Davis v. Craven Cty. ABC Bd.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-908
Filed: 17 April 2018
North Carolina Industrial Commission, I.C. No. W98733
JERRY DAVIS, Employee, Plaintiff,
v.
CRAVEN COUNTY ABC BOARD, Employer, PENN NATIONAL INSURANCE
COMPANY, Carrier, Defendants.
Appeal by defendants from opinion and award entered 16 May 2017 by the
North Carolina Industrial Commission. Heard in the Court of Appeals 7 February
2018.
The Law Offices of Nicole D. Hart, PLLC, by Nicole D. Hart, for plaintiff-
appellee.
Midkiff, Muncie & Ross, P.C., by Brian C. Groesser, for defendants-appellants.
DIETZ, Judge.
Plaintiff 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.
Defendants, who are Davis’s workers’ compensation providers, refused to
compensate him for this non-FDA-approved treatment. The Industrial Commission
DAVIS V. CRAVEN CTY. ABC BD.
Opinion of the Court
concluded that the compound cream was reasonably required to provide relief and
ordered Defendants to pay. Defendants appealed.
As 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.
We 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.
Facts and Procedural History
Plaintiff 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.
In 2011, Davis was treated by Dr. Marcono Hines at Nova Pain Management.
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Opinion of the Court
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.
Dr. 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.
At a 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
treatment and refused to authorize any further treatment by Dr. Campbell.
Davis continued to be treated by Dr. Hines and, after Davis reported his
experience with the compound cream, Dr. Hines prescribed a similar, non-FDA-
approved compound cream to treat Davis’s pain. Defendants again refused to
authorize or pay for this prescription.
On 7 July 2015, Davis moved to compel Defendants to pay for the compound
cream. In his deposition, Dr. Hines testified that Davis experienced more pain relief
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Opinion of the Court
when using the compound cream than when using Voltaren gel. Dr. Hines opined
that the compound cream was reasonably necessary to provide Davis with pain relief.
On cross-examination, Dr. Hines acknowledged that the compound cream was
not FDA-approved and that many health insurers refuse to approve the compound
cream for treatment. When asked who would bear the risk if something happened to
a patient while using a non-FDA-approved medicine, Dr. Hines stated he was no
longer comfortable prescribing compound creams and would not do so for other
patients. But because Davis had a successful experience with the compound cream,
Dr. Hines testified he would still prescribe the compound cream for Davis with the
understanding that if Davis experienced any problems, he would immediately cease
its use.
Dr. Campbell also testified. He explained that he often prescribes compound
cream and has experience with patients who have used the cream long-term. While
Dr. Campbell has noticed skin irritation in connection with the cream, he has never
seen a toxic reaction. Dr. Campbell stated the compound cream is “very safe,” even
though the combination of drugs is not FDA-approved. Dr. Campbell opined that the
compound cream was reasonably necessary to relieve Davis’s pain. Dr. Campbell also
testified that he would prescribe the compound cream to others and was unaware of
any toxicity or death with patients who used the compound cream.
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DAVIS V. CRAVEN CTY. ABC BD.
Opinion of the Court
On 26 October 2016, a deputy commissioner concluded that the compound
cream was reasonably necessary to effect a cure, provide relief, or lessen Davis’s
period of disability. The deputy commissioner ordered Defendants to authorize and
pay for the compound cream. Defendants appealed to the Full Commission. The Full
Commission affirmed the deputy commissioner and again ordered Defendants to
authorize and pay for the compound cream. Defendants timely appealed.
Analysis
Defendants oppose the Commission’s opinion and award on two grounds and
we address them in turn below.
First, Defendants argue that they should not be required to authorize and pay
for treatment using a non-FDA-approved drug. Defendants assert that “medical
compensation” under the Workers’ Compensation Act only applies to medical care
that “may reasonably be required to effect a cure or give relief.” N.C. Gen. Stat. § 97-
2(19) (emphasis added). Defendants point to a number of persuasive policy reasons
why non-FDA-approved drugs are dangerous. Given these health risks, Defendants
argue, non-FDA-approved drugs cannot be reasonably required for medical care
under any circumstances.
We reject this argument. The text of the Workers’ Compensation Act does not
limit the types of drugs that might reasonably be required solely to those that are
FDA-approved. Instead, the statute indicates that whether a particular medical
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Opinion of the Court
treatment “may reasonably be required to effect a cure or give relief” is a fact question
that must be individually assessed in each case. Were this Court to create a
categorical exclusion for non-FDA-approved medical treatments, we would, in effect,
be adding an exception to the Act where one does not exist in the text. We cannot do
so. This Court is “an error-correcting body, not a policy-making or law-making one.”
Times News Publ’g Co. v. Alamance-Burlington Bd. of Educ., 242 N.C. App. 375, 381,
774 S.E.2d 922, 927 (2015). We have no authority to create exceptions to the plain
text of statutes on policy grounds. If requiring workers’ compensation providers to
compensate injured workers for non-FDA-approved drugs is bad policy, it is for our
General Assembly to change that law. Accordingly, we reject Defendants’ argument
that non-FDA-approved drugs categorically fall outside the statutory definition of
“medical compensation” because they are never reasonably required to effect a cure
or provide relief. See N.C. Gen. Stat. §§ 97-2(19), 97-25.
Next, Defendants argue that this Court should “weigh the minimal relief that
Plaintiff subjectively reports as receiving from the cream versus the risks associated
with injured workers using non-FDA-approved drugs” and conclude that the
compound cream in this case is not “reasonably required” to give relief under N.C.
Gen. Stat. § 97-2(19). We again reject this argument.
As explained above, whether a particular drug is reasonably required is a fact
question. This Court does not engage in de novo review of facts in workers’
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Opinion of the Court
compensation cases. Instead, we apply the competent evidence standard. Under that
standard of review, if the Commission’s factual findings are supported by any
competent evidence in the record, those findings are binding on appeal. Adams v. Frit
Car, Inc., 185 N.C. App. 714, 717, 649 S.E.2d 651, 653 (2007).
Here, there was at least some competent evidence supporting the
Commission’s finding that “the compound cream recommended and prescribed by
both Dr. Campbell and Dr. Hines is reasonably required to effect a cure, provide relief,
or lessen Plaintiff’s period of disability.” Davis testified that the compound cream
provided several hours of pain relief, which was significantly better than other pain
management treatments his doctors had prescribed. The cream also permitted him
to stand and walk more freely than other treatments.
Dr. Campbell and Dr. Hines, two physicians who treated Davis, testified that
the compound cream provided relief from Davis’s pain that was more effective than
other available treatments. Both physicians also testified that Davis reported no
significant adverse effects from the compound cream and that they were not aware of
any other patients who suffered adverse side effects when using the compound
creams. Both physicians therefore concluded that the compound cream was
reasonably required to afford relief, even if the cream was not FDA-approved.
To be sure, Defendants point to other evidence in the record indicating that the
risks of these compound creams outweigh the marginal pain relief Davis experienced.
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Opinion of the Court
But this Court, applying the competent evidence standard, cannot override the
Commission’s fact-finding simply because evidence supports the opposite finding.
There is at least some competent evidence supporting the Commission’s finding and
it is therefore binding on this Court. Accordingly, we reject this argument and affirm
the Commission’s opinion and award.
Conclusion
We affirm the Industrial Commission’s opinion and award.
AFFIRMED.
Judges ELMORE and HUNTER, JR. concur.
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