the official publication of aw cca, inc. in this issue ...€¦ · arizona state legislature...

T H E O F F I C I A L P U B L I C AT I O N O F A W C C A , I N C .

In this issue

The second regular session of the 51st

Arizona State Legislature adjourned on April

24, 2014. although Governor Brewer called

the Legislature back into session to work on

development of the new Child Safety and

Family Services agency which she created

in the wake of recent headlines about over

6,000 potential child abuse cases which went

uninvestigated by Child Protective Services.

Included among the bills passed by the

Legislature were several relating to workers’

compensation claim handling:

HB 2094 was introduced by District 28

Representative Kate Brophy McGee (R) after

what just about everyone in the defense

community agreed was a poorly reasoned

decision from Division One of the Arizona

Court of Appeals in the Acosta vs. Kiewit-

Sundt case. In that case, injured worker

Alvaro Gonzalez Acosta asked SCF Arizona to

reassign to him, SCF’s second-year recovery

rights to his tort liability claim so he could

pursue a lawsuit against Kiewit-Sundt. When

SCF refused, Acosta filed suit against Kiewit-

Sundt anyway on March 15, 2012. Kiewit-

Sundt responded with a motion for summary

judgment, arguing that A.R.S. §23-1023

required Acosta to obtain a reassignment

before filing suit. When the trial court granted

Kiewit-Sundt’s motion, Acosta appealed.

In what the defense community considered

to be a tortured ruling, the Court of Appeals

decided that when the Legislature amended

A.R.S. §23-1023 (B) in 2007 in order to expand

the rights of carriers and self-insureds in third-

party actions, it really meant to reduce the

rights of carriers and self-insureds by removing

the statutorily required reassignment of

a third-party tort claim after the first year

following injury. It based its ruling on the fact

that the 2007 amendment of A.R.S. §23-1023

(B) removed the words “shall be assigned

to the insurance carrier”. According to

the Court’s ruling, “Because the ‘deemed

assigned’ language was deleted from §23-

1023(B), the employee’s claim no longer

passes by operation of law to the insurance

carrier upon the employee’s failure to bring an

action within one year of the claim’s accrual.

Consequently, §23-1023(B)—as amended

and applicable to Acosta’s case—clearly

and unambiguously does not require a

reassignment for the injured employee to

bring a claim.” The Court ignored the fact

that A.R.S. §23-1023 still included language

stating a tort claim “may be reassigned in its

entirety to the employee or the employee’s

dependents” by the work comp carrier—

language which certainly indicates the rights

to the tort claim were owned by the work

comp carrier since rights can’t be reassigned

if they aren’t held in the first place. To address

Legislature Addresses Various Work Comp Issues

Continued on page 2…

Legislature Addresses Various

Work Comp Issues ................

President’s Message .............. Page 3

Annual Charity Golf Tourney

Raises Over $36,000 ............ Page 6

2014 AWCCA Golf

Tournament Results ............... Page 7

New AWCCA Officers

Elected ................................. Page 8

Phonies on the Phone ........... Page 9

2014 Fred Brick Rehabilitant

Honorees Recognized..........Page 14

Who’s Afraid of the

Big Bad Faith? ....................Page 16

Stem Cell Therapy Today:

An Evidence-Based Review

of Current Clinical

Applications ........................Page 18

Spring 2014

By Jim Gill, Examiner Editor

…Legislature Address continued from page 1

what it believed to be a discrepancy in

the 2007 amendment of the statute, the

Court characterized the retention of this

language as a “drafting oversight”.

SB 2094 addresses the Court of Appeals’

decision (which, according to Kiewit-

Sundt’s attorneys, is currently on appeal to

the Arizona Supreme Court), and clearly

spells out the fact that an employee

entitled to workers’ compensation has

one year to pursue a third-party tort claim

or the claim will be deemed assigned

to the insurance carrier or self‐insured

employer.

HB 2221 was introduced by District

1 Representative Karen Fann (R). The

bill modifies the requirements for the

prescription of controlled substances to

workers’ compensation recipients by:

• Requiring physicians to include

certain information regarding a

workers’ compensation claimant’s

use of narcotics in a physician’s

report without the need for a

request by a work comp carrier

or self-insured employer, and

requiring documentation that the

medication regimen is providing

relief demonstrated by clinically

meaningful improvement in

function (defined as documented

improvement in range of motion;

an increase in performance of

daily activities; or return to gainful

employment).

• Requiring a medication agreement

be included in a claimant’s

treatment plan; requiring random

drug testing; and, requiring the

physician to provide a report of how

they plan to address any inconsistent

results revealed by that testing

• Requiring physicians to submit an

inquiry to the Arizona State Board of

Pharmacy requesting information

monitored by the Controlled

Substances Prescription Monitoring

Program database within two days

of prescribing opioids for 30 days or

more (with additional inquiries not

being required more than once

every two months)

• Requiring physicians to report a

positive database inquiry to the

carrier or self-insured employer within

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The 2013 /2014 AWCCA membership year is coming to an end. I can’t let that happen

without telling everyone I have been working with how much I really appreciate their

hard work and dedication to this wonderful organization!

First I want to thank Susan Franzen, our Vice President (and incoming President), for

all her work. Not only did she secure our speakers, she really helped out with keeping

our master membership list correct and current all year. Susan was also instrumental

in getting all the Board officer job descriptions completed so that we could post on the

new website, and so much more. Thank you for your valuable support! Cathie Chavez

has been the treasurer for 3 years now, and she has moved our banking into the new age

by securing our e-commerce for the website. Cathie, you are the best! Ysela Gaspar

our interim secretary, has graciously volunteered and continues to volunteer. Your

time and efforts mean a lot. I want to thank each of our members at large for their

contributions and time; Debbie Hill, Linda Barton, Eadie Ostlund, Leslie Olmsted,

Helen Olson, Russ Lyons, Donna Huetter, Debbie Walker and Queen Woods. The

AWCCA would not have the success it enjoys without the hard work of our Committee

Chairpersons; Sam Lloyd, Susan Williams, Liz Florez, Erin Finn, Dawn Ripa, Dave

Stewart and Maryann Karstendiek. Because of all the work you have done this year, we

have been able to bring to our community and board, a new website that should help

us all going forward. Thank you all so much! We can’t forget Jim Gill, who is the face

of the AWCCA, for all he does. He single handedly edits The Examiner, is the emcee

at most of our events and is our number one go-to guy that has the detail orientation

for our documents and contracts. He has attended almost every Board meeting since

2008. That’s dedication. Jim, I really value that you have my back!

The workers’ compensation community enjoys a lot of benefits which are the direct

result of the hard work our volunteers perform. Remember though, that the benefits

we receive should not be the responsibility of only a few who volunteer over and over

again. For that reason I encourage those of you who have not yet served on the

Executive Board to consider doing so. The experience is very enriching and doesn’t

look bad on your resume. For those of you who volunteer, thank you for your work!

Please remember we are only as good as the feedback we get from our community.

Please feel free to write to the Examiner Editor, offer to write articles and advertise in

The Examiner. If that seems too daunting, feel free to call me with any suggestions or

comments. Enjoy the rest of your spring!

Donell Hewitt

2013 / 2014 AWCCA President

President’s Message

The New AWCCA.org: Open For Business! In case you haven’t noticed the improved online “look” of AWCCA, check out our new website at www.awcca.org. You’ll find the new website is much more interactive and user friendly, making it easy for you to:

• Joinorrenewyourmembershiponline• Registerforupcomingdinnermeetingsandotherevents• ReviewandupdateyourAWCCAmemberprofile• Accesshelpfulweblinks• AccesscurrentandarchivedcopiesofThe Examiner newsletter• Respondtomembershipsurveys• IdentifyjobopportunitiesintheArizonaworkers’compensationindustry• ContactAWCCABoardmembers• AccessinformationaboutsomeofthecharitableorganizationsthatbenefitAWCCAcontributions

As an added convenience, you can now use the website to pay for upcoming dinner meetings using a credit card.

For quick access to the most current AWCCA news and information, remember to bookmark www.awcca.org in your internet browser.

five business days if the claimant has

not previously disclosed receiving

opioid medications or prescriptions

from another health care provider

• Clarifying that insurance carriers,

self-insured employers and the ICA

are not responsible for payment to

physicians who don’t comply with

reporting procedures

• Modifying change of physician

requirements for physicians who

are non-compliant with reporting

requirements and specifying that the

replacement physician’s practice

must include pain management

• Specifying that workers’

compensation insurers or self-

insured employers are responsible

for drug rehabilitation treatment for

claimants who become addicted to

opioids prescribed for an on-the-job

injury, and in the case of a medical

conflict, directing continued

payment of opioid prescription

bills until adjudication by an ICA

Administrative Law Judge

• Specifying workers’ compensation

carriers or self-insured employers

aren’t responsible for certain

medications prescribed by out-

of-state physicians to out-of-state

claimants if the physicians don’t

comply with Arizona opioid reporting

requirements

• Clarifying that insurance carriers

or self-insured employers taking

action relating to physician reporting

requirements are not liable for bad

faith or unfair claim processing

HB 2221 also states that workers’

compensation carriers or self-insured

employers are not liable for any

medical, surgical or hospital workers’

compensation benefits unless bills

are received and a court action for

payment has begun within two years

of the date of medical service.

SB 1181, introduced by District 17 Senator

Steve Yarbrough (R) transfers the rights

and obligations for payment of insolvent

carriers’ workers’ compensation claims

from the Special Fund of the Industrial

Commission of Arizona (ICA) to the

Arizona Property and Casualty Insurance

Guaranty Fund. The law requires the ICA

to transfer $222,848,153 in assets from

the Special Fund to the Guaranty Fund

at least 30 days before the law goes

into effect on July 1, 2015. Although not

directly related to claim handling, this

bill also reduced the ICA’s Special Fund

taxing authority under A.R.S. §23-1065 (A)

from 1.5 percent of premium to 1 percent

of premium and it eliminates the Special

Fund’s 0.5 percent of premium taxing



AWCCA Mission Statement:

The purpose andobjectivesofthis

association shall be to promote

the general welfare of its members

by developing close relationships

among those engaged in

the handling of workers’

compensation claims; to promote

cooperation by mutual exchange

of experiences and information

and discussions thereon and, to

educate its members.

The Examiner is published

quarterly by AWCCA, Inc., P.O.

Box 44941, Phoenix AZ , 85064-

4941. All articles appearing in this

publication contain the opinions

of the authors and not necessarily

the opinions of AWCCA, Inc., its

officers or editors. AWCCA, Inc.

encourages the submission of

new ads and articles, subject to

editing. Signed letters to the editor

are welcome. AWCCA, Inc. seeks

to provide a forum for the free

exchange of ideas and opinions.

No Tweeting Required!Nope—youdon’tneedasmartphoneoratabletandyou’renotlimitedto140characters;justlikeinthegoodold

days, you can still contact AWCCA via the U.S. Postal Service!

All U.S. mail correspondence including checks, membership applications, hard copies of Letters to the Editor of The Examiner and other items addressed to the organization or its officers should be sent to:

AWCCA, Inc.P.O. Box 44941 • Phoenix, AZ 85064-4941

authority under A.R.S. §23-1065 (D). The bill

does not affect workers’ compensation

obligations of insolvent or bankrupt self-

insured employers which will remain under

ICA jurisdiction.

Of note, there were several workers’

compensation claim-related bills which

did not pass, including:

HB 2455, introduced by District 15

Representative John Allen (R), which would

have re-established the ICA (vs. Arizona’s

superior courts) as having exclusive

jurisdiction over civil actions arising out

of allegations of workers’ compensation

bad faith. The bill would have increased

penalties for intentional bad faith to

$5,000, provided penalties of up to

$1,000 for unintentional bad faith, and

allowed for penalties of up to $10,000 on

cases in which there was a pattern of bad

faith. The bill was amended to eliminate

ICA jurisdiction in cases filed in federal

court so as not to impact police officers,

firefighters and other public employees.

Some public entity labor organizations

remained opposed to the bill even after

federal court lawsuits were exempted.

Proponents of the bill reportedly plan

to discuss legislative alternatives over

the summer prior to the next legislative

session.

HB 2040, introduced by District 12

Representative Eddie Farnsworth (R),

which would have allowed injured workers

(excluding employees of self-insured

employers) to select the pharmacy or

pharmacist of their choice for workers’

compensation prescriptions. The bill was

opposed by the insurance industry and

never received a hearing in the House of

Representatives.

SB 1075, introduced by District 23 Senator

Michele Reagan (R), which would have

exempted work comp insurance carriers,

self-insured employers or the ICA from

having to pay for medications dispensed

directly by a physician unless the amount

of medication was no more than a 7-day

supply and unless it was dispensed within

72 hours of the injured worker’s accident

(later changed to a period of 14 days

after the claimant first sought treatment).

For full versions of any of the bills

referenced, visit: www.azleg.gov and click

on the “Bills” icon.


• The ability to take credit cards,

which increased the amount we

were able to collect;

• The power point loop of the

sponsor and donor logos presented

in the lunch area;

• GPSonthegolfcartswithallthe

sponsors logos playing in a loop,

decreasing the set up time on the

course;

• No golfer pre-flights, making it

easier to space the golfers out and

to mix up the field;

On behalf of the AWCCA Golf

Committee, we would like to thank

all of our event sponsors and all who

donated and participated in this year’s

charity golf tournament.

The event was another great success!

We were able to donate $16,800 each

to Arizona Adoption and Foster Care

and Kids’ Chance of Arizona.

Some of the new changes to this year’s

event were:

ANNUAL CHARITY GOLF TOURNEY RAISES OVER $36,000• Providing a post-tournament

survey which has given us some

good information on how to

improve for next year.

We look forward to seeing everyone on

May 1, 2015 at next year’s event!

Best Regards,

Sam Lloyd, Grace Nolan, Liz Florez

Golf Tournament Chairpersons

2014 AWCCA Golf Committee

Amanda Smith

Beky Lollich

Bill Klein

Chris Norton

Dawn Ripa

Debbie Hill

Donell Hewett

Donna Anselmo

Eric Simmons

Tom McLaughlin

Erin Finn

Grace Nolan

Heather Bataille

Helen Olson

Janet Nilsen

Jason Torres

Joseph Strange

Kevin George

Kurth Grutsch

Leslie Olmsted

Linda Barton

Liz Flores

Marion Cockrell

Rachel Brozina

Sam Lloyd

Susan Franzen

Susan Williams


2014 AWCCA Golf Tournament ResultsThe 22nd Annual AWCCA Charity Golf

Tournament was held on May 2nd at

the Camelback Golf Club in Scottsdale.

The event raised well over $33,000 for

the two designated charities, Arizona

Adoption and Foster Care and Kids’

Chance of Arizona. Committee Co-

Chair Sam Lloyd presented checks

of $16,800 each to representatives

of each charity at the May dinner

meeting.

Tournament teams were flighted by

score without handicaps. Results are

listed as follows:

A Flight – 1st Place Team: Score: 56

Cheryl Altman

Tom Long

Jim Schade

Dr. William Leonetti

A Flight – 2nd Place Team: Score: 57

Chris Norton

Joseph Strange

Colby Myers

Keith Brown

A Flight – 3rd Place Team: Score: 57

Diane Miner

Paul Zerkovich

Chuck Rehling

Scott Houston

B Flight – 1st Place Team: Score: 61

Steve Baker

Paul Chambers

Casey Kurth

Bill McCarty

B Flight – 2nd Place Team: Score: 61

Timothy Yingling

JD Mowlds

Jack Flunnery

Patrick Pearson

… 2014 AWCCA Golf continued from page 7

B Flight – 3rd Place Team: Score: 61

Alberto Rivera

Amaro Ngo

Keith Woebbeking

Brent Palmer

C Flight -- 1st Place Team: Score: 69

Dr. Zoran Maric

Ron Jones

Bruce Martin

Jody Wood

C Flight – 2nd Place Team: Score: 69

David Klecka

Heather Bataille

C Flight – 3rd Place Team: Score: 69

Dr. Anikar Chhabra

Dr. Joseph Haber

Dr. Grant Padley

Highest Score: 79

Rachel Brozina

Cheriti Hendricks

Sonja Clayton

Patti Grimes

To see photos of some of the

tournament participants, check out

the “Chapter News” section of the new

AWCCA website at: www.awcca.org.

At the May meeting which

concluded the 2013-2014 meeting

year, AWCCA’s regular members

elected two new officers to join the

AWCCA Executive Committee

for the 2014-2015 meeting year.

Congratulations to newly elected

AWCCA Vice President Laura

Reitz of Republic Indemnity, and

newly elected AWCCA Secretary

Donna Huetter of the Maricopa

County Community College

District. Laura will serve a two-

year term, including one year as

Vice President and one year as

President. Donna will serve a two-

year term as well.

Laura and Donna join new

AWCCA President Susan Franzen

of the Valley Schools Insurance

Trust and AWCCA Treasurer

Cathie Chavez of Broadspire

on the 2014-2015 Executive

Committee.

NEW AWCCA OFFICERS ELECTED

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Phonies on the Phone

In the fall issue of The Examiner,

we touched on the non-verbal body

language and “tells” of a person-to-

person interview, how the interviewee

is projecting, and how to interpret

these non-verbal signs. We learned

that only 10 percent of actual

communication is transmitted by

the spoken word. How then, do we

determine the veracity of a person’s

“spoken word” when you are engaged

in a telephonic statement?

Because of time, distance, or costs,

it usually is impractical to conduct

this face-to-face type of investigation

with “peripheral” witnesses. These

are individuals who are not under

suspicion, but may have information

that helps fill in the blanks or provide

further leads. If, of course, the person

is the main focus of your investigation

or a pivotal witness, then extra effort

should always be made to conduct

this interview directly one-on-one.

Okay, let me point out the obvious

right now that cold calling sucks with

a capital “S.” It can be awkward,

poorly timed for the other person,

generate suspicion in being suddenly

contacted over the phone by a voice

identifying themselves as an insurance

agent, create a reluctance to talk about

an upsetting situation or sensitive

information, or … whatever.


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Of course, we’re not reinventing the

wheel here and there are common-

sense steps to help smooth out these

telephonic discussions. They might

seem self-evident and simple, but

unless you routinely do these types of

investigations, you should first start

by initially doing your …

Ground Work.

1. Try at all times to use a landline

rather than a cellular telephone.

The handset won’t drop the call

and is more comfortable wedged

between your shoulders and

chin. Avoid the confusion of both

multi-line conversations as well

as conference calls, unless it is a

business interview.

2. Work from your office so that

the background environment

is controlled. You’ll have

whatever resources at hand, be

comfortable, and be in the proper

“business” frame of mind for the

conversation.

3. Re-familiarize yourself with the

pertinent facts of the situation as

they relate to the interview and

always keep in the front of your

mind what you hope to learn from

this particular witness.

4. Have your questions already

printed in front of you and in

the general order you plan to ask

them. This will also add another

safeguard that you’ve asked

everything you wanted to when

the witness inevitably gets off

course or leads your conversation

in an unproductive direction.

Because you’ve got everything

already written down and you’re

not concerned if anything is

missing, you’ll be able to pick up

more inconsistencies for follow-up

clarification and not be thinking

about your next questions.




5. Plan to contact this individual

at a time when both you and

they are available for a complete

interview. You’ll most likely have

some notion of the witness’ free

time and how this can dovetail

into your schedule. Because

we’re imposing on the person’s

accessibility, they might not really

want to talk in the first place, so

flexibility is the key here. Also

be certain that your company

doesn’t turn off the lights if you’re

interviewing at the end of the

day (not unheard of) and avail

yourself of any restroom needs

beforehand (also not unheard

of). If the contact is not a great

imposition, the witness likely will

want to help out because …

It’s Nice to be Needed.

Did I mention that cold calling

sucks? Well it does. It sucks even

worse, though, if you’re the one on

the other end of the phone when an

agent interrupts your day seeking

information.

1. Don’t rush your introduction

with a robotic “Done this a

hundred times before” voice, the

reason for your call, and why

you’re specifically seeking out this

particular person. Once you’ve

finished explaining yourself,

the witness will certainly ask,

again, who you are, why you’re

calling them, and “How’d you

get my number anyway?” This

last question is actually a clean

segway to expound on how you

actually DID get this person’s

listing, the solid role they have in

assisting with your investigation,

and what a singularly special help

this interview is!

2. Openly share what information

you can with your witness so

that they not only feel included,

but that you can demonstrate

the intimate knowledge of the

situation you have that most

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people don’t. This builds both

rapport and confidence as well as

helps greatly with cooperation,

if the individual is going to

cooperate at all.

3. Keep the conversation (and

remember that this IS only

a conversation, not an

interrogation) easy flowing and

natural.

4. The objective is to learn what this

specific person knows about your

incident, so don’t “script” your

call by reading woodenly from

your prepared questions. You’re

not trying to sell them a software

upgrade and they can hang up

anytime. The goodwill that’s

being built at this stage will help

later if you find the need to call

back for clarification.

5. Ask questions that are open-

ended, that prompt the witness to

answer with a narrative and then

just sit back and give them…

The Silent Treatment.

Probably the hardest thing for an

interviewer to do, but also the most

important, is just be quiet and actually

process what you’re currently being

told. I’ve got a good friend who’s a

long time county homicide detective

and he’s said that people will convict

themselves if you just ask a question

and then wait out the answer.

1. In a face-to-face interview such as

the ones this detective conducts,

the silence between the asked and

the answered is unquestionably

uncomfortable. When the back

and forth dialogue is only over the

phone without the benefit of body

language, however, the silence of

an open phone line is deafening,

especially if you’ve already built

up your “compadre” rapport.

Just…wait…it…out. This not

only gives the agent a chance to

mentally take a deep breath, but

also to reorganize the progress of

the interview. When the witness

asks, after the pregnant pause,

“Are you still there?” Simply

answer, “Sure. I just thought you

were in the middle of telling me

more… go on.”

2. After the interval of silence, the

interviewee may wander around,

which is fine if you’re the above-

noted homicide detective with

nothing but time to kill (pun

intended.) You and I, on the other

hand, will need to “encourage”

the witness to explain their answer

fully, which is one reason why the

silent treatment is effective. This

doesn’t, however, give them the

liberty to drift off into the weeds,

so lead the individual back to

expounding only on what was

asked. Having your questions

written down also helps to keep

you on pace when the interviewee

gets off track.

If you’re satisfied with the answers

and think you’ve fulfilled the scope of

your interview, it’s time to…




Pull the Plug

1. Ask the witness if you can call

back should you have any follow-

up questions. Since you’ve

established you professional

rapport and the fact that this

individual is such a positive part

of your investigation, they should

be amendable to being contacted

again.

2. Answer the inevitable “What’s this

all about again?” questions with

only what you revealed to them

before adding, “I really would

like to tell you more but can’t

right now because it’s an ongoing

investigation. You understand

I’m sure” or some such thing.

3. Make sure your witness has

someone’s contact information

in case they remember something

else or a helpful lead.

Successful telephone interviews are

so much more difficult than face-to-

face conversations as you not only

lose the visual ebb and flow, but

also the witness’ “tells” (see The

Examiner Fall 2013 Issue). You’ll

need to not only concentrate on what

you’re being told, but also on what’s

not being said, while only have a

strangers transmitted voice to go by.

Until Skype and other visual mediums

become more commonplace, you’ll

need to heavily rely on your ability to

prepare, initiate, and then interpret.

Have a safe summer and see you next

fall.

As has been an AWCCA tradition for well

over a decade, the last dinner meeting

of the 2013-2014 meeting year was

devoted to honoring recipients of the

Fred Brick Memorial Rehabilitant of the

Year Award. Fred Brick was a labor market

consultant, vocational counselor, and a

valued member of the Arizona workers’

compensation community. He passed

away early in 1992 due to complications

from cancer. Fred’s presence has

faded, but the memory of him and all

he accomplished and contributed to the

Arizona work comp community remains

strong. Thus, the Fred Brick Memorial

Rehabilitant of the Year Award was

established in 1992 in his honor. The Award

recognizes injured employees who have

worked hard to reach their maximum

rehabilitation potential, even if they have

not returned to regular employment.

Fred Brick Chairperson Erin Finn emceed

the annual May event, which was

attended by most of this year’s nominees

and their families. Cash awards and

certificates were presented to each

of the nominees, with recognition also

2014 Fred Brick Rehabilitant Honorees Recognized

being given to the doctors, nurse case

managers and rehabilitation professionals

who helped each nominee achieve their

maximum level of improvement.

This year’s nominees included:

1st Place Honoree: Loren Key

Nominated by Rehab Without Walls

2nd Place Honoree: Steven Owens

Nominated by Paradigm

3rd Place Honoree: Christopher

Sullivan

Nominated by Rehab Specialists Group

(RSG)

Honorable Mention Honoree: Eduardo

Acosta

Nominated by Restore of Arizona

Honorable Mention Honoree: Robert

Ballas

Nominated by Touchstone Rehab at

CareMeridian

Honorable Mention Honoree: Sean

Barnes

Nominated by Rehabilitation Specialist

Group (RSG)

Honorable Mention Honoree: Peter Bina

Nominated by Encore Unlimited and

CareMeridian

Honorable Mention Honoree: Nicholas

DeGiacommo


Honorable Mention Honoree: Juan

Flores

Nominated by Encore Unlimited

Honorable Mention Honoree: Laurence

Howell

Nominated by Paradigm (Alaris Group –

Alaris Advantage)

Honorable Mention Honoree: Kenneth

James

Nominated by Paradigm

Honorable Mention Honoree: Robert

Potter

Nominated by Rehabilitation Specialist

Group (RSG)

Honorable Mention Honoree: Eddie

Steele


1st Place Fred Brick Memorial Rehabilitant of the Year Honoree Loren Key addresses

attendees at the May AWCCA dinner meeting after receiving his award.

2nd Place Fred Brick Memorial Rehabilitant of the Year Honoree Steven Owens poses with his family

and his award at the May AWCCA dinner meeting.

3rd Place Fred Brick Memorial Rehabilitant of the Year Honoree

Christopher Sullivan after receiving his award at the May

AWCCA dinner meeting.

Not long after the May 13 Fred Brick Rehabilitant of the Year Awards Dinner, the following letter was received from Honorable Mention Honoree Peter J. Bina along with a

donation to the Fred Brick Memorial Foundation:

For those of you who attended the

AWCCA seminar in February 2013, you

heard my partner, Chris Norton, discuss

the new waves being made in bad faith

litigation. With plaintiff’s firms pursuing bad

faith litigation more aggressively, folks in

claims administration ought to take heed.

In June 2013, nine plaintiffs joined

together to pursue a lawsuit against third-

party administrator York Risk Services

Group. The suit was filed in federal district

court for the District of Arizona. See, Miller

et al v. York Risk Services Group, Case

No. 2:13-cv-01419-JWS. The crux of the

plaintiffs’ complaint is two-fold: 1.) that

York, in concert with the City of Phoenix,

conspired to wrongfully deny the plaintiffs’

workers’ compensation claims, in violation

of the Racketeer Influenced and Corrupt

Organizations Act (RICO); and 2.) that York

aided and abetted the City of Phoenix in

violating Arizona law by breaching its duty

of good faith and fair dealing.

The specific details of what transpired with

each plaintiff’s workers’ compensation

claim is detailed in the Complaint

that was filed in June 2013. Generally,

each claim was either denied at the

compensability phase or closed based

upon the outcome of an independent

medical examination opinion. Each

plaintiff protested the denial or closure

notices on their claim with the Industrial

Commission and prevailed in either

having the claim deemed compensable

or keeping the claim open for further

active medical care.

In order for a plaintiff to recover under

the RICO statute, he/she must prove

that there was a pattern of racketeering

activity by an enterprise that caused

an injury to the plaintiff’s business or

property. York filed a motion to dismiss

the action, alleging that the RICO law

Who’s Afraid of the Big Bad Faith?By Rachel Brozina, Lester, Norton & Brozina, P.C.


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was not intended to provide a remedy

to workers’ compensation claimants and

that the plaintiffs had failed to show that

they had injuries in “business or property.”

The court entertained the motion and

concluded that the Arizona workers’

compensation statute creates a property

right in workers’ compensation benefits,

citing to the mandatory language that

an employee “shall be entitled to receive

and shall be paid such compensation for

loss sustained on account of the injury.”

See A.R.S. §23-1021. Furthermore, the

court added that an injured worker is a

third-party beneficiary to the insurance

contract between the carrier and the

insured, and that contractual right is a

property right. It rejected York’s argument

that RICO was not intended by Congress

to extend a civil remedy to plaintiffs as

a “supplement” to the state’s workers’

compensation scheme.

In addition to moving to dismiss the

action based upon the RICO statute, York

also argued that the claim for aiding and

abetting the City of Phoenix in acting in

bad faith should be dismissed. It argued

that York, as a corporation, cannot aid

and abet in and of itself because the

corporation can only act through its

employees and agents. The court denied

York’s argument, citing to other Arizona

case law that establishes that actions of

an agent of a corporation is sufficient to

establish a cause of action for aiding and

abetting.

Finally, York moved to dismiss a particular

plaintiff’s actions because he sought

recovery for his deceased wife’s “pain and

suffering,” which is not a basis for recovery

under the RICO or good faith and fair

dealing claims. After oral arguments

were presented by both parties, the court

determined that the particular plaintiff’s

claims must be dismissed.

Since the court determined that the

plaintiffs’ actions should not be summarily

dismissed under either theory of recovery,

the parties are now in the process of

discovery and several discovery disputes

have arisen. It remains to be seen whether

the case goes to trial and how the court

will view the evidence; in the meantime,

however, the court’s analysis lends some

guidance as to which causes of action

may be pursued against carriers and third

party administrators.

For those of us in claims administration or

representing carriers, TPAs, and employers

in workers’ compensation, we ought to all

have a healthy concern about the new

paths being forged in “big bad faith”

litigation.

Rachel Brozina is a shareholder with

Lester, Norton & Brozina, P.C. Her practice

involves the representation of carriers,

third-party administrators, self-insured

employers, and uninsured employers in

workers’ compensation matters. She is

an Arizona native (Bear Down!) and has

practiced in Arizona since 2009.

… Who’s Afraid continued from page 16

STEM CELL THERAPY TODAY: An Evidence-Based Review of Current Clinical Applications

The use of stem cell therapy is much

more common than most people

realize. In fact, stem cell therapy has

been used for over 30 years. Bone

marrow transplantation for leukemia

is the most used form of stem cell

therapy world-wide. Today however,

new indications and stunning results

are driving growing curiosity and

popularity amongst patients and

practitioners alike. There is a vast

desire for more information about the

potential uses of these native cells in

other disease states. Chronic diseases

that plague our population such as

heart disease, stroke, degenerative

joint disease, neurologic disorders

are being studied domestically and

abroad with notable and significant

clinical outcomes. A search through

the search engine PubMed shows

23 million citations for biomedical

literature relating to this topic. So,

what are stem cells? Where do they

come from? How do they work?

Do they really help? This article

intends to answer these questions and

distinguish the myth from the facts of

stem-cell therapy.

WHAT ARE STEM CELLS?

Stem cells are cells within the body that

reside in adult bone marrow, fat, as

well as other tissues and organs of the

body. Stem cells have the remarkable

potential to divide, develop into

different types of tissue cells, and have

a natural ability to repair damaged

tissue. Isolated from the human

umbilical cord, bone marrow or fat,

these cells have the ability to become

different cell types (i.e. nerve cells,

liver cells, heart cells, and cartilage

cells). This ability is referred to as a

cell being “multipotent.” Scientific

studies have shown that these cells are

capable of homing to and repairing

damaged tissue. Animal studies have

shown that these stem cells secrete

proteins and peptides that stimulate

healing of damaged tissue, including

heart muscle and spinal cord.

Perhaps a simplified way of thinking

of stems cells is to consider them

as sort of internal repair system,

replenishing other cells throughout

the body’s life space. As the body

ages, stem cells become fewer in

number and lose their innate ability

to regenerate tissues. Given their

unique regenerative abilities, stem

cells offer new potential for treating

diseases such as osteoarthritis, chronic

inflammation, acute muscle, bone,

tendon, and nerve injuries.

There are three major sources of

stem cells: 1) Human umbilical cord

-derived stem cells 2) Adipose-derived

stem cells (from fat stores within the

body) and 3) Bone marrow-derived

stem cells.

Umbilical cord stem cells reside

in the umbilical cords of newborn

babies. These stem cells, like all post-

natal cells, are “adult” stem cells. In

contrast to “multipotent” stem cells

from the umbilical cord, fat –derived

stem cells are not multipotent, and

essentially are not available to the

rest of the body for repair or immune

modulation. However, experimental

studies suggest fat derived stem cells

not only can develop into new tissues

but also suppress pathological immune

responses as seen in autoimmune

diseases. Fat derived stem cells have

been used for successful treatment of

companion animals and horses with

bone and joint injuries for the last five

years with positive results.

WHAT IS STEM CELL THERAPY?

Stem cell therapy is the use of stem

cells to treat or prevent a disease or

condition. Aside from use in bone

marrow transplants, research is

underway to develop various sources

for stem cells, and to apply stem cell

treatments for neurodegenerative

diseases and conditions such as

multiple sclerosis, diabetes, heart

failure, autism, cerebral palsy, stroke,

and spinal cord Injury. Research

has shown a useful role in reduction

of painful conditions secondary

to trauma or post-surgically that

respond well to treatments with stem


By Sheba Shah, M.D.

… Stem Cell Therapy continued from page 18

cell therapy. The FDA approved

the usage of stem cell therapy for

indication of “Pain.” Current stem

cell therapy can be administered

intravenously, intrathecally (into the

spinal fluid), intramuscularly, intra-

articularly (into a joint), making them

possible for use in virtually any part

of the body.

CURRENT STUDIES

Neurospine and orthopedic spine

surgeons have recently published

clinical studies indicating that the

use of stem cell allograft during

spine surgery greatly diminishes the

formations of post-operative fibrosis

and adhesions. These findings are

a tremendous leap forward in post-

operative care because both fibrosis

and adhesions often lead to long-

lasting chronic pain despite surgery

and other interventional treatments.

One such study was published in in

2010 by Dr. Ploska regarding his

findings in a 44-year old female patient

with a history severe right leg pain.

She had undergone a lumbar surgery

at the L5-S1 level in 2007 without

placement of stem-cell allograft.

Due to continued symptoms, she

underwent a second procedure at

L4-5 levels in 2009. It was noted that

in 2010, “The intraoperative findings

at the right L4-L5 level where the

[stem cell] allograft had previously

been placed included essentially no

scar tissue and no adhesions to the

underlying dura resulting in plane

preservation between the dural sac

and the surrounding soft tissue. This

finding was in distinct contrast to the

scar tissue formation at the right L5-

S1 level where there was abundant

scar tissue formation,” where the

previous surgery had been done.

Currently, there is no adequate

treatment for low back pain from

lumbar disc disease. However, an

exciting recent study done at Emory

University by Dr. Beckworth was

published March 1, 2014. The study,

consisting of 100 patients, showed

that injection of stem cells into the

discs in the spine provided at least 12

months of relief for over 50 percent of

the patients in the study.

Additionally, in the January 2014

issue of the Journal of Bone and Joint

Surgery, Dr. Vangsness addressed the

role of stem cell injections into the

knee joint. He conducted a clinical

trial of 55 patients from patients 18

to 60 with severe meniscal injury to

their knees. The studied concluded

that, “A single stem cell injection

following meniscus knee surgery may

provide pain relief and aid in meniscus

regrowth.” Futhermore, “Patients

with osteoarthritis experienced a

reduction in pain in the stem cell

treatment groups,” while there was

no reduction in pain.

CONCLUSION

The findings and continued research

on stem cell therapy, its indications,

its applications, have reinvigorated

the medical community. Painful,

chronic, debilitating diseases that

have been long written off, been

excessively difficult to treat, now hold

new promise. Perhaps the future of

stem cell therapies lies in avoidance

of invasive and unnecessary surgical

procedures. Perhaps there is a curative

property for chronic and long-

standing pain. Whatever the future

may hold, this treatment allows us to

have hope for the future.

Sheba J. Shah, M.D. is a Board-

Certified Physiatrist and is Fellowship

Trained in Interventional Pain

Management. Along with her Medical

Doctorate, she holds Masters of

Science degree in Applied Cellular

Physiology. She currently practices in

Chandler, Arizona and is the founder

of Orange Medical Pain Management.

She centers her approach to patient

care and treatment of acute and

chronic pain conditions through a

multidisciplinary approach. In her

efforts to understand chronic pain

conditions and offer her patients

cutting edge medical treatments, she

looked further into the benefits of

stem cell therapy. She currently uses

stem cell therapy to treat painful

spinal and peripheral joint conditions

and her patients have demonstrated

tremendous success.

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