Davis v. Craven Cty. ABC Bd.

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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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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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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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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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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