in the Court of Appeals 7 February 2018.
by defendants from opinion and award entered 16 May 2017 by
the North Carolina Industrial Commission. No. W98733
Law Offices of Nicole D. Hart, PLLC, by Nicole D. Hart, for
Midkiff, Muncie & Ross, P.C., by Brian C. Groesser, for
Jerry Davis injured his ankle at work and struggled with pain
for many years. In 2014, his doctors prescribed a compound
cream that Davis found more effective than previous
treatments. This compound cream was not approved by the U.S.
Food and Drug Administration.
who are Davis's workers' compensation providers,
refused to compensate him for this non-FDA-approved
treatment. The Industrial Commission concluded that the
compound cream was reasonably required to provide relief and
ordered Defendants to pay. Defendants appealed.
explained below, we reject Defendants' argument that
non-FDA-approved drugs should be categorically excluded from
medical compensation under the workers' compensation
system. The text of the Workers' Compensation Act does
not limit drug treatment solely to FDA-approved drugs.
Defendants assert a number of persuasive policy arguments
concerning the risks of non-FDA-approved drugs, but this
Court has no authority to rewrite the law on policy grounds.
That is a task for the legislative branch.
likewise reject Defendants' argument that the compound
cream is not reasonably required to provide relief in this
case because its risks outweigh the marginal pain relief
Davis experienced. This is a fact question for the
Commission. There is at least some competent evidence
supporting the Commission's findings and they are
therefore binding on this Court. Accordingly, we affirm the
Commission's opinion and award.
and Procedural History
Jerry Davis began working for the Craven County ABC Board in
2009. In May 2010, Davis injured his right ankle while at
work and began receiving workers' compensation.
2011, Davis was treated by Dr. Marcono Hines at Nova Pain
Management. Dr. Hines prescribed Davis Voltaren gel, an
FDA-approved drug. In 2014, Defendants sent Davis to Dr.
Garlon Campbell, a pain management physician at The Carolinas
Center for Surgery. On 4 June 2014, Dr. Campbell conducted a
physical examination of Davis and noted that Davis's
symptoms were consistent with complex regional pain syndrome
or reflex sympathetic dystrophy.
Campbell prescribed Davis a compound cream to treat his
condition. That compound cream was not approved by the FDA,
the federal agency that regulates prescription drugs.
However, the drugs that are "compounded" together
to create the cream each are FDA-approved on their own for
the treatment of various medical conditions.
follow-up visit, Davis told Dr. Campbell that the compound
cream relieved some of his symptoms. Dr. Campbell recommended
continued use of the compound cream for three months.
Defendants refused to pay for this non-FDA-approved drug