Workers’ Compensation Settlements for Spinal Fusion

Corey R. PollardWorkers’ compensation attorney · Former insurance defense · $100M+ recovered

Your doctor’s recommendation for a spinal fusion affects your workers’ comp case’s value more than any other back and neck surgery, and the impact happens before you even have it. Many of my cervical and lumbar fusion cases settle between $175,000 and $265,000, with some even higher. Those that settle at the higher end share two facts: the treating orthopedic surgeon or neurosurgeon related the need for the spinal fusion to a compensable work injury, and the anticipated permanent restrictions will prevent the worker from returning to their pre-injury job.

The insurer knows spinal fusion is a big deal. When it reviews the reserves set for your case, a surgeon’s note recommending a fusion almost always increases that amount. You can bet the insurer will consider offering a quick settlement or scheduling an IME to find a crumb of evidence it can use to deny authorization for the fusion.

The insurance company’s goal is simple: deny the fusion as unrelated, delay authorization until you give up the claim, or settle before you have it. Your job is to get the surgery paid for under your workers’ comp award order if you want to have it, or to settle for the right number if you don’t.

This page is part of my back injury hub. The injuries that usually lead here have their own pages: herniated discs, degenerative disc disease, and sciatica. The rule that makes an aggravated spine compensable or the accelerated need for spinal fusion is on my pre-existing conditions page. Here I cover only the cervical or lumbar fusion: getting it paid for, refusing it, what comes after it, and the math.

What a spinal fusion is

A fusion is a surgical procedure that joins two or more vertebrae with bone graft and hardware, so they heal into one bone and stop moving; it’s like welding two pieces of metal together. It’s done at any level, but in work injury cases it’s almost always the low back (lumbar) or the neck (cervical), and it’s the surgery of last resort after injections, therapy, and often a discectomy have failed.

Does Virginia workers’ comp pay for a spinal fusion?

Yes, you can have workers’ compensation cover your spinal fusion when three things are true. You have an award, or the insurer voluntarily accepts the claim. Your authorized treating physician, not a second-opinion doctor you sought on your own, recommends the fusion. And the evidence shows the fusion is reasonable, necessary, and related to the work accident, which is the standard for all medical treatment under Va. Code § 65.2-603. The Commission gives great weight to the treating physician’s opinion when the record of the record supports it. But the Commission is not bound by that opinion. Consider the IME report as the insurer’s effort to overcome this treating physician rule. .

The cost of a spinal fusion explains why so much litigation surrounds this procedure. Depending on whether the Virginia Workers’ Compensation Medical Fee Schedules or a contract between the insurer and the surgeon applies, the severity of the injury, and any complications, I’ve seen the cost of a spinal fusion range from approximately $67,000 to more than $314,000 -; the highest figure was for a multi-level cervical fusion for a construction worker with comorbidities. And that amount doesn’t include the treatment the insurer paid for before the fusion, or the therapy, medication, MRIs, office visits, or spinal cord stimulator you may need after the operation.

Cervical or lumbar, one level or three: why the location and number of levels matter

Not every fusion is the same. The level and the number of levels change the cost, the recovery, the restrictions, and the insurer’s reserve, and I evaluate them differently when calculating a settlement demand.

A one-level lumbar fusion, usually L4-L5 or L5-S1, is the most common fusion I see in my files. Recovery takes the months described below; permanent restrictions include limits on lifting and bending; and the biggest insurer risks related to future medical costs are adjacent-level risk and the need for chronic pain management.

A cervical fusion, most often an ACDF (anterior cervical discectomy and fusion) at C5-C6 or C6-C7, often costs insurers more. In my experience, it also prevents employees in a wide range of occupations from returning to full duty. That’s because common post-cervical fusion problems, such as headaches and numbness and tingling in the arms and hands, make it hard to work. It can easily end careers for electricians, mechanics, and truckers.

A multi-level fusion, cervical or lumbar, is even more expensive. The surgery costs more, the recovery is longer, the restrictions are tighter, and the odds of a second surgery go up with every level fused. The $314,000 figure above was a multi-level cervical case, and the insurer’s reserve on a multi-level fusion is set accordingly. If your surgeon is talking about more than one level, the settlement conversation is a different one, and the demand should say so.

How the insurer fights paying for the spinal fusion, and how you overcome each argument

In any given year, I resolve about 25 to 35 workers’ compensation cases involving cervical or lumbar fusion through settlement or an evidentiary hearing. Each of these cases requires dealing with one or more of the following defenses and arguments.

• It’s degeneration, not the accident. The IME doctor finds degenerative disc disease on the MRI and says you would have needed a fusion even if the accident never happened. Remember: You don’t have to prove that the accident is the only or even a major cause of the need for fusion. Virginia holds employers and insurers responsible for spinal fusion when a compensable injury aggravates or accelerates the underlying condition.
• Something else happened. Maybe you fell at home, were in a car crash while visiting a family member, or returned to a job that requires continuous lifting. To avoid paying for a spinal fusion, the insurer may try to blame one of these things for the need for surgery. Your treating physician’s records can beat this defense.
• You should try a different, less expensive surgery first. Several years ago, I tried a case where the insurance company denied authorization for a lumbar fusion. It agreed that my client needed surgery, but argued that a discectomy was the right option, not the fusion. The defense attorney also obtained an IME report saying so. During the hearing, the deputy commissioner told the other side that, even if he denied the fusion and approved the discectomy, the insurer might end up paying for both surgeries if the discectomy failed. That possibility is one I remind insurers of when negotiating a spinal fusion settlement.
• You smoke. Nicotine can increase the risk of fusion failure because it slows bone healing. If you smoke or use nicotine products, the insurer may try a few things to avoid paying for spinal fusion. It may ask your treating surgeon to write that you cannot get the surgery until you stop smoking. Or it may argue that continuing to smoke after your surgeon has told you to stop before surgery amounts to an unjustified refusal of medical treatment. I have not seen that argument win, but I have seen it made, and the best response may be asking your surgeon to document a cessation program.
• You’re too young, or it’s been too long. Fusing a 32-year-old means decades of adjacent-level risk the insurer will own, so the surgery seems premature. At least that is what the insurance company might argue. For example, I’ve settled a cervical spinal fusion case where my client’s injury occurred more than 30 years prior, but he needed a revision fusion that extended to adjacent levels.

Can I refuse the spinal fusion and keep my benefits?

From what I’ve seen, yes.

Virginia Code § 65.2-603(B) states that an employee cannot receive further compensation if they unjustifiably refuse medical care. However, refusing a major spine surgery with the risk of serious complications and that may not relieve all your symptoms is rarely considered an unjustified refusal, at least not in the cases I’ve seen.

Another possible reason that I have never seen an insurer file an employer’s application to stop benefits based on refusal of spinal fusion is the cost of surgery. Given the expense of the fusion and post-operative care, insurers aren’t in a rush to force an injured worker into a six-figure surgery they must pay for.

One instruction. Do not tell the adjuster that you would never get a spinal fusion. You don’t need to volunteer that information, and doing so can lower your settlement amount for a spinal fusion. An insurer will not include money for a fusion it knows you’ll never get and would never have to pay for. Again, you don’t have to get the fusion, but you also don’t have to tell the insurer your underlying thoughts about it.

What changes after the fusion: permanent restrictions, wage loss, and the rating Virginia doesn’t pay

Expect to be out of work for months, not weeks. The healing process differs for everyone. But in my experience, a fusion usually results in three to six months of total disability from work, meaning the surgeon writes you out completely. Your vertebrae fuse during this period.

At around the six- to nine-month mark post-fusion, your surgeon may release you to light-duty work. Common light-duty restrictions from months six to nine include sedentary work (seated work), limited driving (no more than 30 minutes at a time), no twisting or bending, and lifting no more than 20 pounds occasionally.

The fused bone continues to solidify from nine to 18 months post-fusion. During this period, your doctor may declare you to have reached maximum medical improvement (MMI), then refer you for a functional capacity evaluation (FCE) to determine your level of permanent impairment and lifelong restrictions.

Few of my spinal fusion clients are ever released to full duty. The usual endpoint is a permanent lifting limit of 20 to 40 pounds with no repetitive bending, which ends a career in construction, nursing, warehouse work, or driving. If your restrictions keep you out of your old job, you stay on temporary total disability or, once you find lighter work, temporary partial disability, up to the 500-week limit. When the doctor releases you to any type of work before you have an award for ongoing wage loss payments, you must search for a job. My page on marketing for work explains how Virginia’s job search works, and it’s where some fusion cases are lost after the surgery is won.

Although spinal fusion is a serious surgery, Virginia pays no permanent partial disability (PPD) for the spine itself. The statute lists arms, legs, hands, feet, fingers, eyes, and hearing. It does not list the back or the neck.

However, you can qualify for PPD benefits after a cervical or lumbar fusion if you continue to have ongoing problems with a leg (after a lumbar fusion) or arms (after a cervical fusion). My page on proving permanent partial impairment after a back injury explains how. Otherwise, a fusion case’s settlement value depends on wage loss and projected medical expenses, which is why documenting work restrictions matters so much.

Permanent total disability, wage-loss payments for life, takes more than a fusion. You must show paralysis, a severe brain injury, or the significant loss of use of two limbs despite having the fusion.

Will workers’ compensation pay for a second fusion, hardware removal, or the level above?

Yes, if the Workers’ Compensation Commission finds that the condition or additional surgery is related to the first injury.

Fusing one level puts more stress on adjacent levels, and adjacent segment disease is common enough that surgeons usually warn about it at the first surgical consult. Virginia treats a condition that flows naturally from a compensable injury as part of that injury under the compensable consequence doctrine. That covers hardware removal, revision when the bone doesn’t fuse (the surgeons call it pseudarthrosis), and extending the fusion to the next level.

This is why closing medical in a settlement is the most expensive item to get wrong. A spinal fusion patient who waives lifetime medical for a low figure has bailed the insurer out of paying for a potential revision. I’ll cover how to price it below.

When the fusion doesn’t work

Some fusions don’t relieve the pain, and the claim does not end when that happens. If the bone doesn’t heal, if the hardware fails, or if the pain continues with a solid fusion (the records will say failed back surgery syndrome), the treatment that follows is covered as long as your surgeon or pain specialist relates it to the injury: pain management, a spinal cord stimulator, a revision.

Often the insurer’s only move at this stage is an IME to challenge your treating physician’s opinion. I’ve read many reports at this stage of a claim that argue the injured worker is exaggerating their symptoms or has some other psychological condition that explains their complaints. The best thing you can do is keep receiving treatment and tell your doctor your concerns. Depression and anxiety following a failed fusion are the insurance company’s responsibility if the evidence connects them to the injury.

What drives the spinal fusion settlement number

The insurer prices a fusion case using algorithms and worksheets. I’ve filled out and reviewed many of these types of worksheets, and I know how to move a case’s value.

• Whether the claim and the surgery are accepted. An accepted fusion under an award is worth more than a disputed one, because the insurer agrees it owes it. A disputed fusion is priced based on the insurer’s perceived chances of winning at the hearing on authorization.
• Your average weekly wage. Every weekly benefit amount depends on it, so the same fusion is worth more to a $1,400-a-week driver than to an $850-a-week picker.
• Whether the fusion is done, and who paid. If it hasn’t happened, or your health insurance paid, the cost of the surgery and the recovery belongs in the demand. So does the therapy, the follow-up, and the medication after it. If the insurer already paid for it, you do not demand it again, but the carrier should know that you’re likely to have permanent restrictions and may need a revision or extension fusion or chronic pain management for life.
• Your restrictions versus your job. Permanent restrictions that end your trade are a huge factor in negotiating a fusion settlement. Restrictions you can work around are a small one.
• The odds of another surgery. Adjacent-level disease, hardware removal, a stimulator. The insurer discounts these to nothing in its offer. Don’t.
• Medical open or closed. A settlement that closes medical should pay for what medical would have cost. If you’re on Medicare or close to it, ask the insurer to create a Medicare Set-Aside (MSA) proposal and submit it to the Centers for Medicare and Medicaid Services (CMS) for approval.
• Whether the insurer and employer want your resignation. If the employer has light duty you can do, demanding that you resign is worth money, and you should ask for it.
• Other benefits. Social Security disability, VA disability, and long-term disability all interact with a workers’ comp settlement, and you can structure the settlement to reduce an offset. Ask before you sign.

What a settlement evaluation for a spinal fusion case looks like on the insurer’s worksheet

Take a Roanoke truck driver earning $1,400 a week who herniates L4-L5 unloading a trailer off Interstate-81, fails injections, gets no relief from a discectomy, and has a one-level lumbar fusion. He’s out six months, then released to light duty with a 25-pound limit and finds dispatch work at $700 a week. The numbers are made up; the formula is the Commission’s.

That’s $245,000 in wage exposure before lifetime medical, and this example is more optimistic than what I see in daily practice. Usually it takes longer to get released to light duty and longer to find work, which increase the potential wage loss benefits.

The insurer works back from this figure, looking to get as big a discount as it can. Your goal is to negotiate a spinal fusion settlement that gives the insurer the lowest possible discount against the potential value of your case if everything goes wrong for you.

Before you decide about the surgery

You may have doubts about the recommended surgery. That’s okay. Even if you’re on the fence, I recommend filing a claim to seek authorization and payment for the surgery. You will soon know whether the insurer accepts it or plans to dispute it. it.

Send me the basics: what happened, your wage, and where treatment stands. I’ll tell you what the insurer has already reserved for your case. Free, confidential, and I respond personally, usually the same business day. Richmond (804) 251-1620. Hampton Roads (757) 810-5614.

About the authorCorey Pollard is a Virginia workers’ compensation and Social Security Disability attorney in Richmond. Best Lawyers in America® (2020–2026), $100M+ recovered, and a former insurance defense lawyer — which is the part that matters.