Today’s post comes from Anthony L. Lucas at the Jernigan Law Firm.

Davis v. Craven County ABC Bd.: Are Non-FDA-Approved Medications/Treatments Covered Under Workers’ Compensation?

The North Carolina Court of Appeals recently published an opinion refusing to add an exception to the Workers’ Compensation Act that would exclude medications and/or treatments that have not been approved by the Food and Drug Administration (FDA).

In Davis v. Craven County ABC Bd., No. COA17-908 (April 17, 2018), the injured worker had been prescribed a non-FDA-approved compound cream for pain relief by two doctors who both testified that the compound cream was reasonably necessary to provide Davis with pain relief. The Defendants refused to pay for the compound cream. A deputy commissioner and the Full Commission ordered the Defendants to authorize and pay for the compound cream concluding that the cream was reasonably necessary to effect a cure, provide relief, or lessen Davis’ period of disability.

Notwithstanding that the treating physician was authorized, the Defendants arbitrarily refused to pay for the medications and prohibited the claimant from going back to the claimant’s treating physician. They appealed to the Court of Appeals. The Defendants argued several policy reasons why non-FDA-approved drugs are dangerous and cannot be reasonably required for medical care under any circumstances. However, the Court rejected those arguments because it “has no authority to rewrite the law on policy grounds.”

The Plaintiff was forced to pay for his own medications and fortunately had an attorney who was willing to litigate the issue on behalf of the claimant to the Court of Appeals without any payment of legal fees.