Keeping Score of Rulings where UR is Used

Tuesday, November 16, 2010 | 0

By Matthew Ignoffo
Keefe Campbell & Associates

We recently noted a number of our readers sent us an article from the blog of a competing Illinois defense firm where utilization review was followed by the Arbitrator and affirmed by the Commission. In this ruling, the Commission cut overtreatment by a physical therapy provider. Many of our readers appeared stunned or amazed to see this happening. We hope some of you have been following as we have chronicled UR results in decisions issued by the Commission starting in 2006.

We also want everyone in the industry to note UR is a complete lock in Illinois workers’ compensation claims that aren’t litigated. As there are so many non-litigated WC claims, we always wonder why adjusters at insurance carriers and TPA’s don’t use the concept more.

When claims are litigated, a brief analysis of 60 workers’ compensation decisions where UR was involved revealed an increasing number of cases where UR denial of chiropractic or physical therapy treatment was routinely upheld by Arbitrators and the Commission. In contrast, when surgery was recommended and UR denied the reasonableness and necessity of the surgery, very few cases have been found where the end result was denial of the surgical treatment. Instead, the treating physician’s opinion was given more weight and credibility even though according to the Act, “A utilization review will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment.” 820 ILCS 305/8.7(i). When surgery is recommended by a treater, the Commission considers UR, they just don’t follow it. As Seinfeld fans will tell you, it isn’t taking the reservations that count; it is keeping them which really matters.

In Early v. United Airlines, the Commission affirmed the Arbitrator’s award of prospective surgery where UR had denied the procedure. 07 IL.W.C. 3021, No. 09 I.W.C.C. 0839, Aug. 10, 2009. Respondent had offered reports from two utilization-review physicians, both of whom denied certification for the prospective surgery. The Commission decision had the following language, which became familiar while researching this article:

"The Commission, like the Arbitrator, assigns greater weight to the opinions of Petitioner's treating hand surgeon, Dr. Schiffman, than to those of Respondent's Section 12 examiner and utilization review physicians. Dr. Schiffman has treated Petitioner over an extended period and has consistently taken a conservative approach in addressing Petitioner's 'very appropriate' questions concerning her options."

In James Vaupel v. Ingersoll Machine Tools, the Commission reversed the Arbitrator’s decision which agreed with a UR report indicating Petitioner was not a surgical candidate. 06 WC 25877, 08 I.W.C.C 0130, February 1, 2008. The Commission went as far as noting;

"Pursuant to the Utilization Review Program authorized by the Act, 820 ILCS 305/8.7(a), the appropriateness of the proposed medical care recommended by Dr. Korcek (Petitioner’s treating physician) was evaluated by Dr. Garcia, who opined Petitioner was not a candidate for the surgical procedure. Pursuant to an appeal of Dr. Garcia's findings, the proposed medical care was reviewed by a second medical provider, Dr. Rosenzweig. Dr. Rosenzweig concurred in the findings of Dr. Garcia."

Even though two UR doctors indicated Petitioner was not a candidate for surgery, the Commission ignored UR and went with the treating physician’s recommendations because he was found to be “more persuasive.” Commissioner Lamborn dissented stating, he would have affirmed the Arbitrator’s decision because the utilization review, as outlined in Section 8.7 of the Act, indicated the surgery proposed was not reasonable or necessary.

As we have advised in the past, please note a claimant who wants to litigate the dispute over surgery sought by a treater and denial by UR must put up with a one to three year waiting period for the Arbitrator’s decision and the Commission’s ruling. Some people don’t want to fiddle around that long and will move on with their lives.

While we are pleased UR has had some success in cutting excessive chiropractic and physical therapy treatment it is interesting why, when the treatment involves surgical intervention, a denial pursuant to UR has had limited success in ultimately denying the treatment sought by claimant. We will continue to monitor this issue and keep our readers advised if any changes occur.

Matt Ignoffo is an associate attorney for the Chicago workers' compensation defense firm of Keefe, Campbell & Associates. This column was reprinted with the firm's permission from its client newsletter.