Representing Injured and Disabled Workers Columbus Workers' Compensation and Disability Retirement Attorneys

New Rule Will Burden & Delay Approval of Lumbar Fusion

Ohio Administrative Code 4123-6-32, effective January 1, 2018, will undoubtedly cause delay and confusion when an injured worker is in need of a lumbar fusion surgery. The rule appears to be intended to discourage injured workers from requesting and/or undergoing a lumbar fusion surgery. With few exceptions, an injured worker will be able to undergo a low back fusion only after two (2) months of “conservative” care have been rendered. Conservative care is defined as including physical reconditioning, avoidance of opioids and “avoidance of provider catastrophizing the explanation of lumbar MRI findings.” The injured worker’s “comprehensive conservative care plan” should include relative rest/ice/heat, anti-inflammatories, pain management, physical medicine rehabilitation program, chiropractic treatment, osteopathic treatment, physical medicine treatment, or interventional spine procedures such as injections. The sixty (60) day delay before surgery may be approved can be waived if there is progressive functional neurological deficit, spinal fracture, tumor, infection, emergency/trauma, or other catastrophic spinal pathology causally related to the allowed conditions in the claim. However, the fact of whether an “emergency” exists may be contested, thereby leading to a denial of surgery and the need for the injured worker to have to attend hearings before the Industrial Commission.

In addition, before surgery may be approved, the surgeon must have personally evaluated the injured worker on at least two (2) occasions. The injured worker must have undergone a “comprehensive evaluation” coordinated by both the injured worker’s physician of record and the operating surgeon in which all of the following must be documented: utilization of the visual analog scale, pain diagram and Oswestry low back disability questionnaire; a comprehensive orthopedic / neurological examination, including documentation of gait, spine (deformities, range of motion, palpation), hips and sacroiliac joints; motor, sensation, reflexes and upper motor neuron signs; diagnostic testing, including x-rays, lumbar MRI, lumbar CT scan; and EMG/NCV. There must be a discussion and consideration of opportunities for vocational rehabilitation, and a review of current and previous medications taken. There must be a pre-surgical health behavioral assessment, which means biopsychosocial factors must be considered which may affect treatment, as well as modifiable conditions that may change the need for surgery or improve surgical outcomes. If the injured worker smokes, has an unfavorable body mass index (BMI), diabetes, coronary artery disease, or peripheral vascular disease, those factors will militate against approval of the surgery. It is not entirely clear why vocational rehabilitation must be discussed BEFORE surgery may be approved; it is more logical that the injured worker should receive treatment, including the definitive treatment of surgery, before a discussion of vocational rehabilitation takes place.

This bureaucratic process also mandates that the injured worker, treating physician of record AND the surgeon sign a document called “What BWC Wants You to Know About Lumbar Fusion Surgery.”

This is a brief summary of the new requirements as set forth in Ohio Adm.Code 4123-6-32. For assistance with your back injury claim, particularly getting approval of a lumbar fusion surgery, please contact our office at 614-221-1300.