Businesses Getting Left at the Alter on Workers' Comp Savings

Tuesday, January 24, 2012 | 0

Utilization review, or UR, became a fixture for the Illinois workers’ compensation system when it was brought to our state by a prominent Illinois claimant lawyer as part of the 2005-6 amendments to the Illinois Workers' Compensation Act. Five years of limited effectiveness and disappointments led to the 2011 amendments, which appear to ostensibly give UR non-certifications a bit more bite or certainty. Please note the 2011 amendments were passed by our legislature almost a year ago — we would have hoped the secret-powers-that-be that run the Illinois Workers' Compensation Commission would have gotten the word on using this simple concept to routinely limit overtreatment so common in our system.
 
Based on our exhaustive search of the 2011 Illinois Workers' Compensation Commission decisions, it appears UR determinations were rejected by the Commission on an almost 2-1 ratio. We consider that madly disappointing.
 
We actually feel we read one of the most frustrating justifications for rejecting UR in a ruling “the utilization review doctor did not examine the petitioner and his findings are based solely on record and diagnostic reviews.”

Well, duh. That is precisely what UR is — they don’t examine the patient. On the same astral plane, we can see a misguided Illinois workers' compensation hearing officer reject an Independent Medical Evaluator opinion because the IME doctor isn’t treating the patient. The whole idea is reigning in overtreatment folks — if you aren’t going to do it, try to avoid lame justifications. By its very nature, UR is, in most cases, a type of record review. Nowhere in the Workers' Compensation Act is there a requirement a UR provider meet with or examine a patient. In fact, it can be argued the evidence-based medicine UR relies upon requires a contrast between the hard evidence contained in medical records and diagnostics as opposed to subjective complaints and pain descriptions. To use this as the reason why a UR finding should be disregarded does not address the substance of the determination, and instead attacks a phantasmal procedural issue that exists in 99.99% of all UR reviews.

UR is defined by the act as "the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards.” It is supposed to be based on evidence-based medicine and URAC compliant. It is supposed to have some weight. Again, if our hearing officers don’t like a UR determination, they can seek to change how the process is performed in a given medical chart. But to wholly disregard it completely with lame excuses and limp justifications demonstrates how biased and anti-business this system may remain.
 
By our count, during the year 2011 in 23 out of 32 reported UR disputes, the Illinois Workers' Compensationdisregarded or otherwise ruled diametrically contrary to UR non-certifications and allowed questionable care. Most observers on both sides thought the number for adherence to UR would be more like 90% to 95%. There were a few instances where internal inconsistencies or other obvious credibility issues such as failure to provide supporting medical records or submitting care under the incorrect diagnostic code were present on the face of the rejected UR reports. We hope in the future, a little additional attention to detail could avoid ending up with easily challenged UR reports.
 
Far more disconcerting are the multiple instances of cases where the Workers' Compensation Commission simply disregarded the vast majority of the UR determinations for an unknown or what we feel are illogical reasons. In doing exhaustive research, the most blatant disregard we witnessed was of course the many cases where a UR determination brought up in the Arbitrator’s decision was not mentioned by the IWCC in its reversal and certification of disputed care. We feel this is simply not reasonable going forward.
 
Under the new changes to the Illinois Workers' Compensation Act in 2011, for all treatment reviewed after Sept. 1, 2011 UR determinations MUST be referenced in a written decision. We hope the Commission feels their reversal of a well-reasoned decision should be subject to the same requirements to at least make reference to their reasoning in disregarding a UR determination as the Arbitrator who may have based his or her decision in part on that same UR. To simply rule opposite to what a UR determination was without referencing any reasoning at the very least is a disservice to the parties by not providing an understanding of the ruling and the bases for appeal. Again, we can’t see any justification for it and all of it is infuriating to the claims and risk management industry.
 
This is all in contrast to the nine times out of 32 total reported rulings in which the Commission upheld an arbitrator’s findings UR non-certifications were reasonable. What can Illinois business learn from the one-third of claims where UR non-certifications were upheld? In our view, not very much. As in years past, the best use of UR appears to be in non-certification of chiropractic overtreatment and physical therapy abuses. Four of the nine UR determinations upheld at the Commission were for excessive chiropractic sessions or therapy. Of the remaining five cases, four were for significant surgical procedures, but of those, in all four cases the opinions of the IME doctor are actually what carried the day in terms of a denial.
 
Ultimately this tells us for cases where there are strong medical disputes, having the UR can be a benefit when it matches up with and supports the position of the IME doctor. Oh – and be sure to get a UR analysis of all excessive physical therapy and chiropractic work. In our view, it’s the only sure thing the IWCC has routinely agreed with and upheld UR certifications over the last five years.
 
We would like to see the Commission begin giving valid and reasonable UR determinations the attention the newly amended Workers' Compensation Act states they deserve. At the same time, respondents have to move their efforts toward effective UR providers who can be sure to provide accurate and reasonable reports, using the correct diagnostic codes and referencing sufficient records to make an accurate determination. Between these two features, we hope the future of UR will lead to more deference given to these determinations made on evidence-based medicine.
 
While we are on the topic, we hope the Illinois workers' compensation system is going to bring preferred provider programs, lower permanent partial disability awards, drug and alcohol denials and workers compensation fraud by workers to Illinois business to start the process of bringing Illinois workers' compensation costs back to the mainstream of the United States. We will continue to bring our research to our readers to see if the promises made about coming to the altar of workers' compensation savings may ever come true.

Arik D. Hetue is an attorney for Keefe, Campbell & Associates, a workers' compensation defense firm in Chicao. This column was reprinted with the permission from the firm's client newsletter.