Utilization-Review Issues Arrive at Illinois WCC

Thursday, April 10, 2008 | 0

By Michael Rusin

Utilization review was a key component to the medical fee schedule legislation. Even though the statute went into effect Feb. 1, 2006, it has taken some time for employers to begin using utilization review and it has taken even longer for the Workers' Compensation Commission to begin reviewing utilization review cases.

We are just now seeing several Commission decisions involving utilization review disputes.

Not surprisingly, the reviews are mixed. Not surprisingly, Employer Commissioners have proven willing to rely on utilization review reports while Employee Commissioners have tended to reject them.

In the case of <i>Romero v. Wright Business Forms</i>, 07 IWCC 1517, the case was tried before Arbitrator Lee in Chicago. He issued a decision March 30, 2007 denying prospective medical based on utilization review reports issued by CorVel. Petitioner was seeking a lumber fusion – the request was submitted to UR and rejected. An appeal was filed and it was rejected again.

The defense was also supported by an IME doctor who stated the fusion was not necessary. Petitioner appealed and the Commission affirmed in a 2-1 decision with Employee Commissioner Molly Mason dissenting.

In <i>Vaupel v. Ingersoll Machine Tools</i>, 08 IWCC 130, the case was tried before Arbitrator Akemann in Rockford. Petitioner sought approval for a prospective arthroscopic surgery on his wrist. Arbitrator Akemann issued a decision Oct. 26, 2006 denying prospective medical care based on utilization review report issued by Concentra. Arbitrator Akemann noted that UR had denied the surgery and neither petitioner nor his doctors appealed the denial. Petitioner appealed that decision to the Commission and the Commission in a 2-1 decision reversed. The majority opinion rejected the utilization review report and instead relied on the treating physician.

Employer Commissioner Lamborn dissented on the issue of prospective medical care.

In yet another decision, <i>Cafarelli v. Metro Pier</i>, 08 IWCC 25, the Commission affirmed an award for prospective medical care, relying on the treating physician vs. a Genex UR report and an IME from Dr. Verma.

The issue going forward is what can be learn from these decisions and how can we continue to improve our chances of success in defending cases involving unreasonable and unnecessary medical care. First, it is important to remember that doctors (even highly trained specialists) like lawyers rarely have answers, but instead they have opinions. More treatment and more surgery is frequently not the answer to a claimant’s medical condition. Consequently, challenging any doctor’s recommendation for treatment is not an unreasonable thing to do – especially if a major surgery is planned.

Moreover, an employer’s ability to effectively defend a position is based on the amount of the evidence adduced and the quality of the evidence. Utilization review reports are yet another weapon that employers should and must utilize in effectively defending claims. It is clear that the Commission will weigh such evidence. The reports are generally drafted more convincingly than IME reports. The UR doctors couch their opinions based on nationally recognized standards rather than simply personal opinions. The arbitrators have no reluctance in relying on utilization review reports to justify a denial of medical bills. The reports themselves should be comprehensive and should carefully detail the standards upon which the decision is based.

Commissioners and arbitrators are learning for the first time what utilization review reports look like and the criteria used by utilization review preparers in making decisions and recommendations. More and more the Commission will be looking for utilization review reports in future cases. In big cases especially, a utilization review report should be obtained since a denial based on utilization review creates a rebuttable presumption against a potential award for penalties.

<i>Michael Rusin is a partner in Rusin, Maciorowski, Friedman Attorneys at Law in Chicago. This column was reprinted from the law firm's newsletter with his permission.</i>