' compensation benefits when injured 13 falling on a slippery sidewalk while not at work 14 because the employee was going to pick up a 15 shirt to wear at work? 16 17 18 A. I think that's the holding of the case, Q. Do you think that if I go to buy yes. 19 clothing at a store I'm entitled to workers' 20 compensation under this decision? 21 A. It's going to be fact-specific. You 22 kind of throw out generalities. I certainly 23 think that's implied, that that could be the 24 case, yes. 25 Q. When you say "that's implied," you mean HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 185 (DEPOSITION OF TODD BERESFORD) 1 that there are no factors here which led to the 2 deputy and the commissioner deciding that in 3 these specific fact situations she was entitled 4 to recovery? A. 5 I disagree with the ultimate outcome, 6 yes. I mean, you keep talking earlier about 7 Supreme Court cases and you cite those. 8 yes, there's probably Supreme Court cases cited 9 in here, but those are cases, and you've got to And 10 apply the specific facts to that case that 11 you're deciding. And while the ultimate Supreme 12 13 Court case might be right, I disagree with the 14 application of those facts to some of these 15 cases, yes. 16 Q. Why didn't you appeal if you thought 17 that the case was wrongly decided and not in 18 accordance with the law? 19 A. Again, outside the agency it's pretty 20 tough to get things reversed. 21 a decision was made by Tyson not to appeal the 22 case. 23 you know, deciding appeals. 24 nothing to do with the case, so -- 25 Q. And at that time There's a lot of decisions that go into, Sometimes they have Did you participate in making this HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) decision? A. I'm sure I was involved in the 3 decision. 4 on -- 5 186 Q. I do not make the ultimate decision Do you remember what the considerations 6 were in not appealing this case, the Durkop 7 case? 8 9 A. I don't remember the particular one in this case, but I can say as a general 10 proposition Tyson as a whole does not appeal too 11 many cases to the appellate level. I think back in the days when I 12 13 first started and the days when Chris was there 14 IBP appealed everything to the appellate courts. 15 And frankly, we had a pretty bad reputation. 16 would go to the symposiums, and about a fourth 17 of the cases would be IBP cases. We When Tyson took us over, Tyson 18 19 has a different philosophy. 20 their names on appellate decisions a lot of 21 times. 22 Tyson appeal anymore outside the agency because 23 they do not want their name, you know, on 24 appellate cases. 25 They do not like And there's very few cases that you see So it's kind of the culture of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 the company. 2 past -- or like you did in the past. 3 So you don't see that in the (Exhibit 192 was marked for 4 5 187 (DEPOSITION OF TODD BERESFORD) identification.) Q. Exhibit 192 is the Valdez case which 6 you cite. This case, you say, is decided -- the 7 appeal decision is decided on May 25th, 2011. 8 And this was a case where the employee was a 9 part-time worker, as I recall, who was robbed at 10 gunpoint in the course of her work. 11 remember that? Do you 12 A. I remember this case, yes. 13 Q. You say in here that "the claimant 14 failed to seek treatment for almost two years 15 after the incident." 16 17 A. Is that true? I did not actually put this together. This was the attorney. 18 Q. Who? 19 A. It was the Scheldrup Law Firm that 20 21 22 prepared this. Q. And you didn't check to see whether or not it was accurate? 23 A. I read the case, I think, at the time. 24 Q. You read the arbitration decision where 25 she was awarded benefits? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 188 (DEPOSITION OF TODD BERESFORD) 1 A. Back at the time I read the cases, yes. 2 Q. And this would have been on May 28th, 3 2010. 4 5-25-2011, which affirms the deputy; correct? 5 And then the appeal decision on A. I don't recall the cases, the specifics 6 of the case right now. 7 was provided by the attorney handling the case. 8 Q. Well, we can look at it together. (Exhibit 193 was marked for 9 identification.) 10 11 Like I said, the summary Q. Here is 193. This says that 12 Commissioner Godfrey reversed the case. 13 see that? Do you 14 A. Yes. 15 Q. He reverses in part and affirms in 16 part; correct? 17 A. Yes. 18 Q. You summarize -- or Mr. Scheldrup 19 summarizes that "Godfrey reverses the deputy 20 decision finding Claimant not entitled to 21 benefits and awards benefits for PTSD and fails 22 to mention that Claimant's live-in boyfriend was 23 one of the perpetrators of the robbery which 24 allegedly caused the PTSD." 25 You are the person who sent that HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 189 1 summary to the governor of the state of Iowa; 2 correct? 3 A. That's correct. 4 Q. Do you know whether or not that 5 6 7 statement is true? A. I presume it to be true, because he was the attorney handling the case. 8 Q. On behalf of the defendant? 9 A. That's correct. 10 Q. Do you know what the claimant testified 11 as to whether or not her boyfriend was involved 12 in the robbery? 13 A. I do not. 14 Q. Do you know whether or not the 15 boyfriend was prosecuted? 16 A. I do not. 17 Q. Do you know whether or not anybody was 18 prosecuted? 19 A. I do not. 20 Q. Do you know whether or not anybody went 21 to jail? 22 A. I do not. 23 Q. Do you know whether or not she did, in 24 fact, have PTSD from having a gun pointed in her 25 face in a robbery? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 A. Do I know if she has it? 2 Q. Yes. 3 A. I've never met her. 4 5 190 No, I don't know if she has it. Q. But you just think it's outrageous that 6 the commissioner decided that she did have PTSD 7 from the incident in question and that he should 8 have taken account of the fact that her 9 boyfriend was allegedly one of the perpetrators; 10 11 correct? A. I think the gist of it was that he 12 reweighed the evidence of the deputy and, you 13 know, found causation in that particular case. (Exhibit 194 was marked for 14 identification.) 15 16 17 Q. (Exhibit 195 was marked for identification.) 19 Q. identification.) 22 24 25 195 is the appeal decision. (Exhibit 196 was marked for 21 23 I'll do the next several too. 18 20 194 is Alexander. Q. And 196 will be the district court's ruling. Here are more which you'll need HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 to look at. 2 (Exhibit 197 was marked for 3 4 5 191 (DEPOSITION OF TODD BERESFORD) identification.) Q. And then 197 is the decision of the Court of Appeals. 6 Is this a case that you 7 discovered on your own, or is this one provided 8 to you by someone else? 9 A. This was provided by somebody. 10 Q. Who? 11 A. I don't recall on this one. It may 12 have been the Scheldrup firm, but I do not 13 recall. 14 Q. So in the original arbitration 15 decision, the 75-year-old claimant was 16 delivering auto parts and alleged he injured 17 himself while lifting a container of auto parts 18 out of the back of a truck. The deputy, who was James 19 20 Christenson, decided against him in part, as I 21 recall, because the weight of the auto parts was 22 thought to be very small. Do you recall this case? 23 24 A. Yes. 25 Q. And then the commissioner reversed HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 192 (DEPOSITION OF TODD BERESFORD) 1 because he felt that the deputy had misread the 2 evidence, that it was never a matter of heavy 3 lifting, it was a matter of twisting. 4 recall that part? 5 A. 6 time, yes. 7 Q. Do you I remember reading the case at one And is this one of those cases where 8 you say we've got ten people on one side and one 9 person in favor of the claimant and the 10 11 commissioner finds for the claimant? A. I think this was more a 12 credibility-type case again, where the deputy 13 who was there heard the evidence, made some -- 14 it appears to have made some determinations, and 15 they were disregarded on appeal. 16 17 18 Q. Well, this case you say is wrongly decided by the commissioner; correct? A. I said it was reversed by the 19 commissioner. 20 reversed and perm total benefits were awarded. 21 So yes, a drastic change in the underlying 22 decision. 23 Q. The deputy's decision was In fact, it was affirmed by the 24 district court; correct? 25 by the district court. 196 is the affirmance HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 193 (DEPOSITION OF TODD BERESFORD) 1 A. It was. 2 Q. And then it was affirmed by the Court 3 4 of Appeals in 197; correct? A. It was. And I think that goes to the 5 underlying concern that we've talked about at 6 the beginning of the memo and the standard of 7 review in workers' compensation. 8 all unusual. 9 10 11 12 13 14 15 16 17 18 Q. It's not at You say a whole section about Deputy Walshire. A. Who hired Deputy I do not know. ? He was hired before -- long before I started. Q. Could it have been Workers' Compensation Commissioner Landess? A. If you say so. I don't know. I don't have any knowledge of who hired him. Q. We know for sure that it was not Commissioner Godfrey; correct? 19 A. That is correct. 20 Q. He was there long before Commissioner 21 Godfrey? 22 A. That is correct. 23 Q. He and Deputy 24 25 were the two longest serving deputies; correct? A. I don't know that for sure, but that HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) 194 would make sense. Q. You say "Deputy has been 3 delegated by Commissioner Godfrey to decide a 4 large number of appeal decisions on behalf of 5 Commissioner Godfrey." 6 How many such cases was Deputy 7 delegated? Do you know? 8 A. I don't know. 9 Q. Do you know how many cases were 10 delegated to Deputy Walleser, Helenjean 11 Walleser? 12 A. I think that in my experience the 13 majority of the cases were delegated to those 14 two deputies. 15 Q. Do you know why? 16 A. I don't know why. I never had a 17 conversation with the commissioner about how he 18 does -- designated or delegated cases. 19 20 21 Q. In fact, Iris Post delegated most of her appellate decisions to deputies; correct? A. I was only there a short time when 22 Commissioner Post was. I believe at that time 23 they might have had three chief justices who 24 handled -- 25 Q. Chief deputies? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 195 cq (DEPOSITION OF TODD BERESFORD) 1 A. Chief deputies, excuse me. 2 Q. You're correct. 3 A. Who handled the appeal cases. 4 Q. And she delegated most of the appeal 5 cases to those chief deputies, of which there 6 were three; correct? 7 A. I believe that is correct. 8 Q. Do you know that Deputy Heitland was 9 10 11 12 one of Iris Post's chief deputies? A. Yes. I recall he was a chief deputy when I first started. Q. At the time that Chris Godfrey was made 13 the workers' compensation commissioner, was 14 there a substantial backlog of appeals, a very 15 substantial backlog of appeals? 16 A. I can't say for sure. 17 Q. Was it taking a long time within the 18 19 20 21 I don't know. agency to get final decisions? A. Are you talking appeal decisions or deputy decisions? Q. Well, within the agency, a long time to 22 get the arbitration decision but an even longer 23 time to get the appeal decision. 24 25 A. I would say my experience has always been a pretty long timeline, yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 196 (DEPOSITION OF TODD BERESFORD) Q. Is it your experience that Chris 2 Godfrey was able to cut that backlog down 3 substantially? 4 A. Again, I think you want to be specific. 5 There are certain deputies in my experience who 6 get cases out a lot quicker. 7 are some, I think, who get them out typically in 8 three months. 9 in -- I've had one just last year that was, I 10 13 14 15 There are others who get them out think, 27 months. 11 12 You know, there So I think it really -- it's really based on the individual deputy. Q. Do you know what the average for time in the agency has been or time on appeal? A. I have heard them, I think, at the 16 seminars. 17 introduces the June symposium, and some of that 18 information is typically conveyed. 19 recall them right now, no. 20 Q. I think the commissioner generally I don't You seem to be saying here that the 21 commissioner chose Deputy 22 cases on appeal because he was one of the most 23 liberal deputies. 24 imply? 25 A. No. to hear the Is that what you mean to I'm just saying Deputy HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) 197 heard a lot of these appeal decisions. Q. You also say, "In addition, Deputy 3 had assisted in drafting some 4 pro-claimant proposed workers' compensation 5 legislation and the ABI workers' comp 6 legislative committee had proposed making such 7 acts illegal given the inherent conflict." 8 Tell me about that, please. 9 A. I am not overly familiar with what 10 happened, but several years ago there was 11 something where he had supposedly put together 12 some legislation or approved it or recommended 13 some legislation. 14 Q. Who wrote this part of your memo? 15 A. I don't recall specifically where that 16 came from. 17 of that. 18 heard or had been conveyed. 19 Q. I did not have firsthand knowledge Again, that is, again, what I had Can you tell me anything about the 20 legislation that he is accused of having 21 assisted in drafting? 22 23 24 25 A. I don't know anything about the specific legislation, no. Q. Do you know anything about the ABI's workers' compensation legislative committee HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 198 (DEPOSITION OF TODD BERESFORD) 1 proposing to make, quote, such acts illegal, 2 unquote? 3 A. 4 ABI group. 5 Q. 6 7 8 I was not involved at that time on that Would it have been back in the '90s? mean, when did he do this? A. Do you know? I think this was within the last three to four years, I believe. 9 Q. Well, when you say -- 10 A. Or of the memo sometime, when this was 11 written. 12 sometime in that near -- so it would have been 13 '08 to '11, sometime in there. 14 15 16 17 Q. So three to four years before that, What? This memo is written in July 2011. A. I've got my dates wrong. 2011; right? 18 Q. In the middle of 2011. 19 A. Yes. So it would have been sometime 20 within three years of that. 21 before that. 22 area. 23 I'm sorry. Q. Two to three years So '9 to '11, sometime in that I don't recall the specifics. No. That doesn't make any sense. Are 24 you talking about it would have been three to 25 four years behind the letter? In other words, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq 199 (DEPOSITION OF TODD BERESFORD) 1 subtract three years from 2011, or are you 2 talking about from now? A. 3 4 From when the letter was written or when this was. Q. 5 So you don't mean to imply that Deputy was proposing legislation in 2011, do 6 7 you? A. 8 9 10 So that was July of 2011. No. Sometime before. that was written. Obviously before I think in -- within two to three years of that. Q. 11 Now it's two to three years. 12 you were saying three to four years. 13 really don't have any idea, do you? A. 14 It was before that. 15 stated that I do not recall. 16 involved. Q. 17 Before So you I think I've I was not Even though you cannot identify the 18 time frame, you cannot identify the legislation, 19 you were not party to any of the discussions 20 with respect to it, you still told that to the 21 governor of the state of Iowa; correct? 22 23 24 25 A. That was in the letter -- or the memo, Q. And the memo was given to the governor; yes. correct? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. That's correct. 2 (Exhibit 198 was marked for 3 4 200 (DEPOSITION OF TODD BERESFORD) identification.) Q. The first case that you mention to the 5 governor is Sandberg versus Rubbermaid Products. 6 I have marked the arbitration decision as 198. 7 (Exhibit 199 was marked for 8 9 identification.) Q. This is pretty confusing, I've got to 10 tell you. At least it was to me. 11 medical care decision will be marked as 199. 12 13 14 The alternate Can you explain alternate medical care to me? A. It is a provision -- a statutory 15 provision that allows for the employee to 16 request a different medical provider under 17 certain circumstances. 18 Q. And then if the employer refuses, then 19 the employee can bring an alternate medical care 20 kind of cause of action to the commission? 21 A. That's correct. 22 Q. And then is that an appellate 23 24 25 proceeding, or is that an initial proceeding? A. Typically there's a standing order from the commissioner. There has been ever since HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 I've started. 2 the standing order. 3 deputy. 4 201 Every commissioner has adopted They delegate that to a And there is no appeal right to 5 the commissioner on that. 6 agree with that, you need to appeal directly to 7 the district court. 8 9 10 Q. So maybe we don't have to deal with the alternate medical decision. I'm going to mark the appeal decision as 200. 13 (Exhibit 200 was marked for 14 15 16 identification.) Q. And then the petition on judicial review as 201. 17 (Exhibit 201 was marked for 18 19 These go in a certain chronological order. 11 12 So if you do not identification.) Q. And then the Court of Appeals decision 20 as 202. I'm sorry. 21 it that at all. 22 is Defendants' Deposition Exhibit 112. 23 No, I'm not going to mark The Court of Appeals decision And then I have another medical 24 care decision. 25 decision. I have another medical care And that I've marked already as NA. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Then I've got a remand decision, which is 202. 2 (Exhibit 202 was marked for 3 4 5 202 (DEPOSITION OF TODD BERESFORD) identification.) Q. I think I have them all marked now, Mr. Beresford. 6 Is this entry in Exhibit 69 one 7 that you prepared, or was it prepared on your 8 behalf by someone else? 9 10 11 A. I don't recall. I think this was prepared by somebody else. Q. This is one that we've already talked 12 about, in the sense that -- All right. 13 see if I can understand this case. 14 arbitration decision was in favor of 15 Ms. Sandberg. 16 benefits. 17 A. Let me The original She was found to be entitled to Is that your understanding? I believe she was found to have 18 benefits that were limited to, I think, a 19 scheduled member injury, if I recall. 20 Q. No. "Defendants shall pay to Claimant 21 300 weeks of permanent partial disability 22 benefits." 23 A. Okay. 24 Q. So that means industrial disability; 25 correct? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 A. Okay. I'm mistaken. 2 Q. So then alternate medical care is 203 Yes. 3 permitted in 199, but I don't know why we care 4 about that. 5 I don't think I gave you 200, but 6 if you're telling me alternate medical care 7 decisions are not appealed, then this has to be 8 the appeal from the underlying decision; 9 correct? 10 11 12 13 A. What was the date of the underlying decision? Q. The arbitration decision is 8-31-06. The appeal decision is 9-6-07. 14 A. That appears to be, yes. 15 Q. I think I have that. 16 Then 201 is the ruling by the 17 district court on the appeal. 18 the district court found that the claimant was 19 not -- it was Judge Hutchison, and he decided 20 that the case should be remanded to the agency 21 for further action because, among other things, 22 depression cannot serve as a basis for a finding 23 of industrial disability. 24 back to the commission. 25 And I think that And so he sent it But then the claimant appealed in HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 204 (DEPOSITION OF TODD BERESFORD) 1 Deposition Exhibit Defendants' 112. And the 2 Court of Appeals affirmed. 3 that. 4 as quoted by the Court of Appeals; correct? And you refer to You quote from the district court opinion 5 A. That's correct. 6 Q. But this is not something you wrote, or 7 is it? 8 A. 9 I believe it might have been summarized by somebody else. I probably added at the end. 10 I don't think I actually wrote the substantive 11 part of the summary, no. 12 13 14 15 Q. And this is, again, a case not decided by Godfrey on appeal; correct? A. He issued the appeal decision, I believe, yes. 16 Q. Well, let me see. 17 A. Your Exhibit 200, I believe. 18 Q. But 19 A. The arbitration decision was decided by 22 decided the -- , I believe, yes. 20 21 Maybe I'm confused. Q. And then there was a remand. will be 203. Do you have that in front of you? 23 A. I do not have 203. 24 Q. I wonder what that is. 25 And that I'm sorry. It is 202. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 205 (DEPOSITION OF TODD BERESFORD) 1 A. So yes, I do have 202. 2 Q. And in that case the commissioner, and 3 this is Godfrey, says that he's going to, of 4 course, follow the district court and the Court 5 of Appeals, but he takes issue with the very 6 statement that you cite, which is that he or the 7 deputy intended to extend existing caselaw. 8 he talks about a decision decided in 2005 under 9 the Trier administration which, in fact, appears And 10 to say that chronic pain can, in fact, extend a 11 scheduled injury to an industrial disability. 12 13 That's on page 3. that? 14 A. On the remand decision? 15 Q. Yes. 16 A. Okay. 17 18 Do you see I'm looking at page 3. Could you please ask your question again? Q. While the commissioner, of course, 19 follows the rule, he disagrees with the Court's 20 decision, and in doing so he cites a case called 21 Young versus EDS Distribution Services decided 22 in 2005. 23 commissioner. 24 was said by Larry Walshire in his original 25 opinion, which was that when an injury involves Mr. Trier, I think, was the Which seems to say exactly what HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 206 1 a scheduled member but there is chronic pain 2 from the injury, that means that the disability 3 is to the body as a whole. 4 Do you see that? 5 A. I see where he's saying that, yes. 6 Q. So, in fact, the decision made by 7 Walshire and affirmed by the commissioner was 8 based on agency precedent; correct? A. 9 10 cites a case for that general proposition. Q. 11 12 According to this remand decision, he And Caven versus John Deere -- I think we are nearly done with these cases. 13 A. Promise? 14 Q. I think so, but Caven just goes on and 15 on. Do you know the case of Martin 16 17 versus General Mills? 18 materials, but I was wondering if you know that 19 case, if anyone brought that case to your 20 attention. 21 A. 22 23 24 25 It's not among your I see a lot of cases. I don't recall it right off the -Q. Well, let's talk about Caven. (Exhibit 203 was marked for identification.) HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 Q. Here is 203. And that is the arbitration decision. 3 (Exhibit 204 was marked for 4 5 207 (DEPOSITION OF TODD BERESFORD) identification.) Q. This case is alternate medical care, 6 but I don't think that was at issue. Okay. 7 204, then, will be the appeal decision. 8 look at this. Take a 9 You attribute this decision to 10 Deputy Walshire, but at least the copy that I 11 have, Mr. Beresford, is not signed. 12 mentions who the deputy was in the opinion on 13 the review. 14 believe that Deputy Walshire was the one who 15 decided the case on appeal? 16 A. Perhaps it Do you remember how you came to I think you've got a different 17 decision. 18 the one on the website, I think, or -- I'm not 19 sure where -- 20 Q. I believe it's signed off on -- maybe I don't know where I got this. Let me 21 see what it says. 22 Compensation Decisions (2009)" at the top. 23 A. It says "Iowa Workers' In my experience, sometimes there's 24 different versions of these. 25 some aren't, so -- Some are signed, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) Q. But we know for sure that it is Walshire? A. 3 Yes. (Exhibit 205 was marked for 4 identification.) 5 Q. 6 7 And then the order on judicial review will be 205. This is the Defendants' Exhibit 8 9 208 114. And then there's a review 10 11 reopening, which I don't think has to do with 12 the underlying issue that we were talking about 13 earlier, about who pays for what, so I don't 14 think I'll mark that. Can we agree that it doesn't have 15 16 anything to do with that? 17 A. I can agree to that, yes. 18 Q. And then there is an appeal from the 19 review reopening decision, which I also -- 20 A. I don't recall. 21 Q. Well, there is. 22 A. If you've got it in your big stack 23 24 25 If you say so -- there, I would not dispute that. Q. Let's just talk about the ones that are pertinent to your discussion in Exhibit 69. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 And cq (DEPOSITION OF TODD BERESFORD) 209 1 that is where you say that in Caven, "Deputy 2 Walshire issued an appeal decision and 3 unilaterally reversed over 20 years of agency 4 precedent. 5 While the hearing deputy limited the 6 reimbursement for the cost of Doctor Tyler's and 7 other reports under Rule 876 IAC 4.33 to $150 8 based upon agency precedent, that precedent is 9 legally flawed and must be reversed." 10 11 Specifically Deputy Walshire stated: He cites the reason for that; correct? 12 A. He cites his reason, yes. 13 Q. Do you think he was wrong about that? 14 A. I don't agree with his decision. 15 Q. Well, the rule does say what he says it 16 says, which is "Costs taxed by the workers' 17 compensation commissioner or a deputy 18 commissioner shall be the reasonable costs of 19 obtaining no more than two doctors' or 20 practitioners' reports"; correct? 21 A. That is what it says. 22 Q. You might disagree with that, but that 23 is the law; right? 24 A. That is what that says. 25 Q. Well, it's not the law? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 210 1 A. That's what it says. 2 Q. Well, but because it says what it says, 3 that makes it the law, doesn't it? 4 5 MR. CLAUSEN: is the law," are we talking about -- 6 7 8 9 When you say "that MS. CONLIN: What I just read to him. Q. "Costs taxed by the workers' compensation commissioner or a deputy 10 commissioner shall be the reasonable costs of 11 obtaining no more than two doctors' or 12 practitioners' reports." 13 right? 14 A. That is the law now. 15 Q. You disagree with the law; right? 16 A. Maybe his interpretation of it, yes. 17 Q. Well, how would you interpret it, 18 19 20 21 22 23 Mr. Beresford? A. That is the law; I'm very interested in that. I just said I disagree with his interpretation of it. Q. I know. That's why I'm asking you how you would have interpreted it differently. A. If I was a deputy commissioner, I would 24 have followed the precedent that had been in the 25 agency for 20-some years. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 Q. (DEPOSITION OF TODD BERESFORD) 211 Even though it was clearly wrong under the law; right? A. 3 I don't necessarily think it was wrong 4 under the law. If how many commissioners -- 5 past commissioners had said that was the agency 6 precedent, that's their interpretation of the 7 agency precedent, no, I would not say that was 8 wrong. 9 Q. You would have had the workers' 10 compensation commissioner ignore the published 11 rules to give employers a break on medical 12 costs; correct? A. 13 No. I would have -- If I was a deputy 14 commissioner, I would have followed the 15 precedent. 16 Q. 17 of the written rule; correct? 18 19 20 Even if the precedent was in derogation A. I would have followed the precedent, Q. So what happened in the case was Deputy yes. 21 Commissioner Seeck issued her ruling, and she 22 followed agency precedent with respect to the 23 question of how much the defendants shall pay 24 for a report; is that right? 25 A. Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 212 (DEPOSITION OF TODD BERESFORD) Q. And then that is when this appeal is 2 issued by Deputy Walshire, who affirms 3 everything except the reimbursement for Doctor 4 Tyler's and others' reports; correct? 5 looking at 204. I'm sorry. I'm 204, page 2. 6 A. Okay. 7 Q. He affirms her decision except as to 8 whether the payment should be $150 or the 9 reasonable cost. And for that he says it should 10 be what the law says, which is the reasonable 11 costs of obtaining no more than two doctors' or 12 practitioners' reports. 13 correct? That's what he says; 14 A. That's what he says. 15 Q. And then he cites as the reason why he 16 is changing agency precedent "As recently 17 instructed by the Iowa Supreme Court, this 18 agency cannot ignore the plain wording of its 19 own rules." 20 B-O-E-H-M-E, versus Fareway Stores, Inc., which 21 was decided on February 27th, 2009. And he cites a case called Boehme, Do you see that? 22 23 A. I see that. 24 Q. Are you familiar with that case? 25 A. I don't recall that case. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 213 You did not mention that the deputy 2 felt he was following a very recent 3 pronouncement of the Iowa Supreme Court in your 4 Exhibit 69; correct? 5 A. No. 6 Q. And you said instead that he all by 7 himself had reversed agency precedent of over 20 8 years; correct? 9 A. That is correct. 10 Q. Then the case went to judicial review, 11 which is 205. 12 review? And what happened on judicial 13 A. It was affirmed. 14 Q. So the court agreed that Deputy 15 Walshire was right about what the rule said; 16 correct? 17 A. They affirmed his decision, yes. 18 Q. That's a question of law, 19 Mr. Beresford. Don't we agree on that? 20 A. Their interpretation of the law, yes. 21 Q. No. This is a question of what the 22 employer pays and whether or not the commission 23 has to follow its own rules. 24 of law. 25 A. That's a question Yes. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 214 So the district court could have 2 reversed that decision by Deputy Walshire if 3 they thought he was wrong; correct? 4 A. That is correct. 5 Q. And they did not? 6 A. They did not in that case, no. 7 Q. And in the Court of Appeals what 8 happened? 9 A. It was affirmed as well. 10 Q. And John Deere conceded that it had to 11 pay the costs of the doctors' reports in the 12 appeal case; correct? 13 14 15 16 A. I assume they paid for them, yes, after the final appeal. Q. They just wanted it to be under a different rule? 17 A. Section. 18 Q. Right? 19 A. What's your question? 20 Q. My question is John Deere agreed they 21 had to pay the reasonable costs, but they wanted 22 it to be under a different rule rather than the 23 rule cited by the deputy. 24 understanding of what John Deere wanted from the 25 Court of Appeals? Is that a correct HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 (DEPOSITION OF TODD BERESFORD) A. I do not remember particularly that sentence. 3 Q. 4 your case. 5 A. Where are you at now? 6 Q. I'm on page 36. 7 A. Yes. And then you cite Shaw. (Exhibit 206 was marked for 9 11 And that's That's a Tyson Foods case; correct? 8 10 215 identification.) Q. This is Exhibit 206. And this is the arbitration decision. 12 Now, when this case was decided, 13 your responsibility was no longer as a lawyer, 14 correct? 15 A. That is correct. 16 Q. It was as the director of the 17 department? 18 A. Yes. 19 Q. What role would you play in a case like 20 21 this, Mr. Beresford? A. I would have overseen the litigation, 22 been engaged in getting settlement authority, 23 making decisions whether to settle or proceed to 24 take this to arbitration. 25 Q. And we're still talking about Deputy HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 Walshire. 2 I will mark as Exhibit 207. 3 So here is the appeal decision, which (Exhibit 207 was marked for 4 5 216 identification.) Q. And then there is a ruling on the 6 petition for judicial review, which I will mark 7 as 208. 8 (Exhibit 208 was marked for 9 10 11 identification.) Q. decision, which is 209. 12 (Exhibit 209 was marked for 13 14 And then there is an appeal court identification.) Q. 15 Here is the appeal decision. So we've got 206, which is the 16 deputy's decision. And in the deputy's 17 decision, which is written by Michelle McGovern, 18 the claimant loses; correct? 19 A. Correct. 20 Q. And then the case is appealed, and it 21 is appealed, and it is Deputy Walshire who says 22 that the claimant wins; correct? 23 A. That is correct. 24 Q. And you disagree with that? 25 A. I do disagree with that. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. (DEPOSITION OF TODD BERESFORD) 217 You say "Last week during the middle of 2 the Godfrey controversy the commission continued 3 to strike at employers when it issued this 4 decision once again reversing the deputy finding 5 that Claimant was not entitled to workers' 6 compensation benefits and awarding essentially a 7 permanent and total finding." 8 9 10 And you talk about the bilateral foot conditions. Claimant was a diabetic. you know about this Charcot foot deformity? 11 A. Do I know about it? 12 Q. Yes. 13 A. I've got a general medical 14 15 Do understanding. Q. And then "Deputy Walshire issued the 16 appeal decision and reversed the arbitration 17 decision and awarded Claimant benefits, 18 including a running TTD award and noted that 19 Claimant will likely never return back to work. 20 Deputy Walshire found the injury did not 21 'manifest' until it most impacted Claimant's 22 employment. 23 not occur until August 30th of 2007." 24 25 Deputy Walshire determined that did And the issue in the case was principally a statute of limitations issue; HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) correct? 2 A. Correct. 3 Q. A notice issue. 4 5 218 You say that the deputy awarded permanent and total disability; correct? 6 A. Yes. 7 Q. And then the case was appealed to the 8 district court, and the court affirmed the 9 opinion. 10 A. They did. 11 Q. And then the district court's opinion 12 was affirmed by the Court of Appeals; correct? 13 A. Correct. 14 Q. And you didn't mention any of that in 15 your material because, in fact, none of this had 16 happened at the time you wrote this; correct? 17 All that had happened was the arbitration 18 decision and the -- 19 20 21 A. This would have been approximately, yeah, within that month. Q. You do comment on other matters. You 22 say that the deputy had a detailed decision 23 citing multiple portions of the record, Deputy 24 Walshire doesn't mention it, and there's no 25 decision as to whether or not to appeal. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 1 219 The other issues that you mention 2 are the alternate medical care videoconference 3 failure. 4 Godfrey mandated a new requirement for alternate 5 medical care hearings." "In 2008," you say, "Commissioner 6 7 Tell me about that. A. Yeah. There was a requirement that all 8 workers' compensation parties obtain some 9 equipment, with the understanding that all the 10 future alternate medical care proceedings that 11 were currently tape-recorded were going to be 12 videotaped. 13 some software items. 14 Q. Certain things like headsets and You say "Videoconferencing rather than 15 telephonically, as they had always been 16 conducted in the past. 17 that the defendant arrange a certified court 18 reporter to record the hearing." 19 20 21 And that had not been done? There wasn't a certified court reporter before? A. In the past I think deputies had a tape 22 recorder. 23 themselves. 24 25 In addition, he mandated Q. They tape-recorded, I believe, There was no mandate of a certified reporter to take down the hearing? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 220 (DEPOSITION OF TODD BERESFORD) A. I don't know if they did it over the 2 video -- a video recording or a handheld tape 3 recorder. 4 tape-recorded by the deputies. 5 Q. I don't know. All I know is it was You had to purchase an Internet-based 6 service called Meeting Place to provide web 7 services. How much was that? 8 A. I do not know. 9 Q. Do you know about oovoo.com? 10 A. I do not. 11 Q. Where did you get the idea that you had 12 13 I did not purchase it. to purchase meetingplace.com? A. The person -- I think Sherri Hansen in 14 our office was responsible for the technical 15 components of it. 16 Q. How much did it cost? 17 A. I do not know how much it cost. 18 Q. Well, you say here "The ultimate cost 19 of the equipment and software for this project 20 is not known but should be fairly easy to 21 determine by reviewing the IWCC records for the 22 purchase of this equipment, as well as travel 23 and training expenses, et cetera, from the 24 commissioner related to this purchase. 25 after most attorneys purchased the requirement HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 However, cq 221 (DEPOSITION OF TODD BERESFORD) 1 web cameras, this project was ultimately 2 scrapped without ever being implemented because 3 the commissioner's office could not get the 4 system to work properly." 5 Do you know that the Workers' 6 Compensation Advisory Committee recommended this 7 procedure? 8 A. No, I do not. 9 Q. You don't know whether or not Chris 10 just made this up and imposed it on employers by 11 himself or whether it was, in fact, suggested by 12 the Workers' Compensation Advisory Committee 13 made up of all stakeholders in the system? 14 A. No, I do not. 15 Q. And do you know whether or not most 16 employers wanted a deputy to be able to see the 17 worker to judge his or her credibility? 18 A. Nobody told me that, no. 19 Q. You made some assumptions in terms of 20 this alternate medical care videoconferencing 21 failure; right? 22 23 A. I wouldn't say assumptions. Everybody I talked to, that was their opinion. 24 Q. Well, who did you talk to about this? 25 A. I would say a number of other HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 222 1 employers, defense attorneys that we dealt with 2 at the time. 3 Q. Who? 4 A. I would say any of our outside law 5 firms at the time. There's probably a number of 6 them. 7 state. 8 Q. Who? 9 A. The Nyemaster firm. 10 Q. Who do you use at the Nyemaster firm? 11 A. Coreen Sweeney, Stephanie Marett. 12 Q. And they're the ones that told you that Four or five firms we use throughout the 13 the commissioner made this up and then it 14 failed? 15 A. We talked about this, yes, not working, 16 not getting it to work and eventually it was not 17 used. 18 Q. You allege in Exhibit 69 "Accordingly, 19 this was a complete waste of money for a system 20 that never ended up being used and for which 21 Commissioner Godfrey did not seek input from any 22 of the stakeholders prior to mandating." That's what you told the 23 24 25 governor; correct? A. That's correct. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 2 statement? 3 A. 4 aware. 5 people I spoke to were contacted. Q. 6 223 (DEPOSITION OF TODD BERESFORD) And is that a true statement or a false I believe it to be true. We were never contacted. I was not None of the Well, the Iowa Workers' Compensation 7 Advisory Committee has been in place for 8 decades; correct? 9 A. Yes, it has. 10 Q. And that is an agreed upon vehicle 11 through which the commissioner can get advice 12 and assistance; correct? 13 A. That is one of its functions. 14 Q. And it is, in fact, made up of all 15 stakeholders; right? 16 17 18 A. There are different stakeholders on it, Q. All stakeholders are represented in one yes. 19 way or another on the Iowa Workers' Compensation 20 Advisory Committee; correct? 21 A. Yes. 22 Q. And if, in fact, it was the advisory 23 committee that suggested this, then your 24 statement would not be true; correct? 25 A. My statement is that we as stakeholders HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 224 1 and defense -- the advisory committee, if -- I 2 don't know that to be true. 3 that was a recommendation, I was not aware of 4 it. 5 the advisory committee at that time. 6 We never received any input from anybody on Q. Do you think that you get to have input 7 on every single decision? 8 position? 9 If you're saying A. Is that your Major decisions that affect us, where 10 we're required to purchase things like this, 11 yeah, I think it should -- 12 13 Q. Was this just a tremendous cost, Mr. Beresford? MR. CLAUSEN: 14 15 object. This is argumentative. But if you know what the cost 16 17 I'm going to was, you can tell her. 18 A. I do not know what the cost is, no. 19 Q. Was it thousands and thousands of 20 dollars? 21 A. I do not know what the cost was. 22 Q. Well, I'm a little concerned about 23 exactly what you expect from Commissioner 24 Godfrey. 25 representative of the self-insurance people Was he supposed to call you or was the HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 225 1 supposed to call you? 2 to reach out to you before they implemented this 3 terribly expensive system? 4 A. I mean, who was supposed I think it should have been 5 communicated to everybody beforehand, asked 6 input. 7 might have known about it. 8 majority did not. And obviously a small subset of people Clearly the vast 9 Q. Is ABI a small subset? 10 A. Of what? 11 Q. Of stakeholders. 12 A. Of what? 13 Q. You indicated that obviously a small 14 subset might have known about it, but somehow 15 you missed it. 16 of ABI as a small subset of stakeholders. I'm just wondering if you think 17 A. ABI is a fairly large association. 18 Q. Do you know whether or not they had 19 signed off on this? 20 21 22 23 24 25 A. I do not know if they signed off on it, Q. At this time you were no longer a no. member of ABI; right? A. I don't know the dates when we were members and when we were not. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 Q. 226 (DEPOSITION OF TODD BERESFORD) Do you know whether or not this issue 2 was placed on the workers' compensation agency 3 website months prior to its implementation? 4 A. I believe it was. 5 Q. Did you see it? 6 A. I don't know if I saw it, necessarily. 7 I know Sherri Hansen in my office, who would 8 have oversaw it, obviously was aware of it. 9 Q. And did you e-mail Chris or someone on 10 his behalf to tell him that you didn't want to 11 have to make this terribly expensive purchase 12 and be able to see claimants as they testified? 13 MR. CLAUSEN: 14 MS. CONLIN: 15 Hold on a second. I'm going to withdraw it. MR. CLAUSEN: 16 I'm going to object 17 to the question. You're getting argumentative, 18 and it assumes facts not in evidence. 19 said it was terribly expensive. MS. CONLIN: 20 21 said I would withdraw it. 22 offensive question. 23 Q. I am. He never I know. I And I will ask a less Did you, after you learned that this 24 was in the planning stages, reach out to anyone 25 in the workers' compensation commission to HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 227 discuss it or to express your disapproval? 2 A. No, I did not. 3 Q. In fact, you did think this was a good 4 idea, didn't you? 5 A. Me personally? 6 Q. Why did you think it was not a good 7 8 9 No. idea? A. I don't have a problem with the premise of it, but I think what I am trying to say here 10 is ultimately it did not work. 11 beforehand I think there should have been more 12 testing done before requiring everybody to go 13 out and make this purchase and, you know, go 14 down this route. 15 16 17 18 Q. Obviously If it had been successful, it would have saved the employers lots of money; right? A. I don't think it would have saved employers money. 19 Q. You don't? 20 A. Having a videoconference versus a phone 21 call? 22 Q. Right. 23 A. No. You're not traveling to the 24 commission either way, so I don't think you're 25 saving money. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 228 You next mention the PERFECT system 2 which you say Commissioner Godfrey has been 3 touting for a few years, a new online system. 4 It was supposed to go live last January. 5 January" means January of 2011; correct? 6 A. That would have been -- Yes. 7 Q. The system is not implemented. 8 Do you know why it wasn't implemented? A. 9 10 "Last I am not familiar with the specific reasons. Q. 11 You say that "The state has yet to see 12 this system up and running, much like the failed 13 'alternate care system' that Commissioner 14 Godfrey touted a few years earlier as putting 15 Iowa on the cutting edge of technology." Did Commissioner Godfrey ever say 16 17 those words? A. 18 19 Which specific words? I'm rereading the paragraph. Q. 20 "Putting Iowa on the cutting edge of 21 technology." 22 that you say failed. A. 23 That's the alternate care system I don't recall. That was four years 24 ago. I know there was a lot of talk that -- he 25 did talk about the systems, and I believe at one HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 229 1 of -- one of these symposiums or something I 2 believe he had made that representation, yes. 3 Q. At the time that you wrote this you do 4 not know whether or not the PERFECT system was 5 being completed or was stopped; correct? 6 A. I know that we were required or had 7 office personnel that were required to attend 8 certain meetings to use the system or to get 9 familiar with the system. I don't recall the 10 number. I think one or two times they had went 11 to certain -- or were required to go to 12 meetings. 13 not implemented in Iowa. And to this date, yes, I -- no, it is 14 Q. It's still not implemented; right? 15 A. That's correct. 16 Q. With respect to IME costs out of 17 control, is it correct that all medical costs 18 have been going up regularly over the last 19 several years? 20 A. Most medical costs are going up, yes. 21 Q. I think you've already told me that you 22 do not understand the idea of a medical fee 23 schedule; is that correct? 24 25 A. Or do you? Do I understand -- I understand what they are. They do not have one in Iowa, no. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 230 And a medical fee schedule, which 2 Commissioner Godfrey has proposed repeatedly, 3 has he not? 4 A. I don't know. 5 Q. Have you been to the symposiums? 6 A. I have been to the symposiums. 7 Q. Do you attend the meetings, the 8 actual -- 9 A. Yes, I do. 10 Q. A medical fee schedule would impose 11 fees on the various services provided by the 12 medical community; correct? 13 A. That is correct. 14 Q. And one of the things that could cover 15 16 would be the cost of an IME; right? A. They don't always, but yes, you could 17 spell that out. 18 the fee schedule. 19 20 Q. That could be a provision in Have the costs of IMEs or medical examinations by your own doctors also gone up? 21 A. Yes. 22 Q. And you complain that "There are cases 23 where Godfrey and the agency have ordered 24 employers to pay astounding IME charges for 25 claimants' IMEs. The agency does not even HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 231 (DEPOSITION OF TODD BERESFORD) 1 mention nor look at the reasonableness 2 requirement of the code." 3 Isn't that the thing that we were 4 discussing back here in the 5 reasonableness requirement? You took issue with 6 the decision of Mr. to impose a 7 reasonableness requirement on the costs of a 8 doctor's report. 9 A. The 10 Q. Yes. 11 sorry. 12 criticized 13 A. case, the Do you remember that? case? Isn't that it? . . I'm That's one of the cases you for. That was the case, yes, that talked 14 about fees. 15 issues too in that case was, you know, what was 16 considered a report under that particular code 17 as well. 18 Q. I believe -- I believe one of the You then talk about road venues. And 19 you say "Commissioner Godfrey continually 20 threatens to take away workers' compensation 21 road venues." When did he make those threats? 22 23 A. There was something issued right 24 around -- I would say sometime in 2011. 25 remember the dates. I am guessing it was HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I don't cq 1 232 (DEPOSITION OF TODD BERESFORD) sometime in the months leading up to this. 2 Q. But you use the word "continually." 3 A. It was a continuing issue at that 4 point. 5 I think, of July 1st of that year, if I remember 6 right. 7 Q. Well, where did you learn about this? 8 A. I don't know if there was something on 9 I believe there was a deadline imposed, the agency website at the time. It was 10 obviously a big issue at the time for interested 11 parties in Iowa workers' compensation cases. 12 Q. At the time you wrote your document to 13 the governor, Teresa Wahlert was the head of the 14 IWD; correct? 15 A. I believe so, yes. 16 Q. And do you know whether or not she 17 18 wanted to take away all road venues? A. I don't have personal knowledge of what 19 Teresa -- Director Wahlert may or may not have 20 wanted to do, no. 21 Q. Do you recall that the agency budget 22 was cut across the board by 10 percent during 23 the budget year of 2010? 24 25 A. I don't know the specifics. I know there were budget cuts. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 233 (DEPOSITION OF TODD BERESFORD) Q. You told me that there was some kind of a deadline of July 1st; right? 3 A. I believe so, going off memory. 4 Q. There was something on the website, you 5 think? 6 A. 7 8 9 10 I'm guessing it was the website. Or obviously stakeholders were made aware of it. Q. And when you say "continually," what does that word mean in this context? A. At that point, I think leading up to 11 that -- it was around that time that it was a 12 continuing issue for -- it had not been 13 resolved. 14 Q. You say "Finally, Commissioner Godfrey 15 continually threatens to take away workers' 16 compensation road venues." 17 get at how many times he threatened to make it 18 continual. 19 A. I'm just trying to At the time it was a continual issue. 20 I don't remember the specifics, how many times 21 it was posted, where it was posted. 22 tell you at the time, I know as a stakeholder 23 there were a lot of concerns that we had as a 24 company, as well as others. 25 Q. I can just Did that ever happen? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 234 1 A. That did not happen. 2 Q. Has it happened since? 3 A. It has not happened. 4 Q. What was cut from the budget of the 5 Workers' Compensation Division when Branstad 6 came to be the governor? 7 A. I do not know the specifics. 8 9 MR. CLAUSEN: one last break. 10 11 MS. CONLIN: Why don't we do that. 12 13 Why don't we take (A recess was taken.) Q. With respect to Exhibit 69, are there 14 any more bizarre cases that you can think of or 15 that have happened since then? 16 "bizarre" in quotes. 17 A. And I put I think this was a sample of cases that 18 concerned employers, including myself, and it 19 was just a subset of cases. 20 certainly other cases out there. So yes, there are 21 Q. Can you think of any? 22 A. I would have to go back and look 23 through, but yeah, there's other cases out 24 there. 25 Q. Have you prepared any list of such HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 cases? 2 A. 3 cases. 4 Q. 5 6 (DEPOSITION OF TODD BERESFORD) 235 I have not prepared a list of such What would you look at to determine which cases you think are bizarre? A. I would say bizarre -- I would say this 7 is a subset of cases where we are concerned, our 8 employers were concerned with these type of 9 cases. 10 Q. And it is not all-inclusive. No. That's not what I asked you. If you were to be tasked with 11 12 finding the cases that you consider to be 13 bizarre, what would you look at? 14 A. Do you want to define "bizarre"? 15 Q. Crazy, nuts, out of the ordinary, stuff 16 like that. 17 A. Some of the big ones would be what I 18 mentioned earlier, the subjective-only 19 complaints, where you've got somebody who is 20 never injured -- or never -- objectively nothing 21 wrong, never misses work, still working for you, 22 and you end up with a large industrial award. 23 50, 60, 70 percent, some of those type of 24 claims. 25 Q. I take it you do not agree that soft HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 236 (DEPOSITION OF TODD BERESFORD) 1 tissue injuries can result in disability; is 2 that right? 3 A. No, I did not say that. 4 Q. Well, you told me that you wanted only 5 objective findings. Are there objective 6 findings in most soft tissue cases? 7 A. A lot of times in soft tissue, no. 8 Q. So if there was no objective findings, 9 10 11 then you would not want that person to have any workers' compensation; is that correct? A. Not in all situations, no. I'm saying 12 it's concerning when there are no objective 13 findings and an employee remains in your employ, 14 working full duty, and you end up with a large 15 award. 16 Q. Yes, that is concerning. Well, you told me that people get 50, 17 60 percent under those circumstances. 18 asked you for the name of some case that you 19 knew where that had happened. 20 give me that? 21 22 23 A. I think I Are you able to I don't have them off the top of my head, no. Q. Look at Exhibit 85, if you would. 24 "Larry" is Larry Johnson, I'm pretty sure. 25 not absolutely sure, though. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I'm cq 1 2 237 (DEPOSITION OF TODD BERESFORD) Do you know whose handwriting that is? 3 A. No, I do not. 4 Q. Look at the next page. 5 fax numbers at the top? 6 are? Do you see the Do you know whose those 7 A. I do not. 8 Q. And if you take a look at this, this is 9 about the surveillance issue. The reason I 10 bring this to your attention is because it 11 appears to be kind of the same as the Exhibit 12 69. 13 in this document, which is Exhibit 85. 14 I'm wondering if you had any role to play A. I am not sure if this was something 15 from the Self-Insurers Association. 16 be -- It could have been. It could I do not recall. 17 Q. Do you know who Nicole C. could be? 18 A. Nicole C.? 19 Q. Yes. 20 A. I don't think I know a Nicole C. 21 Q. At this moment this does not look 22 familiar to you, "this" being Exhibit 85? 23 A. This does not look familiar to me, no. 24 Q. Do you know whether or not Commissioner 25 Godfrey is a good friend of Larry Walshire? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 By cq 238 (DEPOSITION OF TODD BERESFORD) 1 that I mean is he a better friend to Larry 2 Walshire than he is to Mr. Heitland or 3 Mr. Cramer? 4 5 A. I have no knowledge of his personal relationships with any of the commissioners. 6 Q. All right. In your Exhibit 69 you say 7 that 8 over the past several years; correct? 9 10 11 has been the most liberal deputy A. Yes. I think that's a common thought of most practitioners. Q. Well, over how many years? What did 12 you say in terms of the number of years? 13 forgotten. 14 A. 15 16 I've I would say ever since I started he has been known as one of the most liberal deputies. Q. How many commissioners have been 17 commissioner since you were appointed? 18 Iris, Mike Trier, and Godfrey; correct? We had 19 A. That is correct. 20 Q. I think I asked you this already. 21 you think that Commissioner Post was biased 22 against employers? Do 23 A. No, not to my knowledge. 24 Q. Did she ever take any action against 25 Deputy for any decision that he made, HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 239 (DEPOSITION OF TODD BERESFORD) to your knowledge? 2 A. I am not familiar with any disciplinary 3 action. 4 do not know what she did or did not do. 5 6 Q. Obviously I'm not in the agency, so I Mike Trier, did you think he was biased against employers? 7 A. I think he was a little more liberal. 8 A little more liberal commissioner, I would say. 9 Yes. 10 11 12 13 14 Q. So he was biased against employers? You can't be liberal and -A. No. I said -- I did not say biased. said I think he was a little more liberal. Q. I asked biased. I said to you was Mike 15 Trier, in your opinion, biased against 16 employers? 17 A. Biased? 18 Q. You can be more liberal and still be a 19 I would say no. fair person; correct? 20 A. That's correct. 21 Q. You can be more conservative and still 22 be a fair person; correct? 23 A. That's correct. 24 Q. So do you know whether or not Mike 25 I Trier ever disciplined for any of HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 240 1 the decisions that he made with which Mr. Trier 2 may have disagreed? 3 A. I have no personal knowledge. 4 Q. During the administration of Iris Post 5 and of Mike Trier -- well, I think we've already 6 discussed this with respect to Iris, but did 7 Mike Trier delegate appeal cases? 8 A. Yes. I recall him delegating cases. 9 Q. Did you interact with Commissioner 10 Godfrey from December 29th, 2010, until he left 11 the agency? 12 A. I don't recall having specific 13 conversations, other than, you know, casual 14 greetings when we saw each other at certain 15 events. 16 Q. Do you know if he had any difficulty 17 during his confirmation related to his sexual 18 orientation? 19 A. Do I know if he had what? 20 Q. Difficulty because of his sexual 21 orientation during the confirmation process in 22 2006, 2007, and 2009. 23 A. I was not aware of that, no. 24 Q. You never discussed it with him? 25 A. I did not, no. HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) Q. 241 Do you know how much of the cost of 2 doing business is attributable to workers' 3 compensation? 4 A. The cost of business? 5 Q. The cost of doing business in the state 6 of Iowa. 7 in the state of Iowa is attributable to workers' 8 compensation? 9 10 A. How much of the cost of doing business I think that's probably going to depend on each individual employer. 11 Q. On average. 12 A. I don't know. 13 Q. Do you share the understanding that 14 Godfrey does not want to lower the cost of doing 15 business in Iowa? 16 17 18 19 20 21 A. I can't speak for Mr. Godfrey on that aspect. Q. Can a commissioner lower the cost of doing business in Iowa? A. Can a commissioner lower the cost of doing business in Iowa? 22 Q. Yes. 23 A. Well, I think ultimately it could have 24 25 an impact on the cost of the business. Q. How? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 A. 242 (DEPOSITION OF TODD BERESFORD) Higher awards, higher IME costs, things 2 like we've talked about earlier certainly are 3 going to impact your bottom line. 4 if those go up, it's going to increase the cost 5 of doing business. 6 7 8 9 Q. And certainly So you want lower awards and lower IME costs; correct? A. I mean, generally, yes. Obviously a lower award is good, but, you know, we want -- 10 or at least I want, again, what's fair and 11 equitable. And certainly I have a 12 13 disagreement with what maybe has been deemed to 14 be fair and equitable over the, you know, last 15 several years. 16 17 Q. Are business taxes a factor in the cost of doing business in Iowa? 18 A. I'm certain it is a factor, yes. 19 Q. On March 7th of 2012 you met with 20 Mr. Branstad on behalf of the Self-Insurers 21 Association at the Iowa State capitol. 22 remember that? Do you 23 A. Yes, I do. 24 Q. Who was present at the meeting? 25 A. I think we talked about this one HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 243 (DEPOSITION OF TODD BERESFORD) 1 earlier. 2 of a -- what we called a day at the capitol. 3 4 Q. This was -- I think the ISIA had kind You're right. We did talk about this earlier. 5 Were you able to remember 6 specifically anything that you discussed with 7 the governor? 8 9 10 A. No. I told you earlier it was a general conversation on work comp. Q. You talked about Mr. Horbach earlier. 11 Do you know what his job is when he's not 12 serving in the legislature? 13 A. I know he's -- I think he's an 14 insurance agent. I don't know what line of 15 coverage he handles or if he still does. 16 at the time he was in the legislature. 17 believe that was his area. I know I 18 Q. He's an insurance salesperson; correct? 19 A. Salesperson or agent, yes. 20 21 22 I didn't know exactly what. Q. Senator Chapman, is he someone that you know? 23 A. I have met him on one occasion. 24 Q. Do you know what he does outside of the 25 legislature? HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq (DEPOSITION OF TODD BERESFORD) 244 1 A. I do not, no. 2 Q. Do you know that he owns a business? 3 A. I did not know that. 4 Q. Now you do. Does Tysons believe that workers' 5 6 compensation is an undue business regulation? 7 A. Can you repeat that? 8 Q. Yes. 9 10 Does Tysons believe that workers' compensation is an undue business regulation? 11 A. 12 Tyson. 13 Q. I guess I'm not going to speak for If you want to ask me -Let me ask it a different way. Do you believe that workers' 14 15 16 Did who? compensation is an undue business regulation? A. No, I don't. I think it's a necessary 17 regulation for both business and injured 18 employees. 19 Q. 20 21 22 What did employees give up in order to avoid the contributory negligence defense? A. Well, you're going back a long time. mean, the whole -- 23 Q. I wasn't even alive, but I do know. 24 A. Obviously it was the big trade-off 25 for -- your benefits were limited to HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 I cq (DEPOSITION OF TODD BERESFORD) 245 1 compensation, and you're not able to sue outside 2 of the Workers' Compensation Act. 3 4 Q. Do you think that that's a fair compromise for employers and employees? 5 A. Do I think it's fair? 6 Q. Yes. 7 A. I think it's the system we have today. 8 9 Is it always fair? Q. No. Does ISIA have a political action 10 committee? 11 A. We do not. 12 Q. Do you have a 503(c)(4)? 13 A. Yes. 14 Q. And what is that? 15 A. We are a nonprofit association under 16 17 18 the IRS regulations. Q. Do you make contributions on behalf of issues or candidates? 19 A. No, we do not. 20 Q. We already talked about whether Tyson 21 has a PAC, and you don't really know that 22 answer; correct? 23 24 25 A. They have a PAC. I have no knowledge of it other than I know it exists. Q. Let me just be sure, but I think we HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 (DEPOSITION OF TODD BERESFORD) 246 might be done. 2 When the Iowa insurance 3 commissioner reduces workers' comp rates as 4 recommended, does this actually reduce costs for 5 Tysons? 6 A. No, it does not. 7 Q. So if the insurance commissioner 8 reduces rates for people who buy insurance, that 9 doesn't affect Tyson one way or the other? 10 A. That's correct. 11 Q. It only affects people who use the 12 insurance to cover workers' comp? 13 A. Yes. 14 Q. Why did Tysons decide to become 15 16 17 self-insured? A. I can't answer that. before I started at Tyson. 18 Q. Was IBP self-insured? 19 A. Yes, it was. MS. CONLIN: 20 21 That was long I think that's all I have. 22 Do you have anything, Andy? 23 MR. DOANE: 24 (Deposition concluded at 25 No, I don't. 4:40 p.m.) HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 5 6 (DEPOSITION OF TODD BERESFORD) 247 The deposition of TODD BERESFORD is now complete. When transcribed, the original of the deposition and original exhibits shall remain in the offices of Huney-Vaughn Court Reporters. (UNLESS OTHERWISE DIRECTED BY COUNSEL OR THE PARTIES HERETO, THE STENOGRAPHIC NOTES FOR THE FOREGOING DEPOSITION SHALL BE DESTROYED AFTER A PERIOD OF 3 YEARS FROM THE DATE OF TAKING OF SAID DEPOSITION.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910 cq 1 2 3 4 5 6 7 8 9 10 11 12 13 14 (DEPOSITION OF TODD BERESFORD) 248 C E R T I F I C A T E I, the undersigned, a Registered Professional Reporter and Notary Public of the State of Iowa, do hereby certify that I acted as the Registered Professional Reporter in the foregoing matter at the time and place indicated herein; that I took in shorthand the proceedings had at said time and place; that said shorthand notes were reduced to typewriting under my supervision and direction, and that the foregoing pages are a full and correct transcript of the shorthand notes so taken; that said deposition was not submitted for review. I further certify that I am neither attorney nor counsel for, or related to or employed by any of the parties in the foregoing matter, and further that I am not a relative or employee of any attorney or counsel employed by the parties hereto, or financially interested in the action. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day of May, 2015. 15 16 17 18 ________________________________ REGISTERED PROFESSIONAL REPORTER AND NOTARY PUBLIC 19 20 21 22 23 24 25 HUNEY-VAUGHN COURT REPORTERS, LTD. (515) 288-4910