What the panel ordered
Petition for Reconsideration is denied.
Defendant filed a Petition for Removal regarding the November 2, 2021 Findings and Award; the Board treated it as a Petition for Reconsideration from a final order.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The IMR determination was based on the ODG guideline for pain, but applicant's lymphedema treatment was for objectively verified fluid retention, not pain; this was a plainly erroneous finding of fact not subject to expert opinion.
From the decision · page 9Here, there is clear and convincing evidence reflecting that applicant has lymphedema. (Exhibit 4, p. 9; Exhibit 8, p. 3; Exhibit 10, pp. 1, 3; Exhibit 19, p. 2.) This lymphedema causes applicant to retain significant amounts of lymphatic fluid. In 2013, Dr. Suchard reported that applicant lost 68 pounds of lymphatic fluid and that she subsequently regained 20 pounds of that fluid. (Exhibit 5 at pp. 2-3; see also Exhibit 10, pp. 1, 3, 7, 8.) The evidence further reflects that the lymphatic massage is used to treat applicant's accumulated lymphatic fluid and not chronic pain. An expert opinion is not necessary to know that there is a difference between treating subjective complaints of pain and treating the applicant's objectively verified retention of considerable amounts of fluid. However, the Administrative Director's June 3, 2021 determination was based on the fact that the ODG does not recommend lymphatic massage for pain. (Exhibit 31 at p.