The Ohio Bureau of Workers Compensation’s new rule aimed at discouraging lumbar fusion surgery and use of opioids for workers with back injuries is consistent with best medical practices and unlikely to face legal challenge, according to some experts.

The new rule requires that workers undergo at least 60 days of comprehensive conservative care, including physical therapy, chiropractic care, rest, anti-inflammatories, ice and other nonsurgical remedies, before surgical options are considered. Conditions that require immediate intervention, such as spinal fractures, tumors, infections and functional neurological deficits, are exceptions to the rule, the bureau said in a recent statement.

This is standard practice, according to Dr. Richard Deyo, Portland, Oregon-based Kaiser Permanente professor of evidence-based family medicine and professor of medicine at Oregon Health and Science University. Most clinicians would recommend a course of nonsurgical therapy for most patients with back pain prior to considering surgery, he said.

“The most common situation in work-related back pain is simply that patients have pain and often little in the way of actual neurological injury, usually not fractures of the spine, but simply back pain, and in that situation, it makes a lot of sense to try aggressive nonsurgical therapy first,” Dr. Deyo said. “This is true for patients who have back pain alone and even for patients who have a herniated disk in most cases. It's worth waiting that length of time because patients will improve over that length in time without surgery.”  

Many patients who undergo surgery still end up taking long-term opioid treatment after surgery, he said. Along with the bureau’s recommendation, spinal manipulation therapy, acupuncture and cognitive behavior theory are other forms of possible nonsurgical treatment.

BWC Chief Medical Officer Dr. Stephen T. Woods, researchers at Case Western University School of Medicine in Cleveland, Ohio, and others found that “fusion patients suffered considerably worse outcomes than non-fusion patients. Those outcomes included chronic opioid dependence, increased disability and high rates of failed back syndrome, as well as additional surgery and new psychiatric co-morbidities,” according to the statement.

The challenge when it comes to injured workers is returning them to work.

“Everybody is eager to get the patient back to work as quickly as possible and the idea of waiting to see if someone gets better is hard for everybody to accept. On the other hand, I think in terms of what's best for the individuals’ health that 'wait-and-see' approach ... is probably the most beneficial course for most patients,” said Dr. Deyo.

The rule is unlikely to spur claims against the bureau or employers in cases where surgical options are delayed under the rule, according to legal experts. Ohio is a limited sovereign immunity state, which provides for tort liability in the event of negligent actions, but it would be difficult to demonstrate that passage of a rule is negligent or actionable, Sara Jodka, Columbus, Ohio-based of counsel for law firm Dickinson Wright P.L.L.C., said in an email Tuesday.

Any liability claims would be considered through the state’s Court of Claims where damage caps and restrictions are in place, said Brian Perry, Cincinnati-based partner in law firm Dinsmore & Shohl L.L.P.’s litigation department, where he is a member of the firm’s workers comp group, in an email Monday.

“In terms of liability, the key focus is whether during the 60-day comprehensive therapy period, the employee was injured or the lower back injury exacerbated as a result of the delay in fusion surgery,” Ms. Jodka said, noting the delay could lengthen recovery time and keep employees out of work and in the BWC system longer than if they had surgery in the first place. “At the end of the day though, the state and employer are already paying the medical bills and salary continuation as a result of the initial lower back injury, so it is difficult to see what additional claim the employee could have.”

Because employers are typically not part of the medical process, a claim against an employer stemming from delay of surgery under the rule is also unlikely, said Ms. Jodka. Ohio recognizes an employer intentional tort, she said, but such cases have been severely limited by the Ohio Supreme Court and it would be difficult for an injured employee to demonstrate intent in this situation, she said.

Legal experts also said claims are unlikely due to the limited scope of the rule, which applies only to lower back injuries and lumbar fusion surgeries and provides exceptions for emergency situations. In addition, the rule is not a total bar to surgery, they said, but rather a waiting period to discourage a surgery that often is associated with chronic opioid abuse and slower return-to-work capabilities.

"The BWC feels that with fusion surgery, the success rate in significantly reducing pain is not that great,” said Anthony Castelli, a Cincinnati-based attorney at his own law firm, in an email Monday. “This means people are maintained on opioids for the pain longer and more frequently. Opioid use has been associated with significant long-term morbidity and mortality."

The rule also may have little impact on realistic wait times for surgery, according to experts. The diagnostic process for lumbar fusion surgery — often including objective tests, an MRI, an electromyogram and surgical consults — leading up to a recommendation for a fusion surgery often exceeds the 60-day waiting period, said Mr. Perry.

“Usually at least some conservative treatment — usually physical therapy — is tried along the way before more aggressive surgical options are explored,” he said.

“Absent some sort of proven bad faith, I think it is very iffy whether the BWC would ever face any liability based upon this policy,” said Mr. Perry. “According to the BWC, fusion procedures have already dropped in Ohio workers comp claimants from 1,375 in 2002 to only 563 in 2015. This is likely in part due to a recognition that many patients, particularly those who have been ‘rushed into’ such a significant surgery, have not had great long-term outcomes.

“This proposed rule strikes me as much as anything as trying to encourage a ‘best practices’ approach before such a surgery is carried out,” Mr. Perry said.