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Norman McAtee sustained industrial injury to his neck, back, psyche and other body parts while working for Briggs and Pearson Construction as a carpenter. On March 30, 2011 he received a stipulated award of I 00% disability and future medical treatment.

McAtee had unsuccessful back surgery, and he has chronic pain. A nerve stimulator was not effective. Thus he has used narcotic analgesics for several years and has tried various formulations, including Duragesic patches which are helpful and improve his functioning.

McAtee appealed a December 2, 2014 IMR determination that modified PTP requests for additional Duragesic. The IMR rationale states that “Guidelines go on to recommend discontinuing opioids if there is no documentation of improved function and pain.” The rationale further states, “within the documentation available for review, there is no indication that the medication is improving the patient’s function or pain (in terms of specific examples of functional improvement and percent reduction in pain or reduce NRS), no documentation regarding side effects, and no discussion regarding aberrant use.” The WCJ denied the appeal, but a WCAB panel reversed in the case of McAtee v Briggs and Pearson Construction.

On appeal, McAtee argued it was shown at trial that the December 2, 2014 IMR determination resulted from plainly erroneous or implied findings of fact as described in Labor Code section 4610.6(h)(5). The WCAB agreed. The !MR findings are mistakes of fact as a matter of ordinary knowledge and not a matter that is subject to expert opinion. The PTP “specifically documents applicant’s improved function and reduced pain with his use of the Duragesic patches.” These indications of improved function,reduced pain with use of the medication, along with documentation concerning potential side effects and aberrant use, show that the contrary !MR findings were mistakes of fact as a matter of ordinary knowledge.

Reconsideration was granted, the decision was reversed, and hereby remanded to the Administrative Director pursuant to Labor Code section 4610.6(i) for Independent Medical Review by a different reviewer.

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