North Carolina Appeals Court Says RX OK Even If Not FDA Approved
A North Carolina Appeals Court rendered a very interesting decision earlier this month that was a shocker.. I am not saying whether or not I agree with the decision. Those kinds of decisions are best left to the courts.
The case was Davis v. Craven County ABC Board, No. COA17-908, 04/17/2018. The complete decision can be found here.
It is a small PDF file. You will need a PDF reader such as Adobe Acrobat.
One of the bedrock decisions in North Carolina (I was the claims adjuster on this one) was Simon v. Triangle Materials. The Simon decision brought “effect a cure and give relief” to light and strengthened the phrase in our HQ state.
Davis’s claim was accepted as compensable. The treating physician prescribed a non-FDA-approved cream for the injured employee to use. The carrier denied the prescription. The North Carolina Industrial Commission approved its use by Davis at both Deputy Commissioner and Full Commission levels.
The insurance carrier once again appealed it now to the NC Court of Appeals. The North Carolina Appeals Court summarized their decision very well in one paragraph:
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.
Take notice of that last bolded sentence – very interesting.
I was involved in an offshore captive insurer’s decision to deny a cream that contained Fentanyl. The treating physician in Florida changed the cream from a Fentanyl-based to a non-FDA approved cream. I provided the captive with a large amount of documentation on Fentanyl. The non-FDA approved cream was OK’ed by the captive owners as a better alternative than what was considered a dangerous drug a few years ago (2011).
Why did I write up this article? Many workers comp adjusters, not only in North Carolina, need to know when an unusual decision or circumstance occurs in Work Comp. Even if you do not have claims in the Tarheel State, this type of decision may be coming to or already has happened in your state.
The reach of a decision sometimes is much longer than this North Carolina Appeals Court decision.
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