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Ohio’s rule imposing a 60-day waiting period for lumbar fusion surgeries in workers compensation claims involving lower back injuries is unlikely to spur any legal challenges against the Ohio Bureau of Workers’ Compensation or employers, legal experts say.
Ohio is a limited sovereign immunity state, which provides for tort liability in the event of negligent actions, but experts say it would be difficult for injured workers to demonstrate that passage of a rule is negligent or actionable.
“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,” Sara Jodka, Columbus, Ohio-based of counsel for law firm Dickinson Wright P.L.L.C., said in an email.
She noted the delay could lengthen recovery time and keep employees out of work and in the state comp 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,” Ms. Jodka said.
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. Although the state recognizes an employer intentional tort, it would be difficult for an injured employee to demonstrate intent on an employer’s part under the rule.
As back injuries continue to be a top concern in workers compensation, states such as Ohio look to implement best practices that address long-term outcomes for injured workers.