North Carolina Court of Appeals Holds Medications Not Approved by FDA can Constitute Medical Compensation

The Court of Appeals of North Carolina recently affirmed an Industrial Commission decision that use of non-FDA approved “compound creams” prescribed by an authorized treating physician was compensable medical treatment to be provided by the employer.

In Davis v. Craven County ABC Board, the plaintiff suffered compensable complex regional pain syndrome. He was prescribed a non-FDA approved compound cream and testified that it relieved some of his symptoms. The defendants refused to honor the prescription for several reasons, arguing that, among other things, the medication was not FDA approved and that the risks of using a non-approved medication outweighed the minimal pain relief experienced by the plaintiff.

The Court of Appeals held that non-FDA approved medications prescribed by an authorized physician must be approved by the defendants when the Industrial Commission finds as fact that the medications would “effect a cure or give relief.” The court stated no limiting principle to this rule. In making its decision, the court said that any limitation to the statutory language was the responsibility of the General Assembly — not the appellate courts.

Employers and insurers should take note of this case. The lack of a limiting principle likely means that physicians are free to prescribe compound creams, supplements, and many other non-FDA approved treatments with little or no constraint and little or no concern for cost. Finally, the lack of a limiting principle means that this case could technically open the door for medical marijuana to be found compensable by the Industrial Commission. With that said, it is possible that the court would point to North Carolina’s controlled substances laws or to the Controlled Substances Act as a limit if medical marijuana were approved by the Industrial Commission.

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