1 WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA 2 __________________________________________ 3 CAUSE NO. 2000-0207 4 5 Debra Stavenjord, 6 Petitioner, 7 versus 8 Montana State Fund, 9 Respondent. 10 11 ******************************************************* 12 TRANSCRIPT OF PROCEEDINGS 13 In-Person Conference 14 Montana State Fund Building 5 Last Chance Gulch 15 Helena, MT 59601 Thursday, April 26, 2007 16 9:00 a.m. 17 Judge James Jeremiah Shea, Presiding 18 ******************************************************* 19 20 21 Reported by: 22 For the Record Reporting Services, LLP PO Box 176 23 Butte, Montana 59701 (406) 498-3941 (Butte) 24 (406) 461-5264 (Helena) 25 Page 2 of 134 1 APPEARANCES OF COUNSEL: 2 3 For the Petitioner: 4 Thomas J. Murphy Attorney at Law 5 P.O. Box 3226 Great Falls, MT 59403-3226 6 Amicus Curiae 7 For the Respondent: 8 Bradley J. Luck 9 Attorney at Law PO Box 7909 10 Missoula, MT 59807-7909 11 Thomas E. Martello 12 Special Assistant Attorney General Montana State Fund 13 PO Box 4759 Helena, MT 59604-4759 14 15 Also Present: 16 Bill Visser Cris McCoy 17 Nancy Butler Kathy Gowen 18 19 20 21 Julie L. Sampson 22 Court Reporter 23 24 25 For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 3 of 134 1 INDEX: 2 3 EXHIBITS: DESCRIPTION: PAGE: 4 1 PowerPoint Presentation . . . . . . . . 3 5 2 Notification Letter . . . . . . . . . . 3 6 3 Questionaire. . . . . . . . . . . . . . 126 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 4 of 134 09:17 AM 1 2 PROCEEDINGS 3 (Exhibit Nos. 1 and 2 were marked for 4 identification.) 5 THE COURT: We are on the record in the 6 matter of Stavenjord versus Montana State Fund. 7 This is the time set for a conference to address 8 the factual aspects of the Supreme Court's remand 9 order to this Court, both from the standpoint of the 10 original order and the order denying rehearing, which 11 was the remand to the Workers' Compensation Court for 12 further proceedings to include the determination of 13 an appropriate procedure by which potential 14 Stavenjord beneficiaries will be identified and 09:17 AM 15 notified of their interests, as well as in 16 determining whether it will be impracticable or 17 impossible for the Court to comply with the remand 18 order without assistance of common fund counsel. I 19 think those things kind of dovetail it. 20 There have been filings by the Montana State 21 Fund regarding the procedures and the parameters and 22 issues that may arise. Mr. Murphy was invited by the 23 Court to file an amicus reply to that, which he did. 24 State Fund in turn filed a reply to that, and we are 25 here today to kind of address the practicalities. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 5 of 134 09:18 AM 1 And I think we'll begin with State Fund has a 2 PowerPoint presentation to kind of expound on what's 3 been filed, I'm assuming is what it is. And so we'll 4 just kind of go with that and then kind of take it 5 from there. 6 MR. LUCK: Thank you, Your Honor. 7 Your Honor, We are here today to show from a 8 factual standpoint that it's not impracticable or 9 impossible for the State Fund to properly identify 10 and notify potential Stavenjord beneficiaries. 11 We understand from the Court's direction that 12 this is not a time for legal argument, and we don't 13 intend to present any legal argument. What we would 14 like to do is fashion a factual presentation that 09:19 AM 15 meets the interests and concerns of the Court, and in 16 that regard we hope that it is inclusive, because we 17 need to note at the outset that we disagree with 18 Counsel for Stavenjord's suggestion that this be the 19 first of many steps. We believe that we have 20 properly provided information on two occasions, it's 21 been responded to. We are here to present an 22 explanation of that information and answer any 23 questions we can. 24 We do believe that when we finish here today our 25 hope is that the Court will be in a position to make For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 6 of 134 09:19 AM 1 the factual determination that was required -- the 2 limitted factual determination required by the remand 3 direction. 4 We asked the Court for a prehearing conference 5 -- next page, just go ahead and move with it -- 6 because we were concerned about what the Court would 7 like to see and what information we would have to 8 present that would answer any questions beyond the 9 data and information that was provided in the 10 reports. What we did is we got together with both 11 legal staff and claims experts and fashioned for you 12 the presentation that we have in the hopes that it 13 will cover the bases that are appropriate and explain 14 what we have had in our reports and allow for 09:20 AM 15 inquiry, and hopefully with the people we have 16 present here today, answer those -- any questions you 17 might have. 18 We believe that the testimony of Cris McCoy and 19 Bill Visser will verify the position that we've taken 20 from a practical -- from a factual standpoint that 21 it's not impracticable or impossible to meet the 22 remand direction by any means. 23 Cris and Bill are the designated internal 24 contact persons on the Stavenjord project. 25 Internally the adjusters have been directed to send For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 7 of 134 09:21 AM 1 to them all questions, all issues, all inquiries so 2 that we're funneling information internally to these 3 two people. And as we talk about their qualification 4 and as they explain to you what they have done and 5 what they are doing in this case, I think it will 6 become clear why that's important to the 7 identification and notification process. 8 They have overseen the process, especially of 9 late. And the latest reports and the information 10 were overseen by both of these supervisors. And they 11 will be an integral part of any implementation 12 subsequent to notification and -- identification and 13 notification. 14 We thought this was kind of an unusual 09:21 AM 15 proceeding, and it's obviously kind of an unusual 16 remand situation, but our suggestion with -- to the 17 Court with the hope that we could proceed in this 18 fashion is that we would actually swear both 19 witnesses, qualify both witnesses, and then work 20 through these areas of presentation, primarily asking 21 questions and getting explanations from a particular 22 one of them. But because of the nature of their 23 expertise and an orderly flow of information, maybe 24 the other at that point, on the record and still 25 under oath, could add to that. And especially when For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 8 of 134 09:22 AM 1 the Court has some questions, that might work. If 2 that's okay. I know it's a little unusual. 3 THE COURT: No, I think that makes sense. 4 And like I said, when we had the conference, I mean, 5 I think it is probably going to be most productive if 6 it is at least somewhat of a structured conversation, 7 but more in a conversational tone. I mean, I think 8 that's kind of what we're here to do. It's not 9 necessarily a -- well, obviously it's not a formal 10 hearing or anything like that. So as much as we can 11 try to preserve Julie's sanity so we're not talking 12 over each other and everything. But I think that 13 makes sense. 14 MR. LUCK: What we tried to do is balance 09:23 AM 15 the formality with the logic of moving through as 16 comprehensively as we can from a factual standpoint, 17 Your Honor. 18 THE COURT: Great. 19 MR. LUCK: And certainly, we hope when you 20 have questions, interrupt and we'll try to clarify. 21 We would -- if there is -- to the extent there is 22 going to be any cross-examination type approach to 23 this from Mr. Murphy, if it is okay we would like to 24 work through because we've got a progression of 25 events, and to the extent that there is some For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 9 of 134 09:23 AM 1 examination, perhaps that could be at the end. 2 THE COURT: Okay. 3 MR. LUCK: So, I guess what we would like 4 -- 5 MR. MURPHY: I would like it if that could 6 be a case-by-case thing. I will try not to 7 interrupt, Judge. But I think sometimes there might 8 be some call for some input from this side of the 9 courtroom. 10 THE COURT: I think -- here's what we'll 11 do, is I will consider that on a case-by-case and 12 whether it's something -- I mean, I don't want to 13 kind of -- I don't want to -- I think it would be 14 most productive if we have it, like I said, be as 09:24 AM 15 orderly and as kind of structured as possible, but 16 recognizing that there does -- I also kind of want -- 17 well, I think Brad said, kind of balance the 18 structure of it with somewhat of a conversational 19 thing. 20 So, what I would ask you to do, Tom, is that if 21 there is something that requires, in your mind, some 22 immediacy, address it to me and then I'll say we'll 23 pick that up at the end or go ahead and answer it. 24 Sometimes it may be a question that I may have 25 myself. And as a general rule, I think it probably For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 10 of 134 09:24 AM 1 would be most -- move along smoother if for the most 2 part -- and I think this is what you're basically 3 suggesting anyway, is you will make notes, and 4 obviously there are things that can be picked up at 5 the end. But if there is something before it -- as 6 long as we are on that subject, before we move on can 7 I ask this, Judge, then I'll certainly entertain 8 that. 9 MR. MURPHY: Okay. Thank you. 10 THE COURT: Okay. Go ahead, Brad. 11 MR. LUCK: Thank you, Your Honor. 12 Before we start, I think it's important for 13 prospective purposes to get the timeframe down. We 14 are talking about identification and notification to 09:25 AM 15 implement Stavenjord for potential beneficiaries. So 16 it's important to understand through all of this that 17 the period we are talking about is claims subsequent 18 to June 30, 1987 and prior to May 23, 2001. That's 19 the framework of dates that we are dealing with in 20 terms of implementation issues, notification, and 21 identification. 22 First I would like to call Cris, and maybe what 23 we could do is just have Cris and Bill both sworn at 24 the same time. 25 THE COURT: That's what I was just going to For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 11 of 134 09:25 AM 1 suggest. I think that makes sense, particularly if 2 one may have the need to defer to the other in the 3 middle of their discussion. 4 5 CRIS MCCOY and BILL VISSER, 6 Together having been first duly sworn, 7 testified under oath as follows: 8 9 MR. LUCK: Cris, let's start with you. Can 10 you please present your full name for the record. 11 MS. MCCOY: Cristine, C-R-I-S-T-I-N-E, 12 Ellen McCoy, M-C-C-O-Y. 13 MR. LUCK: Tom, can you hear Cris okay? 14 MR. MURPHY: If you could speak up, Cris, I 09:26 AM 15 would appreciate it. 16 MS. MCCOY: I'll give it my best effort, 17 Tom. 18 MR. LUCK: Cris, How long have you worked 19 for the State Fund? 20 MS. MCCOY: It will be 20 years as of June 21 1st. 22 MR. LUCK: What did you do before coming on 23 with the State Fund? 24 MS. MCCOY: I worked under Judge Bennett 25 with the First Judicial District Court. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 12 of 134 09:26 AM 1 MR. LUCK: How many years did you do that? 2 MS. MCCOY: Seven years. 3 MR. LUCK: Okay. Let's talk about your 4 experience with the State Fund. Can you just briefly 5 take me from the beginning of those 20 years up to 6 the present time and tell me generally the positions 7 and duties you had with the State Fund? 8 MS. MCCOY: Initially Claims Examiner I, 9 which is essentially a beginning claims examiner. 10 From there, Claims Examiner II, which would have been 11 a more experienced claims adjuster, to claims 12 supervisor, and for the last six and a half years 13 project specialist. 14 MR. LUCK: What's involved in the position 09:27 AM 15 of project specialist at the State Fund, at least in 16 relation to your duties? 17 MS. MCCOY: Our primary function is the 18 initiation and completion of court directives 19 regarding common fund litigation, although we are 20 also available to take on special projects for the 21 organization as the need arises. 22 MR. LUCK: So you have taken on all of the 23 litigation and difficult projects the State Fund can 24 dole out to you during those years? 25 MS. MCCOY: Yes. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 13 of 134 09:28 AM 1 MR. LUCK: Tell the Court what common funds 2 or class actions you've been involved with in terms 3 of identification, notification, and implementation 4 of matters. 5 MS. MCCOY: I've been involved in every 6 common fund since Murer began. 7 MR. LUCK: Is that hands-on or supervisory? 8 MS. MCCOY: Hands-on. 9 THE COURT: Brad, let me just interrupt for 10 just one second, then. So, Cris, as a rough 11 percentage is it pretty much 90-plus percent common 12 fund is what you're doing? 13 MS. MCCOY: In its active phases it's a 14 hundred percent of my time. In between the common 09:28 AM 15 funds, then I'm involved in other special projects. 16 They always take precedence over anything else. 17 THE COURT: Thank you. Go ahead, Brad. 18 MR. LUCK: So has the State Fund dedicated 19 your time as a resource to these common fund 20 identification, notification, and implementation 21 projects? 22 MS. MCCOY: Yes. 23 MR. LUCK: You worked on, you say, all of 24 the different common funds, and I assume that also 25 includes the Pinckard class action? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 14 of 134 09:29 AM 1 MS. MCCOY: Yes. 2 MR. LUCK: Which also involved 3 identification, notification, and implementation? 4 MS. MCCOY: Yes. 5 MR. LUCK: In relation to the Stavenjord 6 project that we are here to talk about, you have 7 focused your time on that in recent periods; is that 8 correct. 9 MS. MCCOY: Yes. 10 MR. LUCK: How long have you been involved 11 with the Stavenjord project of identification and 12 leading to notification of potential beneficiaries? 13 MS. MCCOY: We began our initial work in 14 2004, early 2004. At the point we were waiting for a 09:30 AM 15 ruling from the Supreme Court, it essentially was 16 dormant and we didn't do a great deal of work on it. 17 We worked on other common funds, other projects that 18 came down while we were waiting to see what would 19 happen relative to retroactivity. And since that 20 decision has come down, we have been actively working 21 it. 22 MR. LUCK: Is it true also that, especially 23 in relation to Schmill which involves occupational 24 disease claims and Stavenjord, that your efforts 25 would duplicate each other or compliment each other For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 15 of 134 09:30 AM 1 on both of those common funds? 2 MS. MCCOY: They overlap insofar as they 3 are the same claim type, occupational disease 4 exposures. So I have been working them in tandem. 5 As I review a file, if there is a Schmill 6 entitlement, it is currently being paid at the 75 7 percent allowed; and if there are Stavenjord issues 8 attached to that same file, we address those at the 9 same time. 10 MR. LUCK: In relation to Schmill, you were 11 involved in the identification and notification 12 process in that case, also? 13 MS. MCCOY: Yes. 14 MR. LUCK: Bill, how long have you been 09:31 AM 15 with the State Fund? 16 MR. VISSER: Off and on. Mostly on since 17 1977. 18 MR. LUCK: Would you explain to the Court 19 the progression of positions that you've maintained 20 with the State Fund from 1977 forward. 21 MR. VISSER: I have been a field 22 representative of Miles City and Helena, which 23 entails visiting claimants, employers, doctors' 24 offices if necessary. 25 In '78 I started in the office as a claims For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 16 of 134 09:32 AM 1 adjuster. And since then I've held positions of 2 claims supervisor, interim claims manager. In 1993 I 3 was in charge of setting up the fraud unit and I've 4 worked in the fraudulant, managed it until 2000. 5 Then I made a failed attempt to retire, came 6 back and was asked to work on the first common fund 7 effort. I have done that off and on for about three 8 years, and since then I am back full-time again and, 9 like Cris, I'm in special projects. 10 MR. LUCK: Was it the common fund 11 litigation, the process of identification, 12 notification, and implementation that brought you 13 back out of retirement? 14 MR. VISSER: Yeah. That's how that 09:33 AM 15 started. 16 MR. LUCK: So from that time you've worked 17 exclusively on special projects, and now back full 18 time working on special projects? 19 MR. VISSER: Yes. 20 MR. LUCK: What common fund cases have you 21 worked on? 22 MR. VISSER: Murer, Flynn and Pinckard, and 23 now Stavenjord. 24 MR. LUCK: Your focus now, and by direction 25 of the State Fund, is to work with Cris in terms of For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 17 of 134 09:33 AM 1 the identification and notification, and then 2 ultimately in the implementation process? 3 MR. VISSER: Yes. 4 MR. LUCK: Your Honor, what I would like to 5 do with that introduction of the two witnesses is 6 proceed through hopefully in an orderly fashion that 7 builds up to conclusion of the discussion of the most 8 current listing of numbers for potential Stavenjord 9 beneficiaries. But we think it's appropriate to 10 start at the beginning and explain to the Court how 11 that process has evolved since the original factual 12 stipulation was filed in 2004. 13 THE COURT: Great. Thank you. 14 MR. LUCK: And the first part of that, what 09:34 AM 15 we would like to do is explain the information 16 platforms that are relevant to the time periods. And 17 I'm primarily going to talk with Bill about that just 18 to get some foundational background. 19 Bill, understanding that the area of concern 20 here is July 1, '87 to May 22nd, 2001, what 21 information platforms did the State Fund have for 22 computer data on claims? 23 MR. VISSER: DB02 was a data gathering 24 system. We were part of the division of 25 compensation. And they gathered data and we were For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 18 of 134 09:35 AM 1 made part of that. It was not the claims management 2 system, it was very limited in scope. Claims 3 adjustors or claims people could not make any changes 4 or additions into the data for -- until 1988, so it 5 was already five years old. 6 It was basically used by the Department of Labor 7 to gather information from us and others, and as we 8 can see in some of the fields that we could access -- 9 MR. LUCK: Let's stop for just a second 10 until we get the time frame here. So this would have 11 -- this system, the DB02, would have been in place as 12 a data storage information platform for the State 13 Fund, and clearly other entities, for the period from 14 July 1, 1987 through February of 1997; is that right? 09:36 AM 15 MR. VISSER: That's correct. 16 MR. LUCK: Okay. I know you've copied some 17 examples of different data fields that you can show 18 the Court how the system worked. 19 MR. VISSER: Yes. Claims management was 20 off of hard copies. This, for instance, is a 21 printout of claims history which we could access. 22 There were -- here is the reserve sheet, and that's 23 basically the kind of information that was out 24 there. 25 MR. LUCK: We can show that just for For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 19 of 134 09:37 AM 1 demonstrative purposes, let me ask a couple of things 2 about that. As you go through talking about these 3 two systems with the documents that are identified as 4 coming from these systems, if there is something on 5 these documents that can be -- that would maybe have 6 been within the categories that were searchable in 7 the identification process that we are talking about, 8 maybe just show that for example. And if there are 9 -- if there is information on any of these things 10 that you would generate by way of manual review when 11 you did that in the Stavenjord identification 12 process, maybe just point that out as examples for 13 the Court. 14 MR. VISSER: In the previous slide, the 09:38 AM 15 accident had a code which indicated injury. And 16 several years into this system there finally was a 17 field for occupational diseases. So, if we -- 18 THE COURT: Bill, I'm sorry, can I 19 interrupt you just for one second? 20 MR. VISSER: Sure. 21 THE COURT: And I'm just trying to look at 22 this because it's a little small. So where is the 23 indication that it's injury? 24 MR. VISSER: The 01 would be an injury, the 25 03 would be medical only. And if it was a 13 it For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 20 of 134 09:38 AM 1 would be an occupational disease. 2 THE COURT: 13 was the code for 3 occupational disease? 4 MR. VISSER: Yes. 5 THE COURT: Okay. When -- I'm sorry. What 6 I'm wondering is you said several years later you had 7 the code for occupational disease. 8 MR. VISSER: Yes. 9 THE COURT: So when did that start coding? 10 MR. VISSER: About two years after that 11 system came into being. 12 MR. LUCK: Your Honor? 13 THE COURT: Yeah. 14 MR. LUCK: I didn't mean to interrupt but I 09:39 AM 15 think Cris has a clarification. 16 MS. MCCOY: As a point of clarification, 17 the 04 was the appropriate status code. Again, this 18 was a disk operating system with limited field 19 capabilities, so everything was coding. 04 would be 20 the code for an open active wage loss claim. 13 21 would be your status code for an OD. And 01 is a new 22 claim coming in. The 03 signifies an MO. 23 THE COURT: The 03 signifies a? 24 MR. LUCK: Medical only. 25 THE COURT: Oh, medical only. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 21 of 134 09:39 AM 1 MS. MCCOY: I'm sorry. 2 THE COURT: No, that's fine. 3 MS. MCCOY: As an example, if Kathy were to 4 move forward to the next screen that we had 5 available, you can see status at the top towards the 6 middle indicates a 13. That would be an occupational 7 disease exposure. 8 THE COURT: Okay. And this helps me a lot, 9 too, then. So this previous page has no relation to 10 the next page? 11 MR. VISSER: No, no, no. We picked them 12 randomly when we found some. There's not a whole lot 13 around anymore. 14 THE COURT: The bottom there, are those 09:40 AM 15 your initials there, Bill, where it says 2/7/96? 16 MR. VISSER: No. 17 MS. MCCOY: No. Actually, those were Chuck 18 Driscoll's who was our claim manager at that time 19 approving that particular reserve. 20 THE COURT: I see. 21 MS. MCCOY: Is what that signifies. 22 THE COURT: Okay. 23 MR. LUCK: We need to be very careful that 24 you guys don't talk over each other. What we would 25 like to do, and I think with the Court's permission, For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 22 of 134 09:40 AM 1 is do just what we did, have clarifications, provide 2 additional input, but be careful because it's really 3 easy, and it's very difficult for the reporter to 4 take down both -- two people talking. 5 THE COURT: So -- and either one of you, 6 just not both at the same time, what -- so, do you 7 have a recollection as to when was the specific year 8 that in the DB02 system you developed a code 9 specifically for occupational disease? 10 MS. MCCOY: I don't believe that came 11 on-line for the adjustors to utilize until late '91 12 or early '92. We were quite a bit into the 1987 13 legislative changes. 14 THE COURT: Okay. 09:41 AM 15 MS. MCCOY: Because of the protocols that 16 had to be observed, this was actually a State of 17 Montana operating system. Any changes we wanted to 18 make to it had to be ran through ISD and approved. 19 THE COURT: I see. So what would be done, 20 then, as relative to this system between 7/1/87 and 21 when a code -- for an occupational disease, what 22 would have been done between 7/1/87 and when a 23 specific code was assigned in this program for an OD? 24 MS. MCCOY: On the system side we 25 maintained the codes we had used previously to that. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 23 of 134 09:42 AM 1 If it were a wage loss claim, even though it were an 2 OD, it would still be coded 04. 3 THE COURT: Oh, I see. 4 MS. MCCOY: If it was a medical only, it 5 would have been coded 03. When the code became 6 available we relied on people to go in and update the 7 status of their claim. For practical purposes, 8 because we were working off of hard files, we had big 9 ODs written on the outside of the files so people 10 wouldn't miss it while they were working on the 11 file. 12 THE COURT: So, in that period of time, 13 then -- so it was -- when you talk about OD written 14 on the outside of the file in large letters, are you 09:42 AM 15 talking about during that period of time, then, '87 16 through '91, '92? 17 MS. MCCOY: Yes. 18 THE COURT: Okay. Thank you. Sorry. Go 19 ahead. 20 MR. LUCK: Your Honor, this does tie into 21 where we are going to get to in relation to why we 22 had to search the manner we did, because there just 23 isn't a line that is definitive that all the ODs 24 would come out with a particular kind of search. So 25 this leads into the different approaches to try and For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 24 of 134 09:43 AM 1 search for that information. 2 MR. MURPHY: Judge, could I ask a question? 3 THE COURT: Sure. 4 MR. MURPHY: Bill, did you say that the 5 DB02 started coding for ODs two years after it was 6 implemented in 1989? 7 MR. VISSER: I thought after its inception, 8 it's a bit of information I picked up, that 9 capability was added. 10 MR. MURPHY: And that was in '89? 11 MR. VISSER: That was in -- I can't tell 12 you exactly when it was. 13 MR. LUCK: I think Cris can. 14 MR. MURPHY: Because earlier you had said 09:44 AM 15 1989, and I think Cris said 2001. That's what I'm 16 trying to get after. 17 MS. MCCOY: No. Actually, as 18 clarification, Tom, what I said was late '91, early 19 '92. The first actual functionality, if you will, 20 that we were able to add to the DB02 system was our 21 payment processes. So that those would then be 22 electronically recorded. That began in June 1988. 23 That was our first change. The reserve screens, 24 which you see up here, were subsequently added after 25 that. But the code itself to signify an occupational For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 25 of 134 09:44 AM 1 disease didn't come until late '91, early '92. 2 MR. MURPHY: One more follow-up, Judge? 3 THE COURT: Sure. 4 MR. MURPHY: Could you tell me what it was 5 that -- you said you started in 1988? I did misspeak 6 in terms of the date. In 1988 you started 7 electronically recording the fact that it was an OD? 8 MS. MCCOY: No, Tom, it was -- we started 9 electronically recording our compensation payments 10 and our medical payments. 11 MR. MURPHY: As to whether they were OD, 12 injury, or medical? 13 MS. MCCOY: Some we paid -- 14 THE COURT: Let me interrupt for one sec, 09:45 AM 15 because I think this might help, too. We have -- and 16 this is going to be made a copy of this, and 17 obviously it's up on the screen. Is there another 18 copy of the PowerPoint? Because I think a lot of 19 these questions are in that general -- that slide 20 that's the DB02 that talks about -- oh, you have it? 21 MR. MURPHY: I have it. 22 THE COURT: Okay. If you turn back, I 23 think the slide that says the headline DB02. Is that 24 Page 3? Yeah, in there it talks about -- so let me 25 just ask you -- I'm sorry, Cris -- For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 26 of 134 09:46 AM 1 MR. MURPHY: Judge, it looks like you're 2 looking at a different document than I am. This is 3 Page 3. 4 THE COURT: Let's see. No, I think it's 5 just a black and white copy of the same. 6 MR. MURPHY: I see. 7 THE COURT: Yeah. 8 MR. MURPHY: All right. 9 THE COURT: '88 is when the first -- first 10 enhancements of any kind were made to the DB02 11 system. 12 MS. MCCOY: Yes. 13 THE COURT: That was, as I understand it, 14 June of '88, enhancements "to provide some limited 09:46 AM 15 functionality such as indemnity and medical payments, 16 reserving detail, and a limited note field." 17 MS. MCCOY: Yes. 18 THE COURT: Okay. And then moving forward 19 to '91, '92 is the first -- is another enhancement 20 that is made, which is the coding for ODs. 21 MS. MCCOY: To distinguish the occupational 22 disease claims. 23 THE COURT: Okay. Thank you. 24 MR. MURPHY: Thank you. 25 THE COURT: Go ahead. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 27 of 134 09:46 AM 1 MR. LUCK: Anything else in relation to the 2 DB02 by just -- by way of explaining the information 3 platform, that we need to add? 4 MR. VISSER: Well, there were no electronic 5 records of the files. So when the file was closed 6 for three years or so, we would make a microfiche 7 copy. And all these files with the big letters of OD 8 on them slowly, but surely, disappeared. But they 9 are with injury claims all on microfiche records. 10 And for those years a lot of them have to be 11 hand-searched. 12 MR. LUCK: In the original stipulation 13 there was a discussion of the different methods of 14 storing past data. It started with microfilm and 09:47 AM 15 then microfiche and then computer data. Is it 16 correct that for this discussion, for the period that 17 we are talking about for Stavenjord implementation, 18 that the microfilm data is not relevant? 19 MR. VISSER: Not relevant. 20 MR. LUCK: It was used for a prior period? 21 MR. VISSER: Prior, yes. 22 MR. LUCK: Okay. 23 THE COURT: Brad, let me ask one 24 clarification, then. So, for the period from July 25 1st, '87 through the late '91, early '92 when you For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 28 of 134 09:48 AM 1 first started assigning the 13 code for ODs, I assume 2 there's a number of those files that had been -- that 3 where the hardcopy had been purged and it was stored 4 on microfiche, correct? 5 MR. VISSER: Correct. 6 THE COURT: So, how in those files during 7 that period of time when there is no code yet are ODs 8 identified during that period of time, the ones that 9 are on microfiche? I mean, did you copy the front of 10 the file and put that on microfiche so you are seeing 11 OD right at the beginning of the -- I'm assuming when 12 we are talking microfiche it's just like a spool like 13 you would have at the library or something; is that 14 it? 09:49 AM 15 MR. VISSER: No, it was just a postcard 16 size with about 25 images on it. And you slide them 17 through a machine picture by picture by picture until 18 you find what you're looking for. The hardcopy files 19 was filled with notations of what kind of file it 20 was. I mean, there was a sheet that showed the 21 payments, while what we call the fiche, that would 22 say OD. On the first payment that was made it would 23 say OD. So, once you have the microfiche, it is easy 24 to see what it is. If you are not entirely sure, you 25 just start digging in the file further and further For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 29 of 134 09:50 AM 1 until you're absolutely sure what it is. 2 THE COURT: And just through the notations 3 in the file, somewhere there's going to be a 4 reference whether it is either a specific injury or 5 an OD? 6 MR. VISSER: Correct. 7 THE COURT: Okay. Go ahead. 8 MR. LUCK: Now, the obvious -- the obvious 9 concern here is, for our purposes, how we used this 10 system to determine who would be in this list. And 11 that's part of the search function that we are going 12 to talk about, correct? 13 MR. VISSER: Yes. 14 MR. LUCK: Okay. Anything else on DB02? 09:50 AM 15 From a foundational standpoint? 16 MR. VISSER: No. 17 MR. LUCK: In February of 1997 I think you 18 said the State Fund moved to a different 19 informational platform. 20 MR. VISSER: Yeah. We built and had built 21 a claims management system, and CMS is the acronym 22 for it. This was our first real claims management 23 system. It was not just data gathering. This was a 24 system that helped claims adjustors manage the files. 25 Got -- there were informational fields. There was a For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 30 of 134 09:51 AM 1 payment system. You could generate checks off of the 2 computer. There was an optical system attached to 3 it, WMS, which imaged -- showed imaged 4 correspondence. Reports could be generated. And it 5 was a great improvement over anything we had had 6 prior to that. But like I say, it was a claims 7 management system. 8 MR. LUCK: So, as opposed to a data storage 9 system, this was a claims management system? 10 MR. VISSER: Correct. 11 MR. LUCK: We have some representative 12 screens from this system that we'll go through. You 13 might just point out to the Court anything of 14 interest as we work through these. 09:52 AM 15 MR. VISSER: This is a summary screen, and 16 it also shows the part of body which, is always 17 helpful if you are looking for, let's say, an OD. 18 But the real helpful thing is on the next one. No. 19 Yeah. This is the status screen. And as you can 20 see, there is a spot for an injury, there's a spot 21 for the disease. It will tell you if it's a medical 22 only or a wage loss. 23 MR. LUCK: Is that information searchable? 24 MR. VISSER: That is searchable. 25 MR. LUCK: So, for our particular criteria, For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 31 of 134 09:53 AM 1 OD, permanent partial disability, those two boxes 2 would provide data? 3 MR. VISSER: Yes. 4 THE COURT: Okay. 5 MR. VISSER: This is wages -- 6 THE COURT: I'm sorry, could you back up to 7 the slide for one second, there was one question I 8 had there, Bill. So, when this -- this slide is 9 obviously some -- referencing an OD. So what do you 10 use to determine the DOI? Is that the -- 11 MR. VISSER: The date of injury is on the 12 summary. 13 THE COURT: Right. But, I mean, if it is 14 an OD, there's obviously no specific date. So I'm -- 09:54 AM 15 and I know, you know, there are the different legal 16 criteria for statutes of limitations and whatnot, but 17 what I'm wondering is for your CMS system what do you 18 use to enter in the DOI? 19 MR. VISSER: That kind of differs. In some 20 cases it is the first thing that the doctor diagnosis 21 the problem and the claimants or him or her has no 22 idea of when this started exactly, it came on so 23 gradually. Other instances, the claimant will 24 recollect that, you know, the third day on doing this 25 particular type of work, now we more or less know For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 32 of 134 09:54 AM 1 what the date of injury is. But you try to get as 2 close as possible. 3 THE COURT: Gotcha. Okay. 4 MR. LUCK: I would point out to the Court 5 the stipulation that was filed with the Court on 6 January 22nd, 2004, which for purposes of 7 implementation stipulated to the method for the date 8 to be used. And that was the date the claimant's 9 occupational disease is first diagnosed as 10 work-related. 11 THE COURT: Right. 12 MR. MURPHY: I would point out to the Court 13 that there is a question as to whether those 14 stipulations are binding if there isn't a common 09:55 AM 15 fund. 16 MR. LUCK: And I only meant that for 17 informational purposes. 18 THE COURT: Right. And actually that was 19 one of the questions I had, then, is that we have got 20 the stipulation for purposes of Stavenjord, the 2004 21 stipulation, and whether that comported with the DOI 22 that was being entered into the CMS system. The 23 method that was being used to -- because obviously, 24 I'm assuming a lot of these predated any direction 25 from the court or before there ever was a Stavenjord, For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 33 of 134 09:55 AM 1 so I wouldn't expect that, you know, you would have 2 been that prescient to say, oh, down the road here's 3 what we want to be doing. So that's why I had a 4 question as to what were the criteria used to 5 determine a -- or to enter a DOI. 6 MR. LUCK: The date of injury that's used 7 on these records would be the date of injury that's 8 been used throughout the period of the individual 9 claimant's consideration of entitlement; is that 10 correct? 11 MR. VISSER: Yes. 12 MR. LUCK: And when we did our searching, 13 that we are going to talk about in just a second, 14 that component of entitlement date was the 09:56 AM 15 entitlement date that was determined for all other 16 entitlement purposes; is that correct? 17 MR. VISSER: Correct. 18 MR. LUCK: Okay. 19 THE COURT: Great. Thank you. 20 MR. VISSER: This is a screen where it 21 shows how we compute the average weekly wage and a 22 TTD rate and, in this case not the PPD rate, but it 23 does it automatically. And we also have room to make 24 comments if the rate is different and the computation 25 shows. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 34 of 134 09:57 AM 1 MR. LUCK: There's a statement there that 2 appears to be something that's entered 3 discretionarily by the adjustor in relation to 4 apportionment. 5 MR. VISSER: Yeah. 6 MR. LUCK: Now, that field. Tell us about 7 that field. 8 MR. VISSER: That's the override comment, 9 and it shows why the rate is different than the 10 computation showed. So, we would pay only 50 percent 11 of the $125.35 that was, at the time, the TTD rate. 12 MR. LUCK: That's as it relates to the 13 individual claim. In terms of our concerns for 14 getting data to identify potential Stavenjord 09:58 AM 15 claimants, would that kind of a field be helpful? 16 MR. VISSER: That kind of a field would 17 certainly be helpful. Anyway, that is different than 18 the TTD rate is of interest, and that is also an 19 indicator. But, yes, this field is certainly 20 helpful. 21 MR. LUCK: When you are back doing checks 22 on files, is that the kind of field that you would 23 look at manually in assessing whether a case is an OD 24 or not? 25 MR. VISSER: Yes. This is a payment screen For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 35 of 134 09:59 AM 1 that shows when what was paid and for what condition, 2 temporary total or settlements or whatever. All 3 kinds of payments will show what we call the 4 FINCLE_TRAN, the financial transaction. 5 This is an attachment to the status or to the 6 injury screen. And here we can tell what the 7 condition of the claimant is. 8 MR. LUCK: Are the injury statistics 9 searchable by computer search? The field there in 10 the middle? 11 MR. VISSER: You mean accident description 12 or the injury stats? 13 MR. LUCK: It says injury statistics and 14 then it has -- 10:00 AM 15 MR. VISSER: The injury stats, yes. 16 MR. LUCK: So, that would be an example of 17 something, as we get to the searches, that data runs 18 would be searching those field as we are giving 19 different indications of occupational disease claims? 20 MR. VISSER: Yes. 21 MR. LUCK: Okay. Anything else about the 22 CMS system just simply in relation to the foundation 23 discussion of identification of potential Stavenjord 24 beneficiaries other than what you have touched on? 25 MR. VISSER: Uhm, no, other than the files For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 36 of 134 10:00 AM 1 are readily available since they are in an output 2 system. 3 MR. LUCK: Okay. Next, Your Honor, I would 4 like to talk to Cris -- 5 THE COURT: Can I ask one question here? 6 Could you back up to that last slide for just one 7 second. And I think I had a question, I can't find 8 my specific note here, but I think it was DOLI in the 9 attachment, that there was an issue regarding the 10 identification of heart and lung claims. Could you 11 -- 12 MR. LUCK: We are going to talk 13 specifically about that. 14 THE COURT: Okay. I'll just wait until you 10:01 AM 15 get to that. That's fine. 16 MR. LUCK: And really focus on their run 17 and explain how that was taken into account in term 18 of assessing our system. 19 THE COURT: Okay. Yeah, if we are just 20 going to get to it, then I'll just -- I'll wait until 21 we get to that. Okay, we can move ahead. 22 MR. LUCK: Next, Your Honor, what I would 23 like to do is work through the various analyses that 24 were done, beginning with the information that was 25 provided in the original stipulation up to the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 37 of 134 10:01 AM 1 present time leading toward the present numbers, 2 which we believe should be the notification list. 3 Because it's important to see how they built over 4 time. And Cris is going to talk about that. 5 Again, Cris, I want to make sure we are focused 6 on July 1, '87 to May 22nd, 2001. First from an 7 overview standpoint, can you tell the Judge why we 8 can't just press a button and find all the ODs back 9 to 1987 and just be done with it? 10 MS. MCCOY: In theory that can be done. 11 And what it will bring forward is every claim file 12 that was appropriately codes as an occupational 13 disease exposure, whether it existed in DB02 or 14 existed in CMS. The risk is, by limiting your search 10:02 AM 15 to just that one field, you indirectly drop out a lot 16 of other potential claimants that may be just as 17 eligible. Which is why our preference is always to 18 go with a wider, broader array to bring more files 19 forward to insure we minimize the risk of losing 20 someone. 21 MR. LUCK: And in effect that's what we are 22 going to talk about, the design and searches over 23 time to try to establish those separate criteria that 24 will bring forward ODs beyond those that would have 25 been categorized as ODs? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 38 of 134 10:03 AM 1 MS. MCCOY: Yes. 2 MR. LUCK: Again, from an overview 3 standpoint, are you comfortable that the State Fund 4 can and has properly identified the population of 5 potential Stavenjord beneficiaries that we are here 6 to talk about? 7 MS. MCCOY: At this point in time, 8 absolutely. 9 MR. LUCK: From an overview standpoint, and 10 we're going to get pretty specific, can you give us 11 the overview answer of why you believe that's the 12 case? 13 MS. MCCOY: Because we possess both the 14 knowledge base, the skill set, the technical skills, 10:04 AM 15 the familiarity with our business processes and our 16 technology capabilities, as well as multiple years of 17 experience in doing precisely this type of thing 18 successfully. 19 MR. LUCK: In order to -- 20 THE COURT: Brad, let me interrupt just for 21 one sec. When you're talking about the people 22 involved and the experience and skill sets, who are 23 the IT people specifically involved? 24 MS. MCCOY: Our designated IT individual 25 who does the actual queries would be Dave Ogan more For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 39 of 134 10:04 AM 1 often than not, but Bill and I are primarily 2 responsible for developing the parameters that are 3 passed to Dave. 4 THE COURT: Okay. 5 MS. MCCOY: To actually complete the query. 6 MR. LUCK: And it's the parameters in terms 7 of how we describe in different ways occupational 8 disease criteria that develops the listing of 9 potential Stavenjord beneficiaries; is that correct? 10 MS. MCCOY: Yes. Bill and I decide how to 11 define those certain criteria. 12 MR. LUCK: Would you need to be familiar 13 with the State Fund systems and claim handling 14 practices in order to comprehensively design an 10:05 AM 15 approach to check data and information regarding 16 State Fund claims to develop this list of potential 17 Stavenjord beneficiaries? 18 MR. MURPHY: Foundation. I object; 19 foundation. 20 THE COURT: I think this is an evidentiary 21 hearing, so I'll -- I mean, if you -- and you can ask 22 her at the end in terms of, you know, her background 23 and experience relative to this specific question, 24 but go ahead. 25 MR. LUCK: Yeah. Can you answer -- my For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 40 of 134 10:06 AM 1 concern is, and just a direct question, can someone 2 who happens to know computers, and may even 3 understand claims, be able to come in, in your 4 opinion, and design as comprehensive an approach to 5 outlining and identifying potential Stavenjord 6 beneficiaries as you are with your background and 7 experience? 8 MS. MCCOY: If the goal is to achieve a 9 comprehensive population identification, no. 10 MR. LUCK: Why? 11 MS. MCCOY: The other pieces of that are 12 equally as important to the success of achieving that 13 goal. You need to know what data is available, what 14 are our workflow processes, where this data would be 10:06 AM 15 deposited? How is our information stored? What are 16 you even looking for? How would you identify it to 17 know if you got it or didn't get it? Which is also 18 part of what Bill and I do when the initial run comes 19 back. We always do a review to ascertain or verify 20 its validity. 21 MR. LUCK: What does experience actually 22 handling State Fund claims add to the development of 23 the design of the search process? 24 MS. MCCOY: That intimate knowledge of both 25 our tech side, as well as our workflow side. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 41 of 134 10:07 AM 1 MR. LUCK: Is there any particular 2 knowledge or prospective that has been gained as a 3 result of working on previous common funds and class 4 actions? 5 MS. MCCOY: Yes. We grow more efficient 6 and better able to administer these with each one. 7 Each one is a new learning experience that helps us 8 be better at our craft. 9 MR. LUCK: And interpret search results? 10 MS. MCCOY: Yes. 11 MR. LUCK: Did the process that we are 12 going to talk about and the evolution of that process 13 take into account those areas of claim and system 14 experience and knowledge that you talked about? 10:08 AM 15 MS. MCCOY: Absolutely. 16 MR. LUCK: Is that the heart and soul of 17 what it's evolved into? 18 MS. MCCOY: It definitely helps if you're 19 trying to generate a good work product. 20 MR. LUCK: And the point I am trying to get 21 to for the Court is -- 22 MS. MCCOY: I didn't mean to be facetious. 23 I'm sorry. 24 MR. LUCK: No, that's okay. 25 The point I wanted to get to for the Court is, For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 42 of 134 10:08 AM 1 does this process that we're talking about in terms 2 of identifying potential Stavenjord beneficiaries 3 require a computer expert, or more of a State Fund 4 systems and claim handling expert? 5 MS. MCCOY: I believe the State Fund system 6 and claims handling expert would be better suited for 7 this task. 8 MR. LUCK: Let's talk about the processes 9 that we went through over time. 10 THE COURT: Are you doing okay, Julie? 11 Okay. Go ahead. 12 MR. LUCK: First -- and Your Honor, for 13 reference purposes, in the initial statement of 14 stipulated facts from 2004 in Paragraphs 26 to 30 10:09 AM 15 there's an explanation of the initial search. And I 16 thought it would be good to lead up if we started 17 with that and maybe have Cris explain briefly what 18 was done there and how it led to the subsequent 19 searches. Can you do that, Cris? 20 MS. MCCOY: Yes. Essentially what we were 21 attempting to formulate when we did our initial data 22 run on January 24th of '04 is not only searching on 23 the obvious criteria, such as claim classification, 24 differentiating between wage loss versus a 25 medical-only file, but also trying to anticipate if For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 43 of 134 10:10 AM 1 for some reason that notification was either faulty 2 or incorrect, what other characteristics would a 3 Stavenjord file, consistent with the court's 4 decision, look like. How would we find it in our 5 data system if it weren't obvious? And these are the 6 criteria that Bill and I developed jointly. The 7 obvious thing we are going to go for, is it coded as 8 an occupational disease? Bring all of those forward. 9 The other things we felt would help identify any 10 potential hidden claimants were to search on the 11 nature of injury codes. A 990, which you saw in the 12 earlier injury screen, a 990 is an occupational 13 disease in the nature of injury coding. A 562 is 14 disease of the nerves. 10:11 AM 15 THE COURT: Cris, let me just interrupt 16 you. It just occurs to me for my own benefit when we 17 come back, since I'll be probably looking at this and 18 the written record at the same time, so we are 19 looking at -- the screen you're referencing right now 20 is the top slide on Page 9 of the printed out 21 PowerPoint. Okay. I'm just saying that for my own 22 benefit. I'm sorry, go ahead. 23 MS. MCCOY: Okay. And the other parameters 24 that we considered was to query against the source of 25 injury. A 400 code indicates bodily motion as the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 44 of 134 10:11 AM 1 source of the injury. We wanted to look at actual 2 payments made on each and every file, looking for 3 basically an absence of any type of partial payment 4 that they had received, either temporary total 5 disability benefits, perhaps permanent total 6 disability benefits, but no partial disability 7 benefits as indicative of an occupational disease at 8 that point in time. 9 MR. LUCK: This search, which identified 10 from different angles different descriptions or 11 indicia of occupational diseases to try to flush them 12 out, how many files did this identify? 13 MS. MCCOY: This particular run actually 14 brought back, as indicated, 3,099 files. As is our 10:12 AM 15 practice at the State Fund, when I request a data run 16 I have them run it for all claims existing in either 17 database up through the date of the actual run. So 18 what this particular run would have brought forward 19 is anyone with a date of exposure meeting any of 20 these parameters or data fields with the date of 21 exposure up to and including January 24th of '04. 22 What we did then is filtered that list keying to 23 a cutoff point inclusive of May 22nd, 2001. Which 24 reduced our population to the 2,939. 25 MR. LUCK: That's why the two numbers are For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 45 of 134 10:13 AM 1 different? 2 MS. MCCOY: Yes. 3 MR. LUCK: I notice there that you had -- 4 you note 378 claims were identified as settled. At 5 that place in time the legal precedent hadn't been 6 established to conclusively exclude settled claims? 7 MS. MCCOY: No. 8 MR. LUCK: Next slide. 9 Then what did you do after that? 10 MS. MCCOY: We did -- actually, at that 11 point in time we did some very limited initial review 12 of the data we had received on the January 2004 data 13 run while we were waiting for the decision to come 14 down from the Supreme Court. Intervening into that, 10:14 AM 15 because it took a lot longer to come down than we had 16 actually anticipated at the time, Bill and I then 17 became involved in administering the Flynn common 18 fund, which was active then in 2004. And this 19 particular data run more or less went onto the back 20 burner until that decision did come down. 21 MR. LUCK: But there was, based on this 22 screen, some additional additions of potential 23 Stavenjord claims to the list based on a couple of 24 different processes. 25 MS. MCCOY: Independent of what Bill and I For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 46 of 134 10:14 AM 1 were doing, which we also will frequently do as a 2 double check on the quality of the work product, our 3 internal actuary also ran a separate independent run 4 against Data Warehouse rather than our computer 5 system. 6 Data Warehouse is simply a data storage system 7 that would pull from CMS but it has a little bit 8 different slicing-and-dicing capabilities. And Dan, 9 independent of what we were doing, identified what he 10 thought were an additional 18 claims, as indicated on 11 the first line, and then 586 which we rolled into our 12 run. 13 THE COURT: Just for the record, who is 14 that, Dan? 10:15 AM 15 MS. MCCOY: He is our internal actuary, Dan 16 Gengler, G-E-N-G-L-E-R. 17 MR. LUCK: So as I understand it, what 18 happened after the initial search, he came in with a 19 different kind of approach and in that broad sweep 20 came up with the additional potential claims for the 21 list and that ballooned the list to 3,543? 22 MS. MCCOY: That's correct. 23 MR. LUCK: At that point did you believe 24 that that was an over-inclusive list? 25 MS. MCCOY: Yes, we did. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 47 of 134 10:16 AM 1 MR. LUCK: Initially that was to be 2 reviewed but put on the back burner pending a 3 determination by the Supreme Court? 4 MS. MCCOY: It was more the advent of Flynn 5 becoming an active common fund and our need to become 6 involved in that, and that the decision from the 7 Supreme Court was still pending at that point in time 8 that more or less moved this information to the back 9 burner as a lessor priority. 10 MR. LUCK: Did you then become involved in 11 review of data for purposes of the Schmill case? 12 MS. MCCOY: Yes. 13 MR. LUCK: Can you explain to the Court how 14 that progressed and then led to your second search, 10:17 AM 15 that I believe was utilized for data for both common 16 funds? 17 THE COURT: Brad, so it's clear for me 18 again, the slide is the top slide of Page 10. Go 19 ahead. 20 MR. LUCK: First -- 21 THE COURT: Brad, since we are moving to 22 the second search here it would be a good point to 23 take about five minutes. 24 MR. MURPHY: Thank you. 25 For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 48 of 134 10:17 AM 1 (A brief recess was taken.) 2 3 THE COURT: Go ahead, Brad. 4 MR. LUCK: Cris, when we broke we were 5 transitioning between that first search and the 6 second search. But before we talk about that, can 7 you put it into context timing-wise what was going on 8 with your work for identification and notification in 9 relation to the Schmill case during that period and 10 how did that blend in with your Stavenjord efforts. 11 MS. MCCOY: When we were doing the initial 12 data development in 2004 it was anticipatory that the 13 focus would be on Stavenjord, and that Schmill, given 14 their overlap, would then become a subset of the 10:26 AM 15 population we identified for Stavenjord. So we could 16 essentially use that particular data run to hopefully 17 meet both needs. 18 As things turned out, Schmill was actually 19 decided first before Stavenjord occurred, and at that 20 time Bill and I discussed it between us; made the 21 decision that given the 18 months that had passed we 22 wanted a new run, in addition to the 2004 run that we 23 had previously done. In this particular instance, 24 though, our query was the same premise, we wanted it 25 to be overly broad, preferring to have more files For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 49 of 134 10:27 AM 1 that ultimately would not qualify, rather than risk 2 that our parameters were too narrow and inadvertently 3 drop out people who should have been qualified. 4 So same premises in place, but these parameters 5 we wanted to run against in 2005 carried more 6 elements that would help us more readily identify 7 potential Schmill files. Which then would carry over 8 as potential Stavenjord files, as well, with the same 9 overlap. Which is why you would see the addition of 10 a number of the same parameters we had used in 2004, 11 but this time we included that we run against data 12 fields in the financial transaction list looking for 13 whether there was an apportionment detail. Which we 14 were able to do on our financial transactions. Which 10:28 AM 15 would basically say this is in fact a Schmill file 16 that would be entitled to additional benefits. We 17 queried against our offset screen, which has a data 18 field to indicate whether there is an apportionment 19 on file. Again a good indicator this would be a 20 Schmill file. 21 We maintained occupational disease status on the 22 injury screen, as well as a claim classification. 23 Expanded our search a bit more this time around to 24 also include anything that referenced disease, 25 respiratory, or nervous system, to pull those files For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 50 of 134 10:29 AM 1 forward, and as a source of injury, bodily motion, 2 infectious or dust, again hoping to catch a wider 3 group of files meeting our criteria that could then 4 be reviewed saying no permanent partial disability 5 benefits had ever been paid on the file indicative of 6 an occupational disease, but also to, again, query 7 the financial transaction list to see if any of the 8 payments contained an expense code type of 9 occupational disease award. 10 The last thing we were looking for, which again 11 would be indicative of an apportioned file, is that 12 the query would compare the data field where we store 13 the social security offset rate information, compare 14 it to the rate that was actually used in payments, 10:30 AM 15 which was a separate detail available to us; and if 16 the offset rate used is less than the calculated rate 17 in the system to bring that file forward, our 18 practice through the years since 1987 is when files 19 were apportioned we applied a corresponding 20 apportionment to the offset rate, as well. And with 21 this we were confident that we would get a good pull, 22 again over-inclusive of Schmill entitled files. 23 MR. LUCK: These searches and these various 24 ways to approach things, especially in relation to 25 the financial transactions, did they cross the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 51 of 134 10:31 AM 1 boundries for our entire time frame that we are 2 talking about and both systems? 3 MS. MCCOY: It was again both systems, one 4 of the distinctions with this second run is it would 5 have brought forward any file existing in the system 6 as of June 14th, 2005. So again, we then directly 7 expanded it simply by the date range. 8 THE COURT: Why did you -- I mean, I 9 understand June 14th, 2005 was the date of the run, 10 but why did you go beyond the May 22nd, 2001 -- well, 11 and I mean -- the parameters defined by Schmill and 12 Stavenjord? 13 MS. MCCOY: Part of it is it has always 14 been our practice to do it, but the other part is 10:32 AM 15 also what is a piece of my position with the State 16 Fund. As part of the claims expert team, we are also 17 tasked with quality assurance for the claims 18 adjusters. So I have habitually always gone over and 19 above when we are doing data runs for common funds to 20 also identify files meeting this same criteria so I 21 can also do, from a quality assurance standpoint, 22 some prospective over site to ensure this is 23 translating through our staff into our prospective 24 adjusting of claims. That we continue to be 25 compliant with the decisions. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 52 of 134 10:32 AM 1 THE COURT: I see. 2 MR. LUCK: So you're verifying that, even 3 though there are claims that aren't subject to common 4 funds, that they are being handled properly? 5 MS. MCCOY: Yes. 6 THE COURT: I see. 7 MR. LUCK: Back to my previous question. 8 We talked about the DB02 and the differences between 9 CMS. Did this run come at the available DB02 data 10 from additional perspectives to identify potential 11 Stavenjord beneficiaries than the first run? 12 MS. MCCOY: Yes. The same parameters were 13 applied to the data fields in DB02 to bring forward 14 any file meeting any one of these criteria. 10:33 AM 15 MR. LUCK: So the number 4,797, given the 16 breadth and the time frame, was certainly 17 over-inclusive? 18 MS. MCCOY: Yes. 19 MR. LUCK: Then what did you do? 20 MS. MCCOY: Once we had established this 21 run, Bill and I then went through a process of doing 22 a limited electronic review of each file identified 23 in the second run we had done in 2005 to determine 24 whether or not it was in fact appropriate to include 25 in the Stavenjord population, appropriate for For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 53 of 134 10:34 AM 1 inclusion in the Schmill population, or whether, even 2 though it had met a criteria, it applied to neither. 3 As an example, we might have hit one of our filters, 4 i.e., respiratory. But when we did the electronic 5 review of the actual claim file in CMS, it would be 6 an injury. So then it would be excluded from our 7 common fund -- our potential common fund populations 8 with that reason attached to it, that it is in fact, 9 on review, an injury. Not meeting what we need for 10 our purposes. And we began a process of going 11 through each and every one that we had identified on 12 that list and allocating it according to what the 13 ultimate conclusion was. 14 THE COURT: So, just to clarify in my own 10:35 AM 15 mind is, the example you're using would be something 16 where one of the search parameters or search flags 17 that you used was respiratory, and it would have been 18 -- this would have been an example of something that 19 would have been coded as a specific injury but 20 because it had a reference to respiratory in it, it 21 got caught up in the net. But then when you looked 22 at the specific instance, it might have been somebody 23 who got a -- on a particular day a big dose of carbon 24 monoxide or something like that. 25 MS. MCCOY: Exactly right. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 54 of 134 10:35 AM 1 THE COURT: Okay. Thank you. 2 MR. LUCK: And the same would be true of a 3 denied claim. It could have come up through one of 4 the filters, but upon electronic search it was a 5 claim that had been denied. Is that -- 6 MS. MCCOY: Generally speaking, no. The -- 7 once we had done the initial data run, we would also 8 apply -- because it runs the entire database on both 9 sides. Once all of that information is brought 10 forward, we would apply exclusionary criteria, as 11 well, which is what is listed at the bottom. We 12 excluded any denied claims. We excluded all 13 medical-only claims because they will not -- we know 14 they will not meet our criteria. If there were a 10:36 AM 15 disputed settlement on the file, it would be 16 excluded. 17 MR. LUCK: So, that's the list of the 18 exclusionary criteria, then. 19 MS. MCCOY: Yes. 20 MR. LUCK: Okay. 21 THE COURT: We are referring to the bottom 22 slide on Page 10. So, go ahead. 23 MR. LUCK: Then what did you do and what 24 were the results? 25 MS. MCCOY: Once we had done the initial For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 55 of 134 10:37 AM 1 electronic review to be able to determine what 2 exactly our population comprised of, how many were 3 actual ODs, from there we further filtered those 4 particular files down into which ones were in fact 5 settled files, based on the review. Each file, all 6 4,700, were run through the Social Security death 7 index so we could verify anyone who might be deceased 8 but it didn't show on our file. In that advent they 9 were segregated into their own separate little tab, 10 and injuries were just excluded to a tab to 11 themselves. 12 At the end of this process, what Bill and I had 13 determined is there were 348 files remaining where 14 there was insufficient electronic data available for 10:38 AM 15 us to review to make a call as to whether they should 16 appropriately be included or excluded. And at that 17 point, Bill undertook the task of pulling the 18 microfiche files for each and every one of those and 19 doing a review to determine where they should be 20 placed. 21 MR. LUCK: Let me interrupt you at that 22 point. We are looking now at the slide at the bottom 23 of Page 11 of Exhibit 1. This is the results of 24 prior to manual review of the 348 claims of your 25 refinement process? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 56 of 134 10:38 AM 1 MS. MCCOY: Let's see. That was the end 2 result. 3 MR. LUCK: Then the next slide relates to 4 those 348 claims that we spoke of that required 5 manual review; is that correct? 6 MS. MCCOY: Yes, and then how they were 7 subsequently allocated. 8 THE COURT: Top slide of Page 12. I'm 9 sorry, go ahead. 10 MR. LUCK: That review has been completed 11 and this is a result of that review? 12 MS. MCCOY: Yes, it is. 13 MR. LUCK: So we took the 3,017 that 14 included the 348; and after the review of those 348, 10:39 AM 15 51, as indicated from the review results, were 16 subtracted from the Stavenjord notice list; is that 17 correct? Is that how that works? 18 MS. MCCOY: They weren't specifically -- 19 the injuries were specifically excluded from the 20 notice provisions. The two settled files, two 21 deceased files were then moved to those appropriate 22 tabs pending a decision of whether notice will be 23 sent to them. And then the remaining 297 that are in 24 fact occupational disease claims were added to the 25 list of those we know for sure we want to send notice For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 57 of 134 10:40 AM 1 to. 2 MR. LUCK: So we know settled claims are 3 out. Okay. So, I just want to interpret the slide. 4 After that review, other than deceased claimants in a 5 special category, the Stavenjord notice list 6 following this refinement would now be at 2,966? 7 MS. MCCOY: Yes. 8 MR. LUCK: If we added the category of 9 individual claimants that we know are deceased and 10 send them notice, that would raise the notice list to 11 3,072? 12 MS. MCCOY: Yes. 13 MR. LUCK: And as we indicated in our 14 report, and we can talk about it later, Your Honor, 10:41 AM 15 we just included that back in. We are not sure when 16 we get responses and how to follow up on it, but for 17 our gross over-inclusive notice list this would be 18 the total at this point including those that we have 19 identified so far as being deceased. 20 THE COURT: Okay. 21 MR. LUCK: Cris, are you comfortable that 22 these number are a proper list of identifiable 23 potential Stavenjord beneficiaries? 24 MS. MCCOY: I'm confident that the list is 25 probably over-inclusive containing people who likely For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 58 of 134 10:41 AM 1 in the long run will not qualify, but confident we 2 have everyone who would in fact qualify and should be 3 noticed. 4 MR. LUCK: We talked about this refinement 5 process. Were you making subjective unreviewable 6 decisions, or was that refinement process part of the 7 objective -- an objective application of record fact? 8 MS. MCCOY: From my perspective it is 9 objective, it is reproducible to people looking at 10 the same set of facts should reach the same 11 conclusion. 12 MR. LUCK: For instance, the decision to 13 take out the 47 injuries, that was by looking at each 14 one of those files and seeing that the claim had been 10:42 AM 15 handled as an injury as opposed to an occupational 16 disease? 17 MS. MCCOY: We verified it was in fact an 18 injury based on the description of injury, the file 19 handling notations by the adjustor, before it was 20 allocated to injury and excluded. 21 MR. LUCK: So it wasn't a judgment call. 22 MS. MCCOY: No. 23 MR. VISSER: What we really looked for was 24 acceptance letters in the file, whether or not an 25 occupational disease panel was involved, all that For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 59 of 134 10:43 AM 1 kind of information. 2 MR. LUCK: That hands-on review was done by 3 you, and you went to the data source and actually 4 went through the file to look, -- 5 MR. VISSER: Page-by-page. 6 MR. LUCK: -- for instance on that 7 category, something definitive, a position taken by 8 the State Fund that that case was being handled as an 9 injury and not as an OD? 10 MR. VISSER: Correct. 11 MR. LUCK: Same question to you, Bill, 12 based on your involvement in this identification 13 process are you comfortable that these numbers 14 represent a proper list of identifiable potential 10:43 AM 15 Stavenjord beneficiaries? 16 MR. VISSER: Definitely. 17 THE COURT: Can I ask, what -- and either 18 one of you. What about -- I imagine in this search 19 there were some that, even with the search parameters 20 where -- I know I have had cases come before me where 21 there is a dispute possibly between two insurers 22 whether somebody is suffering from an OD or a 23 specific incident. Did that come up in the search 24 where it was looking where it's maybe on the -- in 25 the factual review was not exactly clear whether this For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 60 of 134 10:44 AM 1 was, say, somebody who, because of the medical, had 2 -- over the course of years had repeated back 3 problems and then ultimately has an L-5-S-1 disk and 4 in the medical it's undetermined whether it would 5 constitute degenerative disk disease or on that 6 specific day the disk blew out. I'm just trying to 7 see how that was -- if it came up, and if so, how 8 that was addressed. 9 MS. MCCOY: To specifically answer your 10 question, as Bill indicated, what we would rely on 11 are the facts documented to the file, which would not 12 be equivocal. We either would accept this file as an 13 injury and handle it accordingly, or it was clear 14 that it is an occupational disease, it is being 10:45 AM 15 adjusted as an occupational disease. But as further 16 clarification, as a matter of practice when we are 17 going through the process of determining inclusion, 18 exclusion, our practice is always to err on the side 19 of caution. In order to exclude a file we need a 20 valid verifiable reason that it's being excluded. If 21 there is any question involved, it's automatically 22 included. I would rather have one that doesn't 23 belong in than inadvertently exclude one that should 24 have been there. 25 THE COURT: Okay. Thank you. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 61 of 134 10:45 AM 1 MR. VISSER: A little more into the 2 scenario you just painted, using the results in the 3 claim shifting from occupational disease to injury, 4 and not the other way around. 5 THE COURT: Okay. Thank you. 6 MR. LUCK: So those 297 on manual review, 7 we would have erred on the side of inclusion in that 8 category to maintain over-inclusiveness? 9 MS. MCCOY: Definitely. 10 MR. LUCK: I want to speak next to the 11 Department of Labor review. Bill, first a question 12 to you and then a question to Cris. 13 The Department of Labor reviewed the process, 14 and the letter that they wrote, it was attached to 10:46 AM 15 our initial report. 16 First, I want to talk -- ask you a question 17 about background. The data that the Department of 18 Labor has, is that State Fund data? 19 MR. VISSER: Yes. 20 MR. LUCK: So they don't have data that's 21 separate from what's in the systems that you were 22 searching? 23 MR. VISSER: Correct. 24 MR. LUCK: And whatever they have was 25 provided by you, so any search you did, corresponding For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 62 of 134 10:47 AM 1 to any search they did, would have been of identical 2 data; is that right? 3 MR. VISSER: Yes. 4 MR. LUCK: Okay. They did a gross search 5 and provided you a printout of potential occupational 6 disease claims. Did that assist you in your 7 identification process? 8 MR. VISSER: No, it didn't. 9 MR. LUCK: Why? 10 MR. VISSER: The search criteria were such 11 that it included medical-only claims, denied claims, 12 injury claims, settled claims. If you search through 13 a database on one particular source of injury, you 14 get an overbroad population without applying some 10:48 AM 15 companion parameters or some exclusionary criteria. 16 So we looked at approximately -- a little over 1,100 17 claims from that list. 18 MR. LUCK: What did that indicate to you? 19 MR. VISSER: That told us that we 20 identified in our searches approximately 100, and I 21 think it was 90 claims more than were -- than the ODs 22 on the Department of Labor list. Secondly, we did 23 not find any addition for our list. They did not 24 come up with any claim out of that 1,100 that would 25 be a potential Stavenjord claim. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 63 of 134 10:49 AM 1 MR. LUCK: What did that tell you in 2 relation to their search and your search of the same 3 data? 4 MR. VISSER: That you have to put some 5 parameters on the search. I am more confident that 6 we did -- or I'm sure we caught more people in our 7 searches than the Department of Labor printout 8 could. 9 MR. LUCK: But if you both were searching 10 the same data, you found theirs to be absent of 11 exclusionary criteria and you identified 12 substantially more claimants that might be entitled 13 to Stavenjord benefits. Does that -- since you were 14 working on the same database, does that mean your 10:50 AM 15 process was superior? 16 MR. VISSER: Absolutely. 17 MR. LUCK: Cris, you were part of the 18 analysis. Is that accurate from your standpoint? Or 19 am I using the wrong words? 20 MS. MCCOY: I probably would characterize 21 it as ours was more comprehensive. What I noted in 22 reviewing the data run that DOLI had sent over to us 23 is we essentially used the same source of injury and 24 nature of injury codes. When the data runs were 25 being completed, we augmented our search with the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 64 of 134 10:50 AM 1 further parameters, say, looking at payment histories 2 or status, those types of things, to give us a 3 broader population. 4 As Bill indicated, we went through approximately 5 1,100 of the files just to see what was different in 6 terms of their number versus ours, because it was so 7 huge. The first thing that we noted immediately is 8 the absence of any form of exclusionary criteria, 9 which automatically inflates your number. Nothing 10 was excluded. 11 The other thing that was of interest to us is 12 the same thing we discussed earlier, where it -- in 13 reviewing the actual file on-line it was clear which 14 of their particular codes had been tripped to bring 10:51 AM 15 that file forward; but in reviewing in the State 16 Fund's database, we had the same file but it had 17 actually been accepted as an injury because it met 18 the definition for either a single shift or traumatic 19 happening. Where they had it out there as a 20 potential OD. 21 And the other thing of interest that Bill and I 22 noted is that we had a significant number of 23 additional claims that were not reported on the DOLI 24 occupational disease list, suggesting again that our 25 search was overbroad and we have at least 197 people For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 65 of 134 10:52 AM 1 that don't belong there, or ours is in fact more 2 comprehensive. It minimized the possibility that we 3 excluded someone who should have been include. 4 MR. LUCK: So by -- 5 THE COURT: So -- Brad, let me interrupt 6 just for one second. So, if I understand it, then, 7 theirs did not have parameters specific enough that 8 inflated their number; is that right? 9 MS. MCCOY: It's the exclusionary criteria. 10 As I said, we excluded all medical-only claims. We 11 excluded denied claims. We excluded anything that 12 was settled as a disputed liability. 13 THE COURT: Okay. 14 MS. MCCOY: Where theirs included all of 10:52 AM 15 those. 16 THE COURT: So, even though theirs included 17 that, at the ultimate run is your list had 18 approximately 190 more than theirs? 19 MS. MCCOY: Yes. 20 MR. VISSER: Yes. 21 THE COURT: Okay. So, you had obviously, 22 since they had some that were disputed settlement or 23 medical only that would not have been on your list, 24 correct? 25 MS. MCCOY: Right. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 66 of 134 10:53 AM 1 THE COURT: So there was more than 190, 2 obviously by definition, then, that you had that were 3 not on their list? 4 MS. MCCOY: Well, this was a representative 5 sample of approximately 1,100 out of the 9,000. 6 THE COURT: Okay. 7 MS. MCCOY: And of that group, every valid 8 occupational disease claim DOLI had identified, we 9 had also identified. 10 THE COURT: Okay. 11 MS. MCCOY: Plus some additional claims. 12 THE COURT: Okay. 13 MR. LUCK: So, what you are talking about 14 here is you took the DOLI list and you manually 10:53 AM 15 reviewed 1,100 files, you reviewed the actual data in 16 the files for 1,100 files, and you determined that 17 your process, just in those 1,100 files, identified 18 197 more potential Stavenjord beneficiaries than they 19 did? 20 MS. MCCOY: Yes. 21 MR. LUCK: And you also determined in that 22 hands-on analysis that because of their lack of 23 exclusionary criteria, their numbers were ballooned 24 with claims that clearly weren't -- could never be in 25 the population? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 67 of 134 10:54 AM 1 MS. MCCOY: Exactly. Well, as an adjunct 2 to that, it also, at least from our perspective, 3 absolutely validates our process that we undertook. 4 MR. LUCK: The Judge mentioned earlier that 5 the DOLI had a suggestion for another search 6 approach. Did you look at that, and was that 7 helpful? 8 MS. MCCOY: We did, but unfortunately it 9 wasn't. Even though we have similar data and it's 10 structured similarly, a single limitted field like 11 heart or lungs is not within our coding and not 12 something we are able to independently search 13 against. Although with the broad parameters we did 14 use, which should theoretically catch any potential 10:55 AM 15 occupational disease or exposure when you're looking 16 at things like repetitive and dust and respiratory 17 and those types of things, we are still confident 18 that, even though we can't individually identify each 19 and every one, we would have caught anything that 20 should have been caught. 21 MR. LUCK: So, what you are saying is on 22 that limited additional search criteria that they 23 suggested, you would have come at those same claims 24 from different filter directions and you're confident 25 that you would have caught anything that would be in For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 68 of 134 10:56 AM 1 those classifications? 2 MS. MCCOY: We are. And we did attempt to 3 do that type of data run, and it simply couldn't be 4 done in our system. 5 MR. LUCK: I want to finalize our 6 discussion of the identification process. And I have 7 a couple of questions for both of you. 8 First, Cris, do you believe the process that was 9 outlined and explained to the Court in your testimony 10 for the identification of potential Stavenjord 11 beneficiaries is appropriate and comprehensive given 12 your work on this and other common fund and class 13 actions and your experience with claims? 14 MS. MCCOY: Yes. 10:56 AM 15 MR. LUCK: Are you comfortable that the 16 State Fund did everything reasonably possible to 17 identify potential Stavenjord beneficiaries? 18 MS. MCCOY: I think we went over and 19 above. 20 MR. LUCK: Did you encounter any problems 21 in this process that made it impossible or 22 impracticable for the Montana State Fund to identify 23 potential Stavenjord beneficiaries? 24 MS. MCCOY: No. It's simply committing the 25 time. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 69 of 134 10:57 AM 1 MR. LUCK: Bill, rather than going through 2 all of those questions, are you in agreement, or do 3 you have any disagreement with Cris's testimony on 4 that? 5 MR. VISSER: No. I whole-heartedly agree. 6 We learned from -- 7 THE COURT: At the end of this whole 8 process I would have loved to have seen the look on 9 your face, Well, I have a few disagreements... 10 MR. VISSER: We learned in past cases that 11 it's a grind, it's monotonous, tedious, but it's the 12 only way to do it. And I think we have done an 13 excellent job so far. 14 MR. LUCK: Are you comfortable that it is 10:58 AM 15 not, as a result of working through this process, 16 either impossible or impractical to properly identify 17 potential Stavenjord beneficiaries? 18 MS. VISSER: Well, I think we can do it, 19 and we did it. 20 MR. LUCK: Your Honor, for -- in relation 21 to the identification, that would be the end of our 22 presentation and maybe a good time for questions or a 23 break or... 24 THE COURT: Okay. If anybody needs a 25 break, we can take a few minutes. Otherwise, why For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 70 of 134 10:58 AM 1 don't -- I've got a few questions. But why don't I 2 let -- Tom, you go ahead with your questions and 3 that, because that might cause me to follow -- bring 4 something else to mind for me. 5 MR. MURPHY: All right. Well, Bill, you've 6 done an excellent job "so far." You said, "So far." 7 You consider this to be a process of identification? 8 MR. VISSER: Well, we have to get the 9 notification done. 10 MR. MURPHY: No, we are talking about 11 identification. 12 MR. VISSER: The identification? I think 13 we have the gross population, yes. 14 MR. MURPHY: You know, in the past cases, 10:59 AM 15 the common fund cases you have worked on, did you 16 consider it a process of identification moving 17 forward where you'd get a more and more articulate 18 population? 19 MR. VISSER: You use as many searches as 20 you can, combine them, and there is a point where you 21 say, well, this is all I can get. At that point in 22 time you start to eliminate what does not belong 23 there. I think we are over that top and now we are 24 looking at who should be notified, and we have 25 reached the number. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 71 of 134 11:00 AM 1 MR. MURPHY: Did you say you worked on the 2 Murer case? 3 MR. VISSER: I inherited Murer about ten 4 years after it was decided, and am studying now the 5 process of the previous handling of the Murer case. 6 MR. MURPHY: Were you involved in the 7 searches done to locate Murer claimants? 8 MR. VISSER: No, I was not. 9 MR. MURPHY: Was that Cris McCoy, then? 10 MR. VISSER: I don't know. Were you? 11 MS. MCCOY: Actually, at that point in time 12 I believe it was Sam Heigh who actually undertook the 13 process of identification. 14 MR. MARTELLO: Along with Dave Ogan. I was 11:01 AM 15 involved with Murer, but Dave Ogan was the contact 16 person for the searches. 17 MR. MURPHY: Thanks. Cris, can you tell me 18 a common fund case that you were involved in from the 19 start in terms of identifying claimants? 20 MS. MCCOY: Broeker, Buckley, FFR, Flynn, 21 Schmill, Stavenjord. 22 MR. MURPHY: In Broeker did the State Fund 23 come up with all the queries that located the 24 claimants? 25 MS. MCCOY: We actually came up with the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 72 of 134 11:01 AM 1 queries, Larry Anderson did contract with Dave Gannon 2 to review, based on his computer expertise, the work 3 produced by our IT person, Dave Ogan. 4 MR. MURPHY: Were there additional 5 claimants identified as a result of Larry Anderson 6 and Mr. Gannon's work? 7 MS. MCCOY: No. 8 MR. MURPHY: Did they review your queries 9 to make suggestions as how to refine your fields that 10 you used? 11 MS. MCCOY: They reviewed the queries for 12 appropriateness and comprehensiveness; and to the 13 best of my knowledge, Mr. Gannon approved of the work 14 Dave Ogan did. 11:02 AM 15 MR. MURPHY: Do you know of additional 16 queries that were asked as a result of Mr. Gannon's 17 work? 18 MS. MCCOY: Personally, no, I don't. 19 MS. MURPHY: Are you saying that they 20 didn't happen? 21 MS. MCCOY: No, I am saying I personally 22 have no knowledge. 23 MS. MURPHY: Thank you. Do you know if 24 additional queries were formulated as a result of 25 input from either adverse counsel or the court in the For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 73 of 134 11:02 AM 1 Murer case? 2 MS. MCCOY: That, I do not know, no. 3 MR. MURPHY: How about in the FFR case? 4 MS. MCCOY: To be sure I'm understanding 5 your question, did they provide input that resulted 6 in subsequent data runs? 7 MR. MURPHY: Correct. That's a good way of 8 putting it. 9 MS. MCCOY: No. 10 MR. MURPHY: How about in the Flynn case? 11 MS. MCCOY: No. 12 MR. MURPHY: So each time adverse counsel 13 just accepts the queries that are asked by the State 14 Fund and they don't question whether additional 11:03 AM 15 fields should be looked at or additional claimants or 16 files should be looked at? 17 MS. MCCOY: Our work has always been 18 available to each of those attorneys to review, we 19 discuss the processes, and they have been satisfied 20 with my work product, yes. 21 MR. MURPHY: Have they ever gone and looked 22 at the manual files themselves? 23 MS. MCCOY: We, as a point of 24 clarification, would not have manual files for them 25 to review. I have always provided plaintiff's For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 74 of 134 11:03 AM 1 counsel with any documentation they wanted to see. 2 MR. MURPHY: For instance, these 348 files 3 that you reviewed, Bill, are those on microfiche? 4 Were they all on microfiche? 5 MR. VISSER: They were on microfiche and I 6 would print them, some pertinent pages in the 7 process. 8 MR. MURPHY: In any of the common fund 9 cases you've worked with, have you sat down with 10 opposing counsel and looked at the files and seen if 11 you agree on what category it should be in? 12 MR. VISSER: In Pinckard we have had 13 several discussions with opposing counsel, but due to 14 the status of the case it was kind of tough to let 11:04 AM 15 counsel look at files. We did discuss processes at 16 length. 17 MR. LUCK: Point of clarification, Tom. 18 Can I just -- just a clarification. Are you speaking 19 to identification or implementation issues? 20 MR. MURPHY: I hadn't segregated them out 21 yet. But I think that that's a fair question. 22 MR. VISSER: In Pinckard there was no 23 implementation, the whole issue was identification, 24 so... 25 MR. MURPHY: Were there any disagreements For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 75 of 134 11:05 AM 1 with adverse counsel in Pinckard about who was a 2 claimant and who was not? 3 MR. VISSER: I wouldn't call it a 4 disagreement. When I -- I broke them down in 5 categories, since it was kind of a fuzzy topic, the 6 whole class action. And then with counsel on both 7 sides I outlined, okay, this is what I have. And 8 then counsel might have their disagreement, which 9 should be who would and who wouldn't. And to me it 10 would make no difference what counsel decided they 11 wanted in. So, if they wanted group whatever in the 12 population for the mailing, we put them in the 13 mailing. 14 MR. MURPHY: Cris, have you ever personally 11:06 AM 15 sat down with claimant's counsel and looked at a 16 particular file and said this is one we have a 17 disagreement about, in any of the common fund cases 18 you have worked on? 19 MS. MCCOY: If there were any disagreement, 20 we would sit down and have that discussion, or that 21 discussion would involve claimant's counsel and Tom 22 Martello. 23 MR. MURPHY: So, I guess I'm -- that's what 24 I'm trying to get at. How often does that happen? 25 For instance in the Murer case, a case that's spanned For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 76 of 134 11:07 AM 1 I think ten or more years. 2 MS. MCCOY: There were areas of 3 disagreement in Murer, and those were frequently a 4 topic of discussion between Allen McGarvey and Tom 5 Martello. 6 MR. MURPHY: What kinds of disagreements 7 did you have? 8 MS. MCCOY: Have I personally had? 9 MR. MURPHY: No, were those that we were 10 just referring to, between Mr. McGarvey and Mr. 11 Martello. 12 MS. MCCOY: An evaluation as to the benefit 13 entitlement. 14 MR. MURPHY: Entitlement issues? Were 11:07 AM 15 there any identification issues that were at issue? 16 MS. MCCOY: Not that I was ever made aware 17 of. 18 MR. MURPHY: How about in the other cases? 19 MS. MCCOY: No. 20 MR. MURPHY: Just entitlement issues came 21 up? 22 MS. MCCOY: Periodically. 23 THE COURT: Cris, if you would, when you 24 are talking about entitlement, just expound on that. 25 Was it specifically -- well, and I'm sure it wasn't For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 77 of 134 11:08 AM 1 the exact same issue, but when you're -- define what 2 you mean when you're talking about entitlement 3 issues. 4 MS. MCCOY: As a relevant example, because 5 there was actually only one issue ever raised when we 6 were administrating Fisch, Frost, and Rausch, I had 7 an inquiry from Lon Dale who thought I had 8 miscalculated an entitlement, which of course then in 9 turn would translate into a miscalculation of the 10 fee. I reviewed the information he had sent over 11 where he thought I was in error, pointed out to him 12 where he was in error and my calculation was in fact 13 correct, and that was the end of it. 14 MR. MURPHY: You had mentioned -- one of 11:08 AM 15 you, I think it was you, Cris, that mentioned that 16 the State Fund is getting better and better at 17 handling these common funds. Is that accurate? 18 MS. MCCOY: I believe that to be true. 19 MR. MURPHY: What makes them better? 20 MS. MCCOY: What makes the State Fund 21 specifically better at doing this? 22 MR. MURPHY: Yeah. 23 MS. MCCOY: We have the experience, the 24 resources, the expertise. As I said before, the 25 knowledge base, the skill sets. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 78 of 134 11:09 AM 1 MR. VISSER: And practice. 2 MR. MURPHY: You know, one my favorite 3 sayings, Cris and Bill, it's in my desk, it's, 4 judgement comes from an experience; and experience, 5 well, that comes from bad judgement. Something along 6 those lines. It talks about how we grow and learn 7 from our mistakes. Good judgement comes from 8 experience; and experience, well, that comes from bad 9 judgement. 10 Have you perfected it to the extent that you are 11 not making any more mistakes? Is that what you're 12 testifying? 13 MS. MCCOY: What I am testifying is I 14 believe we have developed an efficient process. Our 11:10 AM 15 learning curve was essentially Murer where we were 16 able to see first hand what worked, what doesn't 17 work, and more efficient ways to go about meeting the 18 needs of both the injured workers, the attorneys, the 19 court. 20 MS. MURPHY: I think that the former Judge 21 McCarter commented on the multiple hearings in Murer, 22 the arguments about all sorts of things, 23 identification and otherwise, that were encountered 24 between counsel in the Murer case over that ten- or 25 twelve-year period, whatever it was were you a party For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 79 of 134 11:10 AM 1 to any of those? 2 MR. LUCK: I'm going to, just for the 3 record, make an objection. I don't think any of 4 those discussions were in relation to identification. 5 There were a lot of discussions about entitlement 6 issues. 7 MR. MURPHY: Well, I think those 8 discussions are a matter of record. 9 MR. LUCK: Yep, that's right. 10 THE COURT: Yeah. 11 MR. LUCK: But I just wanted to make sure 12 the record is clear -- 13 MR. MURPHY: My question to Cris is -- 14 THE COURT: So, we are not talking over 11:11 AM 15 each other. So, no, and I think -- and I'm familiar 16 with the language you are referring to in Murer, so, 17 and it is a matter of the record. So go ahead. 18 MR. MURPHY: All I was saying was were you 19 a party to any of those discussions or arguments 20 about all of those things in Murer over that 21 many-year period? 22 MS. MCCOY: I was personally present at 23 some of those hearings. I'm not sure what 24 constitutes all those things over the years. 25 MR. MURPHY: What were the issues that you For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 80 of 134 11:11 AM 1 remember being argued about in Murer? 2 MS. MCCOY: Specifically how to 3 appropriately adjust and settle files and what 4 parameters would be pertinent to those. There were 5 one or two file-by-file discussions of benefit 6 entitlements that we were able -- unable to resolve 7 independently. I personally don't recall any 8 specific issues raised by Allen McGarvey regarding 9 our notification process. 10 MR. MURPHY: As I understand it, Mr. Luck 11 is suggesting that only State Fund experts are able 12 to comment on this search that was done in the 13 Stavenjord case. Is that what you're testifying? 14 MS. MCCOY: We are in the best position to 11:12 AM 15 comment on our capabilities, yes. 16 MS. MURPHY: Are you testifying that there 17 is no one else that could comment about your 18 capability or your search -- 19 MS. MCCOY: Such as? 20 MR. MURPHY: Another expert? 21 MS. MCCOY: Outside of the State Fund? 22 MR. MURPHY: Correct. 23 MS. MCCOY: It would be my belief that it 24 would not be as informed as ours is. 25 MR. MURPHY: Do you believe that your For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 81 of 134 11:13 AM 1 expertise is necessary to conclude that there are 2 this many claimants? 3 MS. MCCOY: In this particular instance, 4 yes, I do. An identification process is more than a 5 simple query. 6 MR. MURPHY: In the law I think we define 7 an expert as somebody that will assist the trier of 8 fact to understand the issues at hand. Would you say 9 that an expert with that definition is necessary in 10 this case? 11 MS. MCCOY: I'm not sure I understand the 12 question. 13 MR. MURPHY: Is there -- is an expert 14 necessary here to assist the trier of fact in 11:13 AM 15 determining who is and who is not a Stavenjord 16 claimant? 17 MS. MCCOY: Again, if I'm understanding 18 your question, and I don't believe I am, are you 19 asking whether Judge Shea requires an expert to make 20 that determination? 21 MR. MURPHY: I suppose you could answer 22 that question, yes, how would you answer that 23 question? 24 MS. MCCOY: I think he can rely on us to 25 fill that need. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 82 of 134 11:14 AM 1 MS. MURPHY: Because you're experts? 2 MS. MCCOY: As qualified, yes. 3 MR. MURPHY: And you don't think there's 4 any other expert available that could give the same 5 quality of opinion? 6 MS. MCCOY: Again, we are talking strictly 7 outside of the State Fund organization? Yes? No? 8 MR. MURPHY: To identify these same -- I'm 9 sorry -- 10 THE COURT: It may not be clear, because 11 we're not picking up inflection on the written 12 transcript. I think Cris was asking for 13 clarification whether another expert, and I think you 14 thought she was answering the question. Am I correct 11:15 AM 15 there? 16 MS. MCCOY: That was how I would 17 characterize it, yes. 18 THE COURT: Yeah. So, maybe, Julie, can 19 you go back and read what Tom's last question was to 20 Cris and what her response in seeking a clarification 21 as to what he was asking was? 22 23 (Record read.) 24 25 MR. MURPHY: Thank you. I didn't realize For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 83 of 134 11:16 AM 1 you didn't answer the question. I was really just 2 trying to find out if you think there's another 3 expert that might have some input into this 4 complicated issue. 5 MS. MCCOY: There might be such an 6 individual within the State Fund organization, which 7 is why I asked for the clarification, if it pertained 8 to individuals or potential experts outside of our 9 organization. Outside of our organization, my answer 10 would remain the same. I would still feel I am in a 11 better position, Bill is in a better position to 12 provide that type of expertise than someone from the 13 outside. 14 MR. MURPHY: I guess I'm just brand new to 11:16 AM 15 the whole list thing. It looks like it takes quite a 16 bit of expertise to figure out what kind of fields to 17 use and which kind of exclusions to exclude and so 18 forth. That takes expertise, is that your testimony? 19 MS. MCCOY: At least some knowledge of 20 operating systems, yes. 21 MR. MURPHY: Well, for instance, how many 22 fields are there? If we were to pick different 23 fields, how many were there available to use? 24 MS. MCCOY: In the overall within the claim 25 management system, or are we talking about For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 84 of 134 11:17 AM 1 individual? 2 MR. MURPHY: Well, we'll talk about both, 3 combined. How many fields are there? 4 MS. MCCOY: Literally thousands. 5 MR. MURPHY: Do we have a printout of how 6 many fields there are? Could I look at every one of 7 them in every category? 8 MS. MCCOY: It could be provided to you, 9 yes. 10 MR. MURPHY: How long would that take to 11 provide? 12 MS. MCCOY: That, I couldn't tell, I would 13 have to request that through IT. 14 MR. MURPHY: And then if there was an 11:17 AM 15 expert that knew what each of those fields was, that 16 person, he or she, could say, hey, I think you should 17 run this field and not that field, use this 18 exclusion, not that one. That's possible, right? 19 MS. MCCOY: They may come to a different 20 conclusion or opinion than we do, yes. 21 MR. MURPHY: That takes expertise to choose 22 those fields, to chose which ones to include and 23 which ones not, right? 24 MS. MCCOY: It does. And simply reading 25 data fields does not suggest you have the requisite For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 85 of 134 11:18 AM 1 expertise to then translate that into a query that 2 brings you back a valid incomprehensive data run. 3 MR. MURPHY: I agree. My point is that it 4 takes expertise to do this. Your point is that you 5 don't need one from outside the State Fund? 6 MS. MCCOY: No. I believe my point was I 7 believe we already possess that requisite 8 expertise. 9 MR. MURPHY: Has any of the interaction 10 that you've had with adverse counsel in any of the 11 other common fund cases resulted in additional 12 claimants being located? 13 MS. MCCOY: No. 14 MR. MURPHY: You mentioned that you do 11:19 AM 15 quality assurance in some of these searches, did you 16 notice any quality assurance problems? 17 MS. MCCOY: On occasion, yes, I do. 18 MR. MURPHY: What were the kind of quality 19 problems that you were noticing? 20 MS. MCCOY: As an example, where I have 21 done some prospective over site. Perhaps six months 22 to a year out there were instances where I found 23 improper calculations of the primary insurance amount 24 contrary to Broeker. Those were remedied, the 25 unpayments made to the injured workers. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 86 of 134 11:20 AM 1 MR. MURPHY: Did you find any cases that 2 were miscategorized? 3 MS. MCCOY: I'm sorry, miscategorized in 4 what fashion in relation to the common fund? 5 MR. MURPHY: Categorized, for instance, as 6 injury when they should have been OD, or they were 7 categorized as OD when they should have been 8 categorized as injury? 9 MS. MCCOY: I have found those instances, 10 yes. 11 MR. MURPHY: Did you find that in your 12 quality assurance run here during your second -- I 13 think you called it your second run? Your second 14 search? 11:20 AM 15 MR. LUCK: Point of clarification? 16 MR. MURPHY: I'll re-ask the question. Did 17 you find any miscategorizations on your second 18 search? 19 MR. LUCK: Your Honor, could I -- could I 20 just interpose a question? 21 THE COURT: Yeah, go ahead. 22 MR. LUCK: As I recall the testimony, the 23 quality assurance runs were on -- in that situation, 24 at least a couple of years beyond the entitlement 25 date. And I'm just curious whether he's talking For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 87 of 134 11:21 AM 1 about quality assurance issues that would be involved 2 in the Stavenjord potential beneficiary population, 3 or those that would be a year or two beyond the 4 deadline. Two different populations, that's why I 5 wanted the clarification. 6 MR. MURPHY: Respectfully, Judge, I don't 7 think that clarifies anything. I'm just asking her 8 if she found any that were miscategorized. 9 THE COURT: Well, actually, I had kind of 10 the same thought in my own mind. And if I -- and 11 maybe I'm kind of mixing terms or I misunderstood, 12 too, but when I thought -- I think the quality 13 assurance answer came up within the context of in 14 response to my question as to why you did these 11:21 AM 15 searches to the date of the run and didn't end them 16 on May 22nd, 2001. And I think it was that the 17 post-May 22nd, 2001 searches were done as a quality 18 assurance tool to determine that prospectively that 19 these files were being -- that the claims were being 20 handled in accordance with Schmill and Stavenjord; is 21 that -- 22 MS. MCCOY: That's correct. 23 THE COURT: On a future basis -- and, Tom, 24 just because this was my -- I had this kind of 25 question in my own mind when you were asking this. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 88 of 134 11:22 AM 1 When we are talking about quality assurance, that's 2 what I thought it was limited to. Maybe -- and I'm 3 not trying to ask your question for you, Tom, I'm 4 just -- but I actually -- since we are on this, I 5 actually did have this question as it pertained to 6 the quality assurance time period, the post-May 22nd, 7 2001 moving forward, for whatever benefit this may 8 be, did you come across any files that were not being 9 handled consistent with the Stavenjord and Schmill 10 directives? 11 MS. MCCOY: I did find a few instances 12 fairly early into the prospective period where files 13 had been closed, when I was reviewing the file for 14 compliance. 11:23 AM 15 THE COURT: Okay. 16 MS. MCCOY: I would find, as an example, an 17 impairment award documented to the file that had 18 never been paid. In those instances, which is part 19 of why we also do the prospective over site, I would 20 take care of that particular issue so that it would 21 be in compliance, insured that the injured worker 22 received their whole award. And then we would close 23 the file. 24 THE COURT: When you were saying like in 25 those instances, are we talking about, then, the -- For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 89 of 134 11:24 AM 1 these were people who didn't fall within the 2 Stavenjord or Schmill time periods but they were part 3 of the quality assurance period, the post- -- 4 MS. MCCOY: The prospective period? 5 THE COURT: Right. 6 MS. MCCOY: Yes. 7 THE COURT: Okay. Thank you. Tom, go 8 ahead. 9 MR. MURPHY: What I was getting at, Cris, 10 was that it is something that happens, that cases are 11 miscategorized. Sometimes they are categorized as OD 12 when they are not, and sometimes they're categorized 13 as injury when they are not; is that correct? 14 MS. MCCOY: That is true. 11:24 AM 15 MR. MURPHY: And you found instances of 16 that, it doesn't matter which time period? 17 MS. MCCOY: I have. 18 MR. MURPHY: Has that been true of the 19 State Fund's work all the way through, including the 20 time period that's relevant to Stavenjord? 21 MS. MCCOY: There have been isolated 22 instances that would be categorized as miscoded, but 23 generally Bill and I review more than a simple claim 24 classification to determine what should be the 25 appropriate classification. And when we do in fact For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 90 of 134 11:25 AM 1 encounter these coding errors, we fix them as we find 2 them. 3 MR. MURPHY: And I appreciate that. 4 Bill, of the 348 cases that you manually 5 reviewed, were any of them miscategorized? 6 MR. VISSER: We caught them in the net of 7 the query. So there were potential Stavenjord. 8 There were injuries in there. How many were 9 classified as an OD and were injuries, or vice versa, 10 I can't tell you without going back into them. 11 MR. MURPHY: I'm just asking if there were 12 mischaracterizations. 13 THE COURT: Let him finish there and then 14 go ahead and follow up. 11:25 AM 15 MR. VISSER: I looked at the copy of the 16 file, I did not look at the database. So what was an 17 OD, was on the OD list and what was on the injury 18 list, so I did not search back into the system to 19 find out how they were classified. So I can't give 20 you an exact answer. If there were some, that could 21 very well be, since it was an overbroad search from 22 the beginning. 23 MR. MURPHY: I think your answer was, it 24 could well be that they were miscategorized, but I 25 don't know. Is that what you said to me? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 91 of 134 11:26 AM 1 MR. VISSER: I didn't verify on the system. 2 I looked at the hard copy of the file. From the 3 microfiche. On others, I looked at the system and 4 yes, if they are not classified properly, we'd change 5 them. 6 MR. MURPHY: Did you change any? 7 MR. VISSER: Out of those 348, no. 8 THE COURT: So Bill, if I understand your 9 answer, then, because these were manual review -- the 10 ones that were an electronic review, you were, I 11 guess, already in the system so you would change the 12 code. The 348, since it was a manual review, 13 you were just looking factually on that review to 14 make a determination, OD or injury. And you would 11:27 AM 15 make that determination, and it would either, if it 16 was OD, go on the list, but you weren't in the system 17 because it was a manual review so you didn't change 18 the code in the system? 19 MR. VISSER: Right. 20 THE COURT: All right. 21 MR. MURPHY: Did you determine if there 22 were any occupational diseases that were superimposed 23 on previous injury claims? 24 MR. VISSER: I didn't look at the whole 25 body of work of the claimant, how many claims he had For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 92 of 134 11:28 AM 1 and whether or not one related to the other. We look 2 at the individual claim, is it an OD, is it an 3 injury? Does it fall under Stavenjord or doesn't it? 4 So, your question relates to did we grab every claim 5 from this person, or... 6 MR. MURPHY: Yes, that's a starting point. 7 Did you grab every claim from that person? 8 MR. VISSER: No, we took whatever came up 9 on the query and started to look for them. 10 MR. MURPHY: Then looking at Page 4 of 11 Exhibit 1, these are the codes for injury and -- the 12 code for injury, medical only, new claims, active 13 wage loss. How many other codes are there, how many 14 other numbers are there? 11:30 AM 15 MS. MCCOY: There was an 05, which was, I 16 believe, unemployment -- or not unemployment, UEF. 17 MR. VISSER: Uninsured -- Yes. 18 MS. MCCOY: There was a 10, which was a 19 closed wage loss. 20 MR. VISSER: Was there a 9, too? 21 MS. MCCOY: Yeah. A 9 was a pending -- you 22 know, still not set up in the system. An incident 23 report, if you will. Are the ones I can recollect, 24 off the top of my head. 25 MR. MURPHY: This isn't a situation where For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 93 of 134 11:30 AM 1 we might have thousands of numbers? 2 MS. MCCOY: No. 3 MR. MURPHY: Just five or ten, maybe. 4 MS. MCCOY: It was a very limited system. 5 MR. MURPHY: The number 9 would be for 6 something that you had an incident report on but no 7 file was set up? 8 MS. MCCOY: As I recall. 9 MR. MURPHY: Did your query look for the 10 number 9s? 11 MS. MCCOY: No. 12 MR. MURPHY: What about a number 9 which 13 was an occupational disease? 14 MS. MCCOY: It wouldn't have that 11:31 AM 15 designation. It has -- in order to be a valid claim, 16 it would need to move to one of the other statuses, 17 and we would pick it up at that point. 18 MR. MURPHY: In other words, the State Fund 19 needed to make a calculation as to what kind of claim 20 this was and pursue it a little farther before it was 21 a valid claim, in the State Fund's opinion? 22 MS. MCCOY: Or perhaps the valid claim had 23 yet to be filed, it was simply an incident report. 24 MR. MURPHY: In my head I'm thinking 25 incident report means claim. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 94 of 134 11:31 AM 1 MS. MCCOY: Not necessarily. 2 MR. MURPHY: A claim -- what do they call 3 that? Claim form. 4 MS. MCCOY: And I understand your 5 prospective on that, Tom, but that is not what an 09 6 designated. An actual claim form would be set up as 7 a claim. 8 MR. MURPHY: How could you have a claim 9 without a claim form? 10 MS. MCCOY: A medical bill that came in. 11 MR. MURPHY: Would you ever consider an 09 12 designation involving something that would be a claim 13 form? 14 MS. MCCOY: I'm sorry? 11:32 AM 15 MR. MURPHY: Like a letter saying I got 16 hurt, I got hurt yesterday working for my boss and I 17 hurt my back. That's a claim form in my opinion. 18 MS. MCCOY: And it would be in ours, as 19 well. If there is sufficient information to indicate 20 that an on-the-job injury has occurred and we know 21 who and what employer, it technically is a valid 22 claim. We never insisted it absolutely had to be on 23 the Division claim form. But an 09 does not meet 24 that qualification. 25 MR. MURPHY: 09 means that there is not an For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 95 of 134 11:33 AM 1 adequate claim form? 2 MS. MCCOY: That may be a better 3 explanation of it. 4 MR. MURPHY: Do you know of any exceptions 5 to that explanation? 6 MS. MCCOY: Not that I recall, no. 7 MR. MURPHY: In your initial search, can 8 you tell me who was involved in that? 9 MS. MCCOY: In what aspect, please? 10 MR. MURPHY: What State Fund employees 11 worked on the initial search? Who? If you could 12 remember their names, please. 13 MS. MCCOY: Bill Visser and Cris McCoy. 14 MR. MURPHY: I think that you had mentioned 11:34 AM 15 an IT person. 16 MS. MCCOY: Yes. We developed the initial 17 search criteria, that was then passed to Dave Ogan 18 who is one of our IT programmers, and he would run 19 the actual queries against the database. 20 MR. MURPHY: How long does it take to run a 21 query? 22 MS. MCCOY: The one time we did time it on 23 the -- I believe it was the initial Stavenjord run of 24 2004, it was somewhere between four and eight hours 25 to formulate and run that query. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 96 of 134 11:34 AM 1 MR. MURPHY: Were there any other State 2 Fund employees or agents that helped you with the 3 initial search, other than the three that you 4 identified? 5 MS. MCCOY: No. 6 MR. MURPHY: How about the second search? 7 MS. MCCOY: We -- in formulating the query? 8 MR. MURPHY: No. In working on it in any 9 aspect? 10 MS. MCCOY: On any level? We did have some 11 temporary assistance in the review process from Chuck 12 Edwards. 13 MR. MURPHY: That answer, does it refer to 14 the initial search, or the second search? 11:35 AM 15 MS. MCCOY: No, sir, it's the 2005. 16 MR. MURPHY: That's the second search, June 17 14, '05? 18 MS. MCCOY: Yes. 19 MR. MURPHY: Did anybody else help in the 20 first search, the initial? 21 MS. MCCOY: No, that was Bill and I. 22 MR. MURPHY: And then in the second search 23 it was Bill and you, was Dave involved again? 24 MS. MCCOY: Dave ran the query. 25 MR. MURPHY: And Chuck Edquest. Did anyone For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 97 of 134 11:35 AM 1 else have any involvement in the second search? 2 MS. MCCOY: No. 3 MR. MURPHY: No one gave any other input? 4 MS. MCCOY: No. 5 THE COURT: Cris, let me ask you a question 6 on that same thing. And now I can't remember where 7 it came up in the presentation, but the internal 8 actuary, Dan Gengler? 9 MS. MCCOY: Yes. 10 THE COURT: Is that right? What was his 11 function or his role? 12 MS. MCCOY: Dan was not specifically 13 involved in either of the two data runs that we 14 referenced, the 2004 and the 2005. Dan ran his own 11:36 AM 15 independent query using Data Warehouse -- 16 THE COURT: Oh, that's right. 17 MS. MCCOY: -- Which feeds off of our 18 systems. 19 THE COURT: Right. Okay. I had forgotten 20 that that was the answer. 21 MR. MURPHY: Following the same line, with 22 regard beyond the common funds, has anyone else at 23 the State Fund been involved in the initial queries, 24 these searches? 25 MS. MCCOY: Through the years. Initially For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 98 of 134 11:37 AM 1 in Broeker there were more individuals involved. 2 MR. MURPHY: Who were the individuals in 3 Broeker? 4 MS. MCCOY: At that point in time Lucinda 5 Dixon. L-U-C-I-N-D-A. 6 MR. MURPHY: Anybody else? 7 MS. MCCOY: I believe Hank may have had 8 some involvement, and give me a minute and I'll 9 remember his last name. 10 MR. VISSER: Worchek. 11 MS. MCCOY: Thank you. W-0-R-C-H-E-K? 12 S-C-H? 13 MR. VISSER: It starts with W-0-R. 14 MR. MURPHY: I'm just looking for other 11:37 AM 15 employees that have helped formulate searches like 16 the ones that you did in the initial and second 17 search in the Stavenjord case. 18 MS. MCCOY: I believe those two individuals 19 were involved in Broeker. Lucinda may have had input 20 into Murer, but I couldn't swear to it. 21 MR. MURPHY: How about the other common 22 fund cases, anybody else involved in the searches? 23 MS. MCCOY: No. 24 MR. MURPHY: This independent run that Mr. 25 Gengler ran, did you ask him to run that? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 99 of 134 11:38 AM 1 MS. MCCOY: No. 2 MR. MURPHY: Why did he do it, then? 3 MS. MCCOY: I would assume for his 4 purposes. 5 MR. MURPHY: What are his purposes that are 6 searched? 7 MS. MCCOY: He's the internal actuary. 8 MR. MURPHY: So this was when we were 9 trying to determine the value of Stavenjord? 10 MS. MCCOY: Possibly. It was not discussed 11 with me personally. 12 MR. MURPHY: How is it that he shared with 13 you his results? 14 MS. MCCOY: Because we work for the same 11:38 AM 15 organization. 16 MR. MURPHY: Does he have the same 17 expertise as you-all in terms of determining what 18 kind of search queries to use, what fields and so 19 forth? 20 MS. MCCOY: Dan would have expertise to the 21 same extent in the claims arena as Bill and I, I 22 would probably have to say no, anymore than I would 23 be able to apply my expertise to the actuary 24 fields. 25 MR. MURPHY: Do you know if Mr. Gengler ran For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 100 of 134 11:39 AM 1 similar internal audits of the other common fund 2 cases? 3 MS. MCCOY: That, I have no personal 4 knowledge of it. I don't know if he did or did 5 not. 6 MR. MURPHY: Has he shared with you any 7 other of his independent runs in any of the other 8 cases? 9 MS. MCCOY: My recollection is that it is 10 generally Bill and I feeding information to Dan as a 11 more reliable source. 12 MR. MURPHY: Bill, how long did it take to 13 review the 348 cases? 14 MR. VISSER: Oh, roughly I think it was 11:40 AM 15 closer to three weeks than two. 16 MR. MURPHY: Would that be each day, or how 17 many hours would you say per week? 18 MR. VISSER: Maybe 30 a week. 19 MR. MURPHY: So maybe 90 hours total; is 20 that fair? Or is that too high? 21 MR. VISSER: No, probably a fair 22 estimate. 23 THE COURT: Bill, I'm assuming some of them 24 -- and if I'm picturing -- you said these microfiche 25 are stored on cards, correct? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 101 of 134 11:41 AM 1 MR. VISSER: Yes. 2 THE COURT: So is it one card would be a 3 file with multiple pages? 4 MR. VISSER: No. There might be 12 to 15 5 of these microfiche pages being one envelope, and 6 each has 25 pictures on it. 7 THE COURT: Okay. 8 MR. VISSER: Sometimes part of a file is a 9 microfiche, later the file comes alive, other data 10 are in different platforms so you have to get the 11 whole body of work here. 12 THE COURT: Sure. 13 MR. VISSER: And you know, there are 14 interruptions. And I would say a work file takes ten 11:41 AM 15 minutes, but sometimes it takes you more than an 16 hour. 17 THE COURT: That was going to be my next 18 question. But some of them you might -- in the first 19 few pages there might be something that's clearly 20 going to identify it as an OD or not and -- 21 MR. VISSER: Yes. You are done. 22 THE COURT: Then others you are just going 23 to have to keep looking until you find something. 24 Were there any that you looked at that you just flat 25 out weren't able to make a determination? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 102 of 134 11:42 AM 1 MR. VISSER: Well, we threw them in a 2 mailing list, there were two of them. 3 THE COURT: Two that -- 4 MR. VISSER: Yeah. That we couldn't find a 5 hard file and there was nothing on the electronic 6 fields and there was not sufficient information on 7 the microfiche. We had similar problems in Pinckard, 8 and the consensus was when in doubt, they go in the 9 mailing list. 10 THE COURT: Okay. Thank you. 11 MR. MURPHY: Does the Montana State Fund 12 only have one record person? 13 MR. VISSER: Right now? Yes. We used to 14 have an army; but since everything is optical disk 11:43 AM 15 now we only need one. 16 MR. MURPHY: How about to get microfiches, 17 how hard is that for you to get the microfiche? 18 MR. VISSER: I call that record person; and 19 what magic he does with other departments where he 20 gets them from, I really have no idea. But a few 21 days later I get them. 22 MR. MURPHY: Are these all copied then onto 23 paper? Is that how -- 24 MR. VISSER: No, no, they come in 25 microfiche form. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 103 of 134 11:43 AM 1 MR. MURPHY: So they don't have to be 2 copied onto pages? 3 MR. VISSER: No. 4 MR. MURPHY: In any of the common fund 5 cases, Cris, I understand that some of them you did 6 advertising on the television and the newspaper and 7 the radio, those kinds of things? 8 MS. MCCOY: No. The only common fund where 9 we advertised was Broeker, given our lack of 10 information between the years 1975 and 1983. Because 11 we didn't bring up DB02 till '83. And we did 12 newspaper advertising. 13 MR. MURPHY: That was to locate additional 14 claimants? 11:44 AM 15 MS. MCCOY: Yes. 16 MR. MURPHY: Did you locate any? 17 MS. MCCOY: We got some responses, yes. 18 MR. MURPHY: Are you anticipating doing 19 that here in the Stavenjord case? 20 MS. MCCOY: We didn't feel that it's 21 probably going to be necessary, because the 22 information we would require is available. The '75 23 to '83 period the files are gone, there's no fiche, 24 there's no electronic track. That was the obstacle 25 there. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 104 of 134 11:45 AM 1 MR. MURPHY: Did any of the people that 2 stepped forward as a result of that advertising have 3 dates of claims that were after '83? 4 MS. MCCOY: Actually, some of the people 5 who did in fact respond to the newspaper 6 advertisement we had already identified. 7 MR. MURPHY: My question was, were any of 8 them after 1983? 9 MS. MCCOY: Some, yes. 10 MS. MURPHY: Had you identified them prior 11 to that? 12 MS. MCCOY: Yes. 13 MR. MURPHY: Had you identified them all 14 prior to that? 11:45 AM 15 MS. MCCOY: We didn't specifically track 16 that particular piece of information, so I really 17 couldn't tell you with any degree of accuracy. 18 MR. MURPHY: The Data Warehouse program 19 that Mr. Gengler used, you said it has a different 20 capability. What is that? Can you describe that 21 different capability to me? 22 MS. MCCOY: Within my limited knowledge and 23 experience with Data Warehouse, since I tend to go 24 more directly to the system, it is primarily designed 25 for report functions. And it has a little more For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 105 of 134 11:46 AM 1 flexibility, slice-and-dice information. 2 MR. MURPHY: "Slice-and-dice" being like 3 what fields to use, which exclusions to use and so 4 forth? 5 MS. MCCOY: It allows more flexibility for 6 management to create individual ad hoc reports. 7 MR. MURPHY: I hear you saying that it 8 produces a more specific report. 9 MS. MCCOY: No. What you hear me saying is 10 my direct experience with Data Warehouse is extremely 11 limited. 12 MR. MURPHY: Do you think we have fully 13 utilized Data Warehouse's ability to find Stavenjord 14 claimants in this case? 11:47 AM 15 MS. MCCOY: I don't think Data Warehouse 16 adds anything over and above the operating systems we 17 have in place, given that the information that feeds 18 Data Warehouse comes from our operating systems. 19 MR. MURPHY: But the queries that we are 20 asking, these are slice-and-dice queries and I think 21 you just told me that Data Warehouse has a better 22 ability to do that? 23 MS. MCCOY: It has that capability. I 24 never said it was better than what I can derive with 25 a query going directly into the system. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 106 of 134 11:49 AM 1 MR. MURPHY: Looking at your second search, 2 Page 11, the screen at the bottom it says, "At the 3 time, 751 files were excluded as injuries." You see 4 where I am talking about there? 5 MS. MCCOY: Yes. 6 MR. MURPHY: Were those all -- were those 7 excluded because they were improperly included, or 8 were they excluded because they were improperly 9 categorized? 10 MS. MCCOY: No. They were included 11 initially because our search parameters were, by 12 design, overly broad. Once the individual claims 13 were reviewed, it was determined these particular 14 files, even though they had met at least one of the 11:49 AM 15 search criteria, were in fact injuries and should be 16 legitimately excluded. 17 MR. MURPHY: Have you ever been involved in 18 a case where there was a contest as to whether it was 19 an injury or an OD? 20 MS. MCCOY: My hesitation is on the word 21 "contest." 22 MR. MURPHY: How about a legal dispute with 23 a competent lawyer on the other side? 24 MS. MCCOY: Now that, I'm more familiar 25 with, yes. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 107 of 134 11:50 AM 1 THE COURT: Now her hesitation is -- 2 MR. MURPHY: Well, that's the thing. 3 That's the thing, Cris, I mean, we used to fight 4 about this all the time. In fact, when the 5 limitation was 10,000 for PPD, everybody tried to 6 make it an injury. And now they are going to be 7 trying to make it OD and there's a question as to 8 which is which. I'm trying to figure out how many we 9 are going to have in the flux there. 10 MS. MCCOY: And the question to me is? 11 MR. MURPHY: Exactly. Do you agree that 12 that contest happened quite frequently during the 13 time period in question? 14 MS. MCCOY: Again, I wouldn't personally 11:50 AM 15 have categorized it as a contest. Were there 16 disagreements in terms of how we interpreted facts 17 between myself and claimant's counsel? Of course. 18 MR. MURPHY: Judge, given the fact that 19 this is not an evidentiary hearing where you're 20 taking objections and full testimony from our side, 21 I'll reserve any questions that I have for a future 22 date, if the Court allows. 23 THE COURT: Okay. Why don't we -- it's ten 24 to twelve. We have got to talk about now the 25 notification. What is -- well, first -- I should ask For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 108 of 134 11:51 AM 1 you first, you're the one sitting here typing. What 2 is the preference, I guess, and I'd try to get some 3 sense of what we might be thinking time-wise, whether 4 we push on, take a few minutes, just push on, or grab 5 some lunch, come back and do the notification? 6 MR. LUCK: My sense, Your Honor, is that we 7 can get through the notification explanation in just 8 a few minutes. 9 THE COURT: Oh, okay. Why don't we take 10 about five minutes, then, so we can just -- 11 MR. LUCK: And it frankly is not a lot more 12 than we put in our report, then subject to any 13 question on detail. 14 THE COURT: Okay. Great. Thank you. 12:00 AM 15 16 (A brief recess was taken.) 17 18 THE COURT: You want to go back on the 19 record? 20 Okay. Brad, why don't we proceed on, then, to 21 the notification. 22 MR. LUCK: Your Honor, can I ask one 23 clarifying question in relation to one of Mr. 24 Murphy's questions? 25 THE COURT: Sure. Yeah. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 109 of 134 12:04 AM 1 MR. LUCK: Cris, in the situation where 2 there might have been a legal issue between the 3 claimant and the State Fund in relation to 4 classifying the case, his claim as an injury or an 5 OD, would that create some margin of error or problem 6 with the search, that we have discussed in relation 7 to Stavenjord beneficiaries, or your results? 8 MS. MCCOY: As a practical consideration 9 for what Bill and I are doing, it would not. If it 10 tripped one of the triggers that we have put out 11 there in the query, come onto the list, we would have 12 reviewed that file anyway. Determined the facts, 13 perhaps noted that there were issues associated with 14 the file, but still make a determination based on 12:05 AM 15 those facts whether to include or exclude. 16 MR. LUCK: Was that any -- was that a 17 significant issue in relation to working through the 18 files and making up this potential Stavenjord list? 19 MS. MCCOY: Not for us, no. 20 MR. LUCK: I want to get to and work 21 through the notification matters. I think we can do 22 that quite quickly. 23 And Your Honor, we have marked for 24 identification purposes Exhibit No. 2. And that's a 25 document that would be a form to work from in For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 110 of 134 12:06 AM 1 relation to the notification that we are talking 2 about. 3 Bill, can you very briefly explain what the plan 4 is for giving notification for people identified for 5 this potential entitlement list from the State Fund? 6 MR. VISSER: Yeah. We intend to send the 7 letter, questionnaire to the final group that falls 8 into Stavenjord claimants. The process will be 9 similar to Pinckard. I don't think we have made a 10 firm decision yet to search for current addresses 11 first and then mail, or mail to the last-known 12 address. Either way, on return as undeliverable we 13 will use search engines like Lexus/Nexus, Merlin to 14 find more current addresses and e-mail. All of that 12:07 AM 15 will be kept track of when the first mailing was 16 done, then returned, and second mailing was done. 17 And in that fashion we'll try to reach all of them. 18 MR. LUCK: Let's stop at that point. The 19 State Fund will send out a letter approved by the 20 Court. A suggestion or a letter used for later 21 claimants is Exhibit No. 2 for reference purposes; is 22 that correct? 23 MR. VISSER: Correct. 24 MR. LUCK: When and if letters are 25 returned, then they will go through the process For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 111 of 134 12:08 AM 1 identified in the report working up to the fee 2 process involved in the Merlin web site to -- in 3 order to find the best available address? 4 MR. VISSER: Yes. 5 MR. LUCK: To the extent after all those 6 processes are completed and there is any additional 7 unlocated claimant, then the intention is to report 8 that to the Court for further direction? 9 MR. VISSER: Correct. 10 MR. LUCK: In terms of review, and I don't 11 want to go too far into implementation, but just to 12 complete the circle, what is the intention in 13 relation to the State Fund, Cris, in terms of ongoing 14 work at this point working off the notification list? 12:08 AM 15 MS. MCCOY: If I understood the question 16 correctly, our primary focus right at the moment is 17 more in relation to Schmill files; but if there are 18 Stavenjord issues noted on the file during the 19 Schmill review, we note it, and in appropriate 20 instances we have made the decision and have been, if 21 the undisputed liability award is already documented 22 to the file, insuring that that is being timely 23 paid. 24 MR. LUCK: I did ask a very bad question 25 that wasn't very clear. The idea here is we're -- For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 112 of 134 12:09 AM 1 the State Fund intends to send notice to everybody on 2 the final notice list, follow up on any returns for 3 bad addresses. But following that notification 4 approved by the Court, will there be a review of the 5 files on the notification list for entitlement 6 issues? 7 MS. MCCOY: Yes. 8 MR. LUCK: Is it also the plan to review 9 those files whether they get a response from the 10 claimant or not? 11 MS. MCCOY: It is our intent. 12 MR. LUCK: And then to notify everybody on 13 the notification list of the results of that review 14 after it is completed? 12:10 AM 15 MS. MCCOY: Our intent is to advise 16 applicable claimants what information we have that 17 supports an entitlement, since they also have an 18 opportunity and a right to dispute our assessment, 19 and also advise them of any deficient information on 20 the file that we would require to determine any 21 additional entitlements so they can act on that. 22 MR. LUCK: For the notification process, 23 however, the plan is to utilize the final 24 notification list, get those notices out, and then 25 double-check them with available resources on -- for For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 113 of 134 12:11 AM 1 last-known -- for updated addresses as necessary? 2 MS. MCCOY: Yes. 3 MR. LUCK: Is there anything about the 4 notification process that would indicate to you that 5 it's impossible or impracticable to get notice out to 6 potential Stavenjord beneficiaries? 7 MS. MCCOY: No. 8 MR. LUCK: I have no further questions. 9 Thank you, Your Honor. 10 THE COURT: Cris, let me ask you real 11 quick. In terms of the notification that you're 12 planning to use for Stavenjord, how, if at all, does 13 it differ from the process that was used in past 14 common fund cases? 12:11 AM 15 MS. MCCOY: Each one potentially is handled 16 differently. As an example, in Murer we did do a 17 mass mailing for notification purposes to everyone 18 who was on the Murer list. In Broeker we also did a 19 certain level of mass mailing augmented with 20 advertisement inviting people to contact us. In FFR 21 we did do a specific notification process based on 22 the data runs we had done, which were then reviewed 23 by FFR counsel. Those were approved and we simply 24 moved forward with working the files. 25 If there were deficient information, i.e., an For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 114 of 134 12:12 AM 1 impairment award on some that we thought should be 2 entitled, the State Fund took the lead on obtaining 3 that information coordinating it with that 4 claimant. 5 THE COURT: What about -- and this I guess 6 kind of goes to both identification and notification, 7 but in the original -- well, I guess it wouldn't -- 8 in the Stavenjord decision, the 2006 MT 257, prior to 9 the rehearing denial, but Stavenjord II, I guess the 10 second trip up, there was -- addressing the -- at 11 Paragraph 27 about -- this is dicta, I guess, but it 12 does -- where the court addressed, "Bears noting that 13 many of these claimants are represented by counsel 14 and will require further assistance from their 12:13 AM 15 attorneys." And I understand from the filings, and 16 for purposes of this conference, there is a 17 contention as to how many of them are. But I guess 18 from an identification standpoint, as well as a 19 notification, what is the plan or the intention if 20 there is -- in the identification I'm assuming 21 somewhere in the -- we didn't talk about this, but 22 I'm assuming there isn't a field there that says if 23 they are represented by counsel, and if so who; is 24 that correct? 25 MS. MCCOY: Actually there is. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 115 of 134 12:14 AM 1 THE COURT: There is. 2 MS. MCCOY: Yes. 3 THE COURT: So what would be the plan on 4 claimants who are potential Stavenjord beneficiaries 5 that it has been identified that they were 6 represented by counsel? Would a notification be sent 7 to the counsel, as well, or just to the claimant and 8 rely on the claimant to then bring it to his or her 9 attorney if they so desire? Or is that -- are there 10 any plans to address that one way or the other? 11 MS. MCCOY: Well, absent direction to the 12 contrary, we would likely stay consistent with our 13 organizational practice with represented claimants, 14 the communication is directed to the attorney with a 12:14 AM 15 copy to the claimant. 16 THE COURT: Gotcha. Okay. This was 17 actually a note I had made for myself before we even 18 came here, so, and I think you probably covered it. 19 But, in going through the original -- I guess the 20 Stavenjord II opinion there was a reference about the 21 parties stipulate it may be necessary for claimant's 22 claim files to be updated or augmented in order to 23 determine what PPD benefits each claimant is due 24 under Stavenjord I. And I understand that that's 25 more a determination of the amounts, I think, is what For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 116 of 134 12:15 AM 1 the court was referring to there, as opposed to 2 identification or notification. But what, if any, 3 has it been identified any augmentation or update of 4 the claims files that has been necessary, or is that 5 -- we are not at the stage yet because you are not at 6 a specific calculation yet? 7 MS. MCCOY: What I would have interpreted 8 that as is deficient information and what plan we 9 would have for remedying that situation. Which is 10 the focus behind the questionnaire we developed. 11 THE COURT: Which is Exhibit 2. 12 MS. MCCOY: Exactly. To solicit input from 13 the claimant, who is the best source of their 14 personal information, as a place for us to begin. 12:16 AM 15 THE COURT: Okay. Tom, do you have any 16 questions? 17 MR. MURPHY: Yes, a few. 18 Cris, you said you have a field to determine how 19 many claimants are represented? 20 MS. MCCOY: We have a field that contains 21 information, if there is attorney representation, 22 what it contains is the name. 23 MR. MURPHY: What percentage of these 24 claimants are represented? 25 MS. MCCOY: We did track that, but I didn't For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 117 of 134 12:17 AM 1 specifically run the numbers to determine a 2 percentage. 3 MR. MURPHY: Do you have an estimate? 4 MS. MCCOY: It will be not as precise as I 5 prefer to be, but my guesstimate would be in the 30 6 to 40 percent range. 7 MR. MURPHY: 30 to 40 percent are 8 represented? 9 MS. MCCOY: Over that span of years. 10 MR. MURPHY: How long would it take the 11 State Fund to run a query to tell us exactly what 12 percentage of this number are represented? 13 MS. MCCOY: Your best source of information 14 for that determination is actually in the manual 12:18 AM 15 review process. Our experience, again, because of 16 limitations in DB02 where that information was not 17 available to adjustors so it did not convert into 18 CMS, is likely to be under counted. 19 MR. MURPHY: I have one catch-up question 20 which might be more towards the older part. But I 21 was noticing that we talked about the statement of 22 facts, the joint statement of facts, No. 90. It 23 talks about that many of Montana State Fund's OD 24 claims were not coded as such by adjustors, 25 especially on pre-1997 claims. But the one that I For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 118 of 134 12:18 AM 1 wanted to get back to was that, "Many OD claims with 2 impairment awards were coded as TTD claims because 3 the PPD designation was thought to apply only to 4 impairment awards under the Workers' Compensation 5 Act." And I'd like you to speak to that. Are you 6 excluding those TTD claimants, the ones that received 7 impairments? 8 MS. MCCOY: No, we did not. 9 MR. MURPHY: This categorization, though, 10 where you took an impairment award and you called it 11 TDD, that was -- what is that? What happened there? 12 MS. MCCOY: Essentially what that is 13 referencing is a system limitation in CMS. At the 14 time of design, and with the applicable statutes in 12:19 AM 15 place, it was hard-coded into CMS that files 16 designated as ODs should not be recipients of perm 17 partial payments. With the advent of Stavenjord, 18 when that was no longer true, we basically had to 19 recode the entire system to allow us to make those 20 types of payments with the appropriate designation. 21 So there was a period, because our primary 22 responsibility is benefit delivery to entitled 23 claimants rather than be servants to a machine, we 24 insured that the dollars went out, even though they 25 may have been improperly coded. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 119 of 134 12:20 AM 1 For our particular purposes, because those 2 payments would in fact show as a total payment and 3 not a partial payment, Bill and I still would have 4 picked those up on our data runs, and they would 5 ultimately be reviewed, at which point it would be 6 determined that impairment benefits had in fact been 7 paid, just simply miscoded. 8 MR. MURPHY: So you are saying that it was 9 just coded as TTD for claims that were paid after 10 2001. 11 MS. MCCOY: Until we were able to make the 12 system change that would allow our staff to pay 13 permanent partial benefits using a permanent partial 14 expense code, they used a TDD expense code to insure 12:21 AM 15 benefits were timely paid. 16 MR. MURPHY: But for claims only after 17 2001, is that what you're saying? Or was it for 18 claims before 2001, too? 19 MS. MCCOY: No. We would not have paid 20 perm partial benefits on claims arising on or before 21 5/22/01. 22 MR. MURPHY: So, this TDD designation that 23 you used is only for claims paid after 5/22/01; is 24 that what your testimony is? 25 MS. MCCOY: Prospective claims only. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 120 of 134 12:22 AM 1 MR. MURPHY: Because this stipulation of 2 fact seems to be talking about the applicable time 3 period, so I'm not very clear. 4 MR. LUCK: Could we have her take a look at 5 it? 6 MR. MURPHY: It says, "Errors in data are 7 such that" -- 8 THE COURT: Yeah, why don't we. 9 MR. MURPHY: Of course. Hand her one. I 10 only have one. 11 MR. LUCK: I did. I just don't know the 12 number, Tom, if you could reference it for her. 13 MR. MURPHY: Page 14, No. 90. It says, 14 "Errors in data are such that it would lead to an 12:22 AM 15 under estimation of liability." (Pause.) 16 Cris, have you had an opportunity to read it? 17 MS. MCCOY: Yes. 18 MR. MURPHY: What I'm asking you about, of 19 course, is for what time period did you miss or did 20 they categorize impairment benefits as TTD? I think 21 your testimony was for the time period after 2001. 22 Are you sticking to that testimony? 23 MS. MCCOY: It would only apply to claims 24 with a date of exposure 5/23/01 or later. 25 MR. MURPHY: So how does these -- how do For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 121 of 134 12:23 AM 1 these errors, then, according to this last sentence, 2 how do these errors lead to an underestimation of 3 liability? If they apply -- if you only did that 4 categorization after the applicable Stavenjord time 5 period? 6 MS. MCCOY: I'm not really confident I'm 7 the proper person to be answering that. 8 MR. MURPHY: So you don't know? 9 MS. MCCOY: No. 10 MS. MURPHY: I'm going to go -- looking at 11 Exhibit 2 here, which is the proposed -- is this a 12 proposed notice that you are going to send out? 13 MS. MCCOY: Yes. 14 MR. MURPHY: And is it going to give these 12:24 AM 15 people, then, a number? Are you going to make a 16 number calculation as to the benefit available? 17 Exhibit 2 seems to have a blank there. 18 MS. MCCOY: If there are in fact, on review 19 of the file, what we would consider undisputed 20 benefits due, we would notify the claimant of that, 21 what our assessment of the entitlement is. They also 22 then have an opportunity to dispute that. 23 MR. MURPHY: Now, I'm just -- dealing from 24 common sense it would seem to me that if a person 25 gets something in the mail that says, hey, you may be For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 122 of 134 12:24 AM 1 entitled to X thousands of dollars, they are going to 2 take that a little more seriously than say a notice 3 that says you might be somebody that could get some 4 money, we don't know yet. 5 So, this determination of an actual benefit, 6 this is an important thing. The State Fund is going 7 to do it in every case they can? 8 MS. MCCOY: If the data is available and 9 supports there is an entitlement, we would notify the 10 people of that. 11 MR. MURPHY: What data are you going to 12 need? All of the five factors? 13 MS. MCCOY: Essentially what's -- some of 14 those will automatically be on file. We generally 12:25 AM 15 have information as it relates to someone's age at 16 the time of injury, their education level at the time 17 of injury. Some will have impairment ratings already 18 documented to the file. They may have had a 19 vocational workup that would allow us to determine 20 whether or not there was any loss of earning 21 capacity. The vocational workup would also tell us 22 whether or not there's an entitlement based on 23 restrictions, since there will normally be a time of 24 injury job description on the file. When those 25 things are absent, it means we need to go gather them For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 123 of 134 12:26 AM 1 to make a complete and comprehensive assessment. 2 MR. MURPHY: I am clear, though, that you 3 are going to try in every instance to suggest a 4 number to a claimant if possible, correct? A benefit 5 number, an amount? 6 MS. MCCOY: As a point of clarification, 7 I'm hoping you are not suggesting we would make 8 something up just to get something out? 9 MR. MURPHY: No, I'm not implying that at 10 all. 11 MS. MCCOY: Okay. We are both in agreement 12 there. 13 MR. MURPHY: What I'm really asking, Cris, 14 is -- what I'm concerned about, Cris, is that these 12:26 AM 15 people are going to get a letter out of the blue, 16 possibly 19 years after their claim, maybe 15, maybe 17 14 years after their claim, and the number is going 18 to be a number, and it's going to be found money. 19 And they are going to jump at it, but they are not 20 going to know that they can dispute it. That's what 21 I'm worried about. 70 percent of these people. 22 That's what I'm worried about. So, my question is 23 are you going to give them a number when possible? 24 And if you do give them a number, is it going to be 25 the disputed number, is it going to be your take on For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 124 of 134 12:27 AM 1 it, or is it going to be their take? Are you going 2 to advise them that they can have a dispute here? 3 MS. MCCOY: The letter does in fact do 4 that. If we are able to make an assessment, I think 5 it's our responsibility to advise people of that. 6 That we think this is your entitlement. The letter 7 we contemplated has two additional paragraphs, one, 8 if they have any question regarding any of the above 9 calculation it gives both Bill and my name and our 10 direct phone number to call with those questions. 11 And as is our standard practice, the mediation 12 paragraph is there, so they are aware of their avenue 13 of recourse. 14 MR. MURPHY: Well, I don't want to send the 12:28 AM 15 chickens to the fox, Cris. I mean, the point is that 16 they are coming to you to determine their rights. 17 Will they be advised that you're their adversary? 18 MR. LUCK: Is it possible, Your Honor, to 19 make an argumentative objection? I mean, we know 20 what the insinuation is and we are here to talk about 21 what we are going to do. 22 MR. MURPHY: Well, it's the issue. 23 THE COURT: Well, wait a minute. No, I 24 know. I mean, I think without the colored 25 commentary. I mean, I get your point. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 125 of 134 12:28 AM 1 MR. LUCK: Thank you. 2 MR. MURPHY: I'm looking at a notice that I 3 got for one of my clients in the Schmill case. And 4 the Schmill case, which is obviously a different 5 case, the notice tells this person exactly what she 6 is entitled to and it says here it is. Is the 7 Stavenjord letter going to be similar to the Schmill 8 letter? 9 MS. MCCOY: If there are in fact undisputed 10 benefits due, we will pay those. If people think 11 they are entitled to more, they are told how to 12 pursue that. Either -- even in the Schmill letters, 13 they can call Bill and I directly, they can call Lori 14 directly. They obviously have advantage of your 12:29 AM 15 services. And you were sent notice of this. My 16 worksheet is contained in there so they can see 17 exactly what I base the calculation on. 18 MR. MURPHY: The letter, Exhibit 2, says 19 that there is a form that they should fill out. Do 20 you have that form formulated yet? 21 MS. MCCOY: Yes, we have a draft. 22 MR. MURPHY: I don't have it attached to 23 Exhibit 2. 24 MR. LUCK: Is it the questionnaire? 25 MS. BUTLER: Is it the questionnaire? For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 126 of 134 12:30 AM 1 MS. MCCOY: 2002 questionnaire. 2 MS. BUTLER: We may have missed it, do you 3 want Kathy to go print it? 4 MR. LUCK: That's my error if it is not 5 attached to it. 6 7 (A brief recess was taken.) 8 9 THE COURT: Is there anything to cover 10 before we get the questionnaire? 11 MR. MURPHY: Let me just see. 12 Have you found in the other common fund cases 13 when you suggest a dollar figure that they're 14 entitled to that you get a bigger response rate? 12:31 AM 15 MS. MCCOY: As opposed to? 16 MR. MURPHY: If you don't suggest what they 17 are entitled to? 18 MS. MCCOY: In each of the common funds, 19 excluding Pinckard, up to this point it was a fairly 20 straightforward calculation. 21 MR. MURPHY: So, your experience is that 22 you've always suggested a number that they are 23 entitled to? 24 MS. MCCOY: We determine what the minimum 25 entitlement is. As an example, in Fisch, Frost, and For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 127 of 134 12:32 AM 1 Rausch we would obtain an impairment rating, I would 2 pay the undisputed liability award accordingly. But 3 as part of that, they were also advised of their 4 right to dispute it, but we would still pay the 5 minimum we felt was due. 6 MS. MURPHY: I know you've mentioned 7 Pinckard, Pinckard actually was a class action case, 8 it wasn't a common fund case, right? 9 MS. MCCOY: I said with the exception of. 10 MR. MURPHY: But when we talk about 11 Pinckard, it was a class action, it wasn't common 12 fund, correct? 13 MS. MCCOY: Yes. 14 MR. MURPHY: It was handled in district 12:33 AM 15 court, not comp court. 16 MS. MCCOY: Yes. 17 MR. MURPHY: I reserve any other questions 18 I have until we get that form. 19 THE COURT: Okay. 20 MR. MURPHY: Not that I have any questions 21 about that. 22 MR. LUCK: Your Honor, one thing I would 23 ask, just so the record is complete, I ask the Court 24 to take notice in relation to Broeker and the Fisch, 25 Frost, and Rausch case, those were implementations For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 128 of 134 12:33 AM 1 based on settlements. 2 THE COURT: Okay. 3 MR. LUCK: The procedures were specified, 4 particularly in very extensive settlement 5 documentation. So it might be a little apples and 6 oranges. 7 THE COURT: Do you have any follow-up on -- 8 or anything from -- based on Tom's questions while we 9 are waiting for the questionnaire? 10 MR. LUCK: No, sir. 11 THE COURT: Okay. I don't think I do. 12 13 (A brief recess was taken.) 14 12:34 AM 15 THE COURT: We'll mark this. So we have 16 got the Stavenjord information request that will be 17 attached to the transcript as Exhibit 3. And so let 18 me just take a minute and look it over, and Tom, you 19 do the same, and Brad, and if anybody has any 20 questions. 21 MR. MURPHY: May I ask a question? 22 THE COURT: Yeah. Give me one second just 23 to... 24 MR. LUCK: Your Honor, Cris indicates that 25 there's a second page to this, so we need to identify For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 129 of 134 12:35 AM 1 the second page. 2 May we take just a short break? 3 THE COURT: Yeah, why don't we take five 4 minutes. 5 6 (A brief recess was taken.) 7 8 (Exhibit No. 3 was marked for 9 identification.) 10 11 THE COURT: Go ahead, Tom. 12 MR. MURPHY: Cris, I'm looking at Exhibit 3 13 which is two pages and it's entitled the "Stavenjord 14 Information Request." Who was involved in drafting 12:43 AM 15 this? 16 MS. MCCOY: Tom Martello and Bill Visser. 17 MR. MURPHY: I'm just looking at that 18 second page, the labor activities that you designate, 19 is there any plans to put in a question about just 20 asking the person to tell you what he or she thinks 21 their physical restrictions are? 22 MS. MCCOY: There's no specific plan, but 23 our intent in presenting this is that it's an initial 24 draft. And if appropriate changes are proposed and 25 accepted, it's not an issue. Specifically with us. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 130 of 134 12:43 AM 1 MR. MURPHY: Well, this may be my only 2 opportunity to make that kind of recommendation, but 3 I would recommend that you put in these forms a place 4 for the person to tell you what he or she thinks 5 their limitations are, not just limited to what my 6 physician has said. Although that's a possibility. 7 And of course you want to know that, too, but that's 8 an example of something I think you ought to have 9 some input on. 10 Is there going to be a definition section of 11 what an occupational disease is or an injury or any 12 kind of glossary for terms? 13 MS. MCCOY: We haven't included one in this 14 particular version. 12:44 AM 15 MR. MURPHY: Are you going to reference the 16 codes for these people in case they want to go to the 17 library and look up the code? 18 MS. MCCOY: We had not contemplated that. 19 THE COURT: A copy of 703 is going to be 20 included, isn't it? 21 MS. MCCOY: As indicated in the letter, we 22 would provide them with a copy of the relevant 703 23 based on their time of exposure with the 24 notification. They would have that to review. 25 MR. MURPHY: Are you going to ask them For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 131 of 134 12:45 AM 1 about subsequent injuries or subsequent occupational 2 diseases? 3 MS. MCCOY: As the form indicates, we 4 hadn't initially contemplated it. It's a thought. 5 MR. MURPHY: Wouldn't that minimize your 6 exposure, if you had a subsequent injury to the same 7 body part? 8 MS. MCCOY: In what respect? 9 MR. MURPHY: In what respect? If you had 10 MMI and a new injury to the same body part, your 11 exposure on the old claim ends. 12 MS. MCCOY: Not necessarily. Each claim 13 stands on its on. 14 MR. MURPHY: Well, obviously I'm not going 12:46 AM 15 to argue against my position. Normally I'm saying 16 you don't get to end your exposure, and you say yes, 17 we do. And so I'm not going to be lured into saying 18 the opposite. 19 MR. LUCK: We would certainly consider 20 asking a whole laundry list of potential defenses if 21 you think that's appropriate. 22 MR. MURPHY: I'm surprised they are not 23 here. 24 MR. LUCK: Well, I could comment on that, 25 too, but I don't think I will. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 132 of 134 12:46 AM 1 MR. MURPHY: I think there are some here. 2 Those are some of my questions, I'll reserve the 3 others for later. 4 THE COURT: Any follow-up? 5 MR. LUCK: No, sir. 6 THE COURT: Thank you very much. This was 7 really helpful. Like I said, rather than looking at 8 the cold page and that, this was -- and having kind 9 of the give-and-take was really helpful and I 10 appreciate that. 11 So, we'll get a transcript, I think we'll 12 probably post the transcript on the web anyway, but 13 we'll provide you guys obviously with copies of the 14 transcript. And then I want a chance to look that 12:47 AM 15 over and kind of look everything over. I may have, 16 just because I know I frequently do whenever I've had 17 a trial, it's -- rare is the occasion when I'm not 18 then reading the transcript and going, oh, why didn't 19 I ask that. So I may have some additional questions. 20 If I do, I think we can do it pretty informally, 21 whether by conference call or maybe just e-mail or 22 something like that. So, I mean, whether it's 23 something that needs a clarification or something, I 24 don't know, I'm just basing it on my past experience 25 on my infirm ability to think of asking everything. For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 133 of 134 12:47 AM 1 Okay? 2 So we will go off the record. Thank you. 3 MR. LUCK: Thank you, Your Honor. 4 5 (End of proceedings.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264 Page 134 of 134 1 2 CERTIFICATE 3 STATE OF MONTANA } } ss: 4 COUNTY OF Lewis and Clark } 5 6 I, Julie L. Sampson, Professional Court Reporter, a notary public in 7 and for the aforesaid county and state, do hereby certify that: 8 I am a duly-appointed, qualified, and acting Official Court Reporter 9 for the Workers' Compensation Court of the State of Montana; that I reported 10 all of the foregoing proceedings had in the above-entitled action, and the 11 foregoing transcript contains a full, true, and correct transcript of the said 12 proceedings to the best of my ability. 13 IN WITNESS WHEREOF, I have hereunto set my hand this _____ day 14 of ___________________, 2007. 15 16 _____________________________________ Julie L. Sampson 17 Professional Court Reporter 18 19 20 ______________________________________ (SEAL) Julie L. Sampson 21 Notary Public for the State of Montana Residing at Butte, Montana 22 My Commission Expires July 10, 2010 23 24 25 For The Record Reporting Services, LLP Butte - (406) 498-3941 Helena - (406) 461-5264