The Ohio BWC’s New Rule on Low Back Fusion Surgery

August 25, 2017Legal Alerts

Few medical issues are as significant to an employee and an employer as major back surgery. The procedure incapacitates the injured worker for months and leaves the employer short staffed while the employee recovers. Additionally, these surgeries often do not result in the expected outcome, which leads to further impairment and expense.

The Ohio BWC recently implemented a rule[1] dealing with lumbar fusion surgeries and requirements that must be met prior to an injured worker seeking authorization for such a procedure. rule, which takes effect January 1, 2018, is codified in Ohio Administrative Code Section 4123-6-32 (link to article in footnotes).

This rule was created, at least in part, in response to the current opiate crisis that exists in many states, including Ohio. According to the Ohio BWC, only 32 percent of injured workers who have undergone a spinal fusion surgery are “no longer disabled” after two years.[2] Additionally, lumbar fusion surgeries often result in long-term opiate use, increase in disability and poor return to work status. Thus, a requisite period of conservative care prior to undergoing such a serious operation is likely prudent.

The new rule, which deals only with lumbar fusion surgeries (a procedure which joins or fuses two or more vertebra in the low back) sets forth best practices which must be met by medical providers if reimbursement for the procedure will be sought through the BWC. The text of the rule also indicates that a medical provider’s failure to comply with the requirements of the rule may subject the provider to peer review by the BWC’s Heath Care Quality Assurance Advisory Committee.

While the rule itself has multiple detailed sections that must be followed, the general requirements are that the injured worker must participate in at least 60 days of conservative care for low back pain prior to seeking authorization for a fusion surgery. This treatment should focus on physical reconditioning and avoidance of opiate medications when possible. The treatment may include rest, ice/heat, anti-inflammatory, physical therapy/chiropractic care and pain management.

The rule also outlines steps that must be followed if the claimant has or has not undergone a lumbar fusion surgery previously. The requirements set forth by the rule may be waived in certain situations such as a fractured vertebra, progressive neurological deficits, tumor or infection.

After a fusion surgery has been performed, the rule requires the injured worker meet regularly with his or her surgeon and physician of record to monitor recovery, pain level, work willingness/ability and functional status. If pain continues from six months to a year post-operatively repeat diagnostic studies, repeat health behavioral assessments and pain/functional status examinations may be appropriate.

It should be noted that this rule deals only with lumbar fusion surgeries. Other back surgeries, such as the more common “diskectomy,” can still be performed without regard to this rule. Further, it is likely this rule will not result in much of an impact in the state as in reality; it often takes in excess of 60 days before appropriate diagnostics (MRI/EMG, etc.) can be obtained, some form of physical therapy is attempted and surgical consultations are scheduled and actually take place. Finally, fusion surgeries have already decreased drastically in the past several years among Ohio claimants, falling from 1,375 in 2002 to only 563 in 2015.[3]