How to Negotiate a Fair Workers Comp Settlement if You Need or Have Undergone a Spinal Fusion (Cervical, Thoracic, or Lumbar)
Spinal Fusion is a Major Surgery. Learn How to Calculate a Spinal Fusion Settlement Amount that Provides Financial Security for You and Your Family.
If you are an injured worker reading this article, then one of three things is probably right:
1. Your orthopedic surgeon or neurosurgeon has recommended that you undergo a spinal fusion surgery for your back or neck problems. But, you are hesitant to have the surgery and want to negotiate a workers compensation settlement.
2. You underwent a laminectomy or discectomy for your work injury. But it did not resolve your back or neck pain. Now your treating physician has recommended you undergo a spinal fusion.
3. You already had spinal fusion surgery and now want to settle your workers comp claim.
Whatever the reason, I can help.
Injuries to the neck and back are some of the most common injuries suffered on the job. But this does not make them any less severe.
Even if your initial diagnosis is a muscle strain, there is a risk you will be diagnosed with a herniated disc. There is also a risk that your on-the-job injury will result in post-traumatic arthritis, or aggravate, accelerate, worsen, or flare any degenerative disc disease or osteoarthritis you have. One study found that more than 60 percent of workers comp claims that involved spinal fusion surgery was first reported as cervical or lumbar strain or sprain.
The purpose of this article is to discuss:
- When spinal fusion is necessary for a work-related injury to the back or neck;
- What evidence you need to win your claim for authorization and payment of a spinal fusion if the insurance carrier denies coverage;
- What workers comp benefits you can receive if you need to have or have already undergone spinal fusion surgery; and,
- How to negotiate a top-dollar workers compensation settlement for spinal fusion if you are undecided about moving forward with the procedure or have already had it.
Keep reading to learn more.
And if you have any questions about how workers comp works, or are looking to hire a work injury attorney who has obtained results for more than 1,000 injured employees across the state, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I am ready to help.
What is Spinal Fusion Surgery?
A spinal fusion is a surgical procedure where your surgeon unites two or more spinal vertebrae so that motion no longer occurs between them and they heal into a single bone. Put simply, a spinal fusion, also called arthrodesis, is a “welding” process.
There are many different spinal fusion techniques. But they all have the same goal: To immobilize and stabilize your spine by decompressing the spine and using bone graft to help your vertebrae join together when healed, with the hope that you get pain relief and can avoid further neurologic deficit. Spinal fusion surgery can help prevent further worsening of your ability to function but is less likely to improve it.
A spinal fusion can be performed at any level of the spine – cervical, thoracic, and lumbar. Lumbar and cervical fusions, however, are more common than thoracic fusions. That is because your lumbar and cervical spine are more mobile (have a greater range of motion) than your thoracic spine and, therefore, at greater risk of suffering sudden trauma or degeneration from repetitive stress and movement.
When is Spinal Fusion Surgery Justified?
A cervical or lumbar fusion is a surgical procedure with substantial risk. It requires the surgeon to navigate an area with countless nerves and muscles. One mistake can result in spinal cord injury such as paralysis. And even if the surgery goes well, there is no guarantee that your neck or back pain, or the radiating pain to your arms or legs, will go away forever.
These risks are why spinal fusion is often the last resort for workers who have suffered a neck or back injury. If conservative treatment (epidural steroid injections, chiropractic care, physical therapy, etc.) is helpful, many doctors will advise against fusion.
There are, however, times when a spine fusion surgery is recommended and may be your best option. Your surgeon may recommend fusion if your spinal range of motion is disrupted, either from trauma at work, a car accident, a slip and fall, a fall from a height such as a roof or ladder resulting in a fractured vertebrae (both burst fractures and vertebral compression fractures), a herniated disc that causes cauda equina compression syndrome, or worsening degenerative changes (spinal stenosis, spondylosis, lordosis, spondylolisthesis, scoliosis, etc.), or secondary to a failed back surgery, and causing significant pain and instability in the spine.
What are Signs that Indicate I May Benefit from Cervical Spine Fusion Surgery?
Your doctor may recommend cervical fusion if you both a positive myleogram, CT, or MRI (meaning it shows a herniated nucleus pulposus or spinal cord impingement caused by central disc displacement or something else) and one or more of the following neurologic signs:
- Loss of bowel and bladder function
- Sexual dysfunction
- Weakness and reduced use of one or both arms
- Paralysis in one or both arms
- Chronic pain radiating down your arm
- Intermittent, but severe, episodes of arm pain that interfere with your ability to work or perform activities of daily living
Neck pain alone, without other neurologic signs, is usually not a sufficient basis to undergo a cervical spine fusion.
What are Signs that Indicate I May Benefit from Lumbar Spinal Fusion?
Your surgeon may recommend lumbar spinal fusion surgery if you have positive findings on objective testing and one or more of the following:
- Impaired ability to control your voluntary muscles
- Loss of control of involuntary functions such as bowel and bladder control or sexual function
- Radiating pain down one or both legs
- Numbness down one or both legs
- Progressive weakness in the legs
How Common is Spinal Fusion Surgery?
Last year surgeons performed more than one million spine surgeries, with more than 300,000 of those being spine fusions.
Lumbar fusions are the most common type of fusion performed each year, followed closely by cervical fusions. Far fewer thoracic fusions are performed, though the number is still more than 20,000 per year.
From what I have seen, the number of complex fusion procedures performed has increased over the past five years.
What are the Different Spinal Fusion Techniques Used to Treat Injured Workers and Accident Victims?
The spinal fusion technique and procedure your surgeon chooses depends on the level of the spine being operated on and the location of the nerve root impingement.
Fusions are done either on the anterior (our surgeon will approach your spine from the lower abdomen for a lumbar fusion or front of the neck for a cervical fusion), posterior (your surgeon will approach from the back), or both sides of the spine (lateral approach).
Over the past twenty years there has been an increase in the use of spinal instrumentation systems that use hardware such as pedicle screws, plates, rods, wires, hooks, and cages of different materials. That is because these techniques have higher union rates than non-instrumented fusions, which means your bones are more likely to fuse together when healed.
The most common fusion procedures for the cervical spine are:
- Anterior Cervical Discectomy and Fusion (ACDF)
- Posterior Cervical Decompression and Fusion
- Anterior Cervical Corpectomy (part of the vertebral body is removed) and Fusion
The most common fusion procedures for the lumbar spine are:
- Anterior Lumbar Interbody Fusion (ALIF)
- Posterior Lumbar Interbody Fusion (PLIF)
- Transforaminal Lumbar Interbody Fusion (TLIF)
- Transpsoas Interbody Fusion
- Oblique Lateral Lumbar Interbody Fusion
- Posterolateral Fusion
The most common fusion procedures for the thoracic spine are:
- Anterior Decompression and Fusion
- Posterior Instrumentation and Fusion
Make sure you discuss the specifics of each of these spinal fusion procedures once you know what type is recommended.
Does Workers Compensation Pay for Cervical, Thoracic, or Lumbar Spinal Fusion Surgery?
Yes. As long as you receive a Workers Compensation Award Letter providing medical benefits for your work injury and you can prove that the proposed spine fusion procedure is reasonable, necessary, and related to that injury.
Do not, however, expect the insurance carrier to agree to pay for this surgery without a fight. Because spinal fusion surgery is so expensive and so risky, most insurance carriers will deny your claim for authorization and payment of the fusion and try to find some defense to your workers comp claim, even if they have paid for everything else without hesitation. For example, do not be surprised if the insurance claim adjuster suddenly disagrees with the doctor you chose from the workers comp panel and have been treating with for years, and sends you to an IME doctor to try to find a way not to have to pay for the fusion. The insurer will try to convince you that it may win at a workers comp hearing so that you accept a lower settlement amount for your spine fusion case.
Common defenses to claims for spinal fusion surgery include:
- The need for the fusion is related to degenerative disc changes that would have happened anyway, regardless of the work-related injury.
- If you smoke, the insurer may argue that it should not have to pay for the spinal fusion until you quit smoking or cut down on the number of cigarettes you have each day because smokers are found to have a lower surgical success rate.
- Another accident, such as a fall in the shower or an auto crash, is the reason you need a spinal fusion, not the work injury.
- You should undergo a discectomy first (unless you need the fusion because your first discectomy failed). Insurers take this approach because a discectomy is a much less expensive surgery.
- You are too young to have a fusion. Studies show that spinal fusion surgery can help people over age 50. In my opinion insurers raise this argument because the younger you are when you have the spinal fusion, the greater the likelihood that you will need a revision fusion or an extension of the fusion to other levels as you age.
- The delay in getting the surgery decreases the likelihood of a successful outcome. This is a more difficult argument for the insurer to make if it is the reason for the delay.
It is possible to overcome each of these defenses by preparing your case from the beginning as though the necessity and reasonableness of the spinal fusion surgery will be disputed by the insurance company.
What is the Average Workers Compensation Settlement Amount for Spinal Fusion Cases?
In my experience the average workers comp settlement amount for spinal fusion cases is $150,000.00 to $225,000.00, or higher. I have settled multiple cervical and lumbar fusion cases for more than $250,000.00, including several for more than $325,000.00 and one for more than one million dollars. The general rule is that a multilevel lumbar fusion, one-level neck fusion, and one-level thoracic fusion are worth more than a single-level lumbar fusion settlement. This is because the more levels fused, the greater the possibility of complications and permanent impairment.
What Factors Affect the Workers Comp Settlement Amount in Cervical and Lumbar Fusion Cases?
I examine the following factors when calculating the settlement value of a spinal fusion claim under workers comp:
- Whether the insurance company has accepted responsibility for the accident and surgery. If it has, the claim has more value. If it has not and a hearing on the merits is necessary, then I must analyze the likelihood of success at trial, particularly if the insurer can present conflicting evidence on causation. A fusion case has a lower value if it is unlikely that the Workers Compensation Commission will find it is covered under the law.
- How much money you made when you were hurt. Your pre-injury average weekly wage is the basis for many types of workers comp benefits, including Temporary Total Disability, Temporary Partial Disability, Permanent Partial Disability, and Permanent and Total Incapacity.
- Whether you have undergone the spinal fusion surgery. Spine fusion surgery is expensive. The amount billed for the spinal fusion surgery is often from $65,000 to $125,000. If you have not yet had surgery or, if you had the fusion but used private health insurance to pay for it, make sure you include the potential cost of the cervical or lumbar fusion in your settlement demand. You should also include the cost of additional treatment you will need even if the surgery goes well, such as physical therapy, follow up doctor appointments, prescription medication, home modifications, home health care, and assistive devices.
- The amount of time you will miss from work after the fusion. You must limit your activities until the fusion heals. This means no twisting, lifting, bending, or squatting. Make sure to include the projected length of time you will remain out of work post-fusion.
- The potential for complications from surgery. Complications of fusion surgery include: paralysis; vascular injuries to different arteries; and visceral injuries, particularly to the esophagus and trachea, and nerve root injuries. Make sure to include an amount of money for this possibility.
- The likelihood of a poor outcome. It is possible that fusion surgery may not help and that you will continue to experience pain. This is particularly true if there is a delay between your injury and when you have the fusion. Your settlement demand should consider this possibility, as well as the possibility that you will need continuing pain management.
- Your permanent restrictions after spinal fusion. Even if the fusion works and your bones heal together, you may still have permanent restrictions. Few, if any, of my spinal fusion clients are released to full duty by their doctor. If your permanent restrictions prevent you from returning to your pre-injury job, which is a real possibility if your job requires you to perform at the medium or heavy physical exertional levels, you may be eligible for ongoing wage loss benefits.
- The likelihood that you will need to undergo fusion at another level. Having fusion surgery at one level may lead to arthritis at nearby levels, increasing the risk that you will need surgery at those levels. This may be covered as a compensable consequence under workers comp and you should include it when calculating a fair spinal fusion settlement amount.
- Whether you are experiencing depression or anxiety because of the work injury or PTSD because of the underlying workplace accident. Many injured workers dealing with chronic neck and back pain and extensive spinal surgery often experience depression and anxiety. You may be entitled to lifetime medical benefits for your mental health condition if it is related to your workplace injury or treatment.
- Whether you are required to resign voluntarily as part of your workers comp settlement. If you are working light duty, or know that your employer has light duty available that you can perform, then you should ask for additional monies if the employer, insurer, or TPA want you to resign.
- Whether you are keeping medical open or closing all benefits in the settlement. If your settlement includes a cash buyout of medical benefits, you deserve more for your fusion claim.
- Whether you are receiving Social Security Disability (you can receive both) or other income such as VA Disability Benefits, Long Term Disability benefits, or VRS Work Related Disability benefits. If so, a spinal fusion settlement can help you increase the amount of money you are receiving from all sources if there is a current offset. But you must first address Medicare’s interests in your workers comp settlement through a Workers Compensation Medicare Set Aside Arrangement (WCMSA).
These factors are a good starting point for calculating a fair settlement amount for a work-related spinal fusion. There are more.
Does Spinal Fusion Surgery Provide a Better Outcome for Workers Comp Patients?
Many of my clients, including truck drivers, nurses, warehouse workers for large companies such as Amazon, Target, and Walmart, construction workers, delivery drivers for companies such as UPS and FedEx, flight attendants for airlines such as United Airlines and American Airlines, mechanics, utility linemen, and police officers, have improved after a lumbar or cervical fusion. But some have not. And there is at least one study that found spinal fusion surgery leads to worse long-term outcomes compared to nonsurgical treatment.
Dr. Trang Nguyen of University of Cincinnati College of Medicine led a study that suggested spinal fusion surgery may not be an effective operation for workers comp patients with degenerative disc disease, herniated discs, or nerve root disease. Spine published the results of the study in its February 15, 2011 issue.
The study used Ohio workers compensation data to identify and compare the results of patients who underwent spinal fusion for low back pain with those who underwent nonsurgical treatment for their back pain. It compared final treatment outcomes including return to work, disability, and the use of opioid drugs for pain management.
The study found that 11 percent of the lumbar fusion patients had permanent disability, compared to 2 percent of patients who treated without surgery. The spinal fusion patients were more likely to continue using pain medication. And there was a risk of some type of complication post-surgery and the need for repeat surgery. Complications include deep vein thrombosis (DVT), pulmonary embolism, nerve injuries, infection, and difficulty with bone grafts or instruments used in the procedure. And repeat surgeries occurred due to the fusion not “taking.”
This study is not the only source bringing attention to the risks associated with spinal surgery. The Minnesota Department of Labor and Industry has published a fact sheet detailing the concerns associated with lumbar fusion surgery. The sheet states that up to 1/3 of workers compensation lumbar fusion patients report a “poor” result.
Can I Still Receive Workers Compensation Benefits or a Settlement if I Refuse to Have a Spinal Fusion?
Yes. In most cases.
You may decide that spinal fusion surgery is too risky for you, no matter the amount of pain you have. Many of my clients reach that decision after talking with their treating physician, seeing another orthopedic surgeon for a second opinion, and discussing the surgery with me and their family. It’s not surprising. Spinal fusion is a high risk surgery that comes with serious complications, including death.
Under the Workers Compensation Act and the Rules of the Workers Compensation Commission, your employer and its insurance company can stop your workers comp benefits if you unreasonably refuse medical treatment. But this action is rarely, if ever, taken by employers and insurers when an injured worker refuses to have spinal fusion surgery. That is because (1) fusion surgery is expensive and insurers would rather not have to pay for it and (2) fusion surgery comes with substantial risk and there may be a significant chance that it won’t help your pain or mobility.
You have an even stronger argument for refusing to undergo spinal fusion that involves more than one level. The success rate for fusion surgery decreases as more levels are fused together.
You also have justification for refusing spinal fusion surgery if you underwent a discectomy for the injury before, with no improvement or recurrent pain and loss of function.
If a fusion has been recommended and you are undecided about moving forward or firmly against having the surgery, that is fine. But do not tell the insurance company of the third party administrator (TPA) managing your claim. If the insurer or TPA (Sedgwick, Gallagher Bassett, ESIS, Landon Companies, etc) know that you will not have the surgery, then they will likely offer you a lower settlement amount for your spinal fusion claim.
What Medical Treatment is Available if I Decide Not to Get a Cervical or Lumbar Fusion, or if I Continue to Have Pain after the Spine Fusion?
If you decide not to undergo a recommended fusion surgery or settle your claim, you may still receive additional medical treatment.
You may also request vocational rehabilitation services to try to help you find a new job if you are unable to return to your pre-injury job because of the fusion. But talk with an attorney first. Vocational rehabilitation often causes problems and disputes that lead to litigation.
Helping Injured Workers Get Top-Dollar Settlements for Their Spinal Fusion Claims
If you or a loved one has suffered a spinal injury at work or caused by another driver’s negligence, and now needs cervical, lumbar, or thoracic fusion surgery, call me for a free consultation: (804) 251-1620 or (757) 810-5614.
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