Veteran workers? comp judge fired

The way has been cleared for an elaborate trial in which a veteran judge for the Workers’ Compensation Commission will argue that she was fired for being “too fair” to injured workers.

Eileen Harrison, daughter of U.S. District Judge Henry Woods, contends in a federal lawsuit that her firing from the $72,872-a-year job was orchestrated by a lobbyist for Bentonville retailer Wal-Mart Stores Inc., Gov. Mike Huckabee and others.

Commission officials and the staff have denied the allegations. But in late July, U.S. District Judge Howard F. Sachs turned down the commission’s request for a summary judgment. Sach said the commission failed to prove its claim that Harrison was fired for challenging the constitutionality of Act 796, which radically changed the state workers’ compensation law in 1993. Commission officials also claimed that they fired Harrison because of a backlog of cases more than 90 days old on her docket.

Sachs has recused himself from hearing the case, saying a deposition of his colleague Woods “may have some significance” in the trial. In that sworn statement, Woods said Workers’ Compensation Commission chairman Eldon F. Coffman told him that his daughter was risking her job by “being too fair to claimants.”

On Aug. 11, the Eighth Circuit Court of Appeals named Minnesota U.S. District Judge John R. Tunheim to take over the case. Attorneys in Little Rock say they’re waiting for his court docket to clear before a trial date can be set. Both sides have waived a jury trial, preferring to let the judge decide the case.

Wal-Mart’s influence

Harrison worked for the commission off and on for a decade, joining as a legal adviser on July 10, 1988, and accepting the administrative law judge job on Sept. 2, 1991. She was terminated on Aug. 19, 1998.

The firing, according to depositions by witnesses on both sides, followed months of insistence by Steve Carter, a Wal-Mart lobbyist, that Harrison or Coffman or another judge considered friendly to labor would have to go. Carter had authored many of the 1993 changes in the worker’s comp law.

Among thousands of pages of sworn depositions are allegations that Wal-Mart, through Carter, strong-armed the government to ensure Harrison and others remained friendly to management. There are allegations that pressure also came from other members of the Arkansas Self Insurance Association (ASIA), including Brent Stevenson, a representative of Georgia Pacific Corp.

The complex case turns on pivotal conversations among Coffman, Carter and the governor’s staff, in which Coffman concedes he was told by the Wal-Mart lobbyist to change his opinions or resign.

Coffman declined to discuss the case for this article or to say whether he felt threatened by Carter’s approaches.

“I don’t think I even replied,” he said in a pretrial deposition, referring to Carter’s demand for his resignation.

Harrison also has declined to be interviewed. She filed suit against Coffman; Michael K. Wilson, the commissioner appointed to represent management; and the full commission on Oct. 28, 1998. Her suit claims the firing violated her First Amendment right to free speech and curtailed her independence as a judge.

Her attorneys, John T. Lavey and John Burnett, said her firing was meant to have a “chilling effect” on the 12 other judges at the commission.

Chilling decisions

Commission officials contend Harrison’s future turned on the case of a 29-year-old machine operator whose arm was mangled when she tried to reattach a cooling hose at Binkley Co. in Dumas. The opinion, in which Harrison questioned the constitutionality of one section of Act 796, was written more than a year before she was fired.

Tracy Reddick, who had an 11th grade education, worked the 7 a.m.-to-3 p.m. shift running a machine that inserts a cap into the end of a metal rod.

Reddick said that the cooling hose often came loose. Each time, she complained, she had to reach inside the machine to attach it. Binkley officials insisted they warned her to turn off the machine before reaching inside. Reddick said her arms were too short to reach the emergency stop button.

On March 1, 1996, her dampened sleeve snagged on the machine’s inner workings, which crushed her forearm and lacerated her spleen. Reddick was rushed to Delta Memorial Hospital, where emergency room workers took urine and blood samples.

The tests revealed marijuana residue. Reddick’s attorney, Sheila Campbell, said the evidence showed only that the marijuana had been ingested sometime within 30 days of the accident. Reddick insisted she’d stopped smoking pot a year earlier.

Either way, Campbell argued, Reddick was the victim of a search and seizure conducted without her permission.

Faced with conflicting testimony on whether Reddick was alert enough to have consented to the tests, Harrison turned her sights on the heart of the intoxication provisions of Act 796. She questioned the assumption that employees agree to drug tests when they take a job.

“This section of the Workers’ Compensation Act encourages, legitimizes and endorses suspicionless searches of all injured employees … and therefore implicates the Fourth and 14th Amendments,” she said.

The commission reversed Harrison’s ruling and denied benefits to Reddick on May 15, 1998, saying she should have turned the machine off.

The heat is on

By then, pressure to force an attitude adjustment within the Workers’ Compensation Commission was building from several quarters of state government.

On Sept. 15, 1997, Insurance Commissioner Mike Pickens released an Arkansas State Chamber of Commerce analysis of workers’ comp cases dating back to the 1993 Workers’ Compensation Act. The analysis identified 52 cases in which Wilson — representing management — had issued dissenting opinions in cases which Pat West Humphrey, the labor commissioner, and Coffman, the neutral “swing vote,” had sided together in favor of workers. “If this trend continues, it is inescapable that the economic environment

existing prior to July 1, 1993, will reappear,” Walmsley, co-chair of the chamber workers’ comp committee, warned in the analysis, referring to the effective date of the new law.

“Unfortunately, [Wilson’s] voice appears to be a minority a substantial portion of the time.”

Witnesses, including Coffman, said it was during a series of meetings that began in early 1998 that Carter suggested someone had to be fired.

By April 1998, Coffman said in his deposition, his own head appeared to be on the political chopping block. During discussions regarding commission decisions and rulings by the Arkansas Court of Appeals, business leaders repeatedly voiced fears that the business advantages established by the 1993 legislature were eroding.

At a meeting at the Wal-Mart claims headquarters in Bentonville, Coffman said, Carter stuck his finger in the commission chairman’s face and warned, “Because of your opinions, you should quit as chairperson.”

That didn’t change the way he voted, Coffman insisted, but he did begin reading Wilson’s dissenting opinions before writing his own.

The search for someone to fire, according to various depositions, then turned to the staff of judges who serve as the commission’s front-line hearings officers.

“Mr. Carter wanted the commission to discharge an administrative law judge, and Mr. Carter specifically mentioned that the discharged ALJ should either be Judge Harrison or Judge [Mike] Ellig,” Harrison’s attorneys said in court filings.

Woods said Coffman warned him on April 25, 1998 — during the induction of a judge in Fort Smith — that business interests wanted Harrison fired. Woods said the warning came after Coffman praised Harrison’s work at the commission.

“I must tell you that we’re being pressured by some of the self-insurers and some of the insurance companies to get rid of Eileen — to discharge her or fire her — because they feel she’s being too fair to claimants,” Woods quoted Coffman as saying. “We’re not going to let that happen. I think we can protect her.”

Coffman, in his own sworn deposition, denied making the statement and said he remembers telling the judge that his daughter was doing “fine.”

“I just do not have the same recollection of the conversation,” he said.

According to a brief filed by Harrison’s attorneys, witnesses said Wilson was a vocal participant in the meetings, which extended through May 1998. The attorneys said he repeatedly questioned Harrison’s work and said “his people were agitated about Judge Harrison’s decisions and they wanted her head.”

Marcus Devine, a Little Rock attorney who served as Huckabee’s regulatory liaison at the time, said he reviewed Harrison’s opinions for several months after the complaints from Carter and others surfaced.

Ascribing the pressure to “members of big industry, who happened to be members of ASIA,” Devine wrote a memo to Huckabee informing him of the problem and later drafted a critique of Harrison’s decisions.

“Their concern was much more the erosion of the act than any particular numerical decisions,” Devine testified later.

The axe falls

Julie Benafield Bowman, a former Pulaski County prosecutor, former supervising attorney to the workers’ comp fraud unit for the Insurance Department and former general counsel to the Arkansas Development Finance Authority, was hired at Huckabee’s recommendation to become the commission’s chief executive officer on May 26, 1998.

She said Brenda Turner, the governor’s chief of staff, asked her to review Harrison’s work and then asked for a specific analysis of the Reddick opinion. Bowman confirmed that the judge had declared the drug testing provision in Act 796 unconstitutional.

When Turner suggested the firing in August 1998, Bowman passed it on to Coffman. Together they called her in and fired her.

Coffman has declined to discuss the case for this article. Bowman and David Greenbaum, chief administrative law judge for the Workers’ Compensation Commission, confirmed under oath that Harrison was never told that her rulings were in question or that the backlogged cases on her docket were a problem.

Quoting Greenbaum, Harrison’s attorneys said the firing had a “chilling effect” on all the other administrative law judges. But Bowman flatly denied Harrison’s attorneys’ contention that she was hired in order to fire Harrison.

“No,” she said. “As far as I’m concerned, that’s not true.”