IN THE SUPREME COURT OF THE STATE OF DELAWARE

THIS AND THAT § SERVICES CO. INC. , § § No. 441 , 202 2 Employer Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C. A. No. S21A

- 1 1

- 004 RAYMOND NIEVES , § § Claimant Below, § Appellee. §

Submitted: June 28, 2023 Decided: August 17 , 2023

Before VALIHURA , TRAYNOR , and LEGROW , Justices

. Upon appeal from the Superior Court of the State of Delaware: REVERSED

. John J. Ellis , Esquire, HECKLER & FRABIZZIO , Wilmington, Delaware, for Appellant This and That Services Co. Inc.
Walt F. Schmittinger , Esquire, SCHMITTINGER AND RODRIGUEZ, P.A., Dover , Delaware, for Appellee Raymond Nieves

.

LEGROW , Justice :An employer seeks review of a Superior Court Opinion 1 reversing a de cision

by the Industrial Accident Board (the “IAB” or “Board” ) regarding the reasonableness of a prescribed course of treatment

. This case has a protracted procedural history despite the dispute’s limited scope

. The IAB initially dismissed this case as moot, but the Superior Court reversed and remanded that decision in
2019

. On remand , t he IAB held that the claimant employee’s ongoing narcotic s
treatment after June 2017 w as unreasonable , unnecessary , and therefore not compensable under the Workers’ Compensation Act. The Superior Court then
reversed the IAB again , holding there was no justiciable issue before the Board
because the claimant employee had not submit ted any medi cal claims to his employer for ongoing treatment

. The statute at issue in this appeal, 19 Del. C. § 2322F , provides a mechanism for employers and their workers’ compensation carriers to challenge proposed or provided health care services relating to compensable work injuries

. On appeal, the employer argues tha t the Superior Court erred as a matter of law in concluding that the IAB could not consider the compensability of an employee’s ongoing narcotics
treatment until the employee submitted invoices for payment to the employer and the employer disputed those invoices in the statutory review process

. Because the

1 Nieves v. This & That Serv s. Co. , 2022 WL 3225283 (Del. Super. Aug

. 10, 2022) [ hereinafter

“ Nieves II ” ]

.2

Superior Cour t incorrectly interpreted 19 Del. C. § 2322F with re spect to the justiciability of the employer’s petition , w e reverse the Superior Court ’s decision, vacate the attorneys’ fees award , and reinstate the IAB’s determination

. I. R ELEVANT FAC TS AND PROCEDURAL BACKGROUND
A. The work injury and the u tilization r eview O n July 29, 2014 , Raymond Nieves (“Mr. Nieves”) , a n employee of This and
That Services Co., Inc. (“This and That Services”), sustained a back injury while working on a construction project

. 2 On December 17, 2015, Mr. Nieves s ought pain management treatment from Dr. Ganesh Balu (“Dr. Balu ”) , a board

- certified physician

. 3 Dr. Balu prescribed Mr. Nieves both opiate and non

- opiate pain
medication , physical therapy , and two epidural injections. 4 Dr. Balu also ordered a discogram which showed a herniated disc and annular tear

. As of June 13, 2017, Mr. Nieves continued to complain of back pain and limited range of motion due to pain and stiffness. 5 To reduce the pain, Dr. Balu prescribed a mild opiate along with Ibuprofen

. 6 After the June 1 3, 2017 visit , Mr. Nieves did not see Dr. Balu again until

2 See App

. to Opening Br. at A19 (2021 IAB Decision). 3 See id. at A26

. 4 I d. 5 Id. at A26

– 27

. 6 Id. at A27

.3

April 10, 2018. 7 B etween those visits , Mr. Nieves underwent disc replacement
surgery on August 23, 2017

. 8
This and That Services submitted Dr. Balu’s pain management treatment from June 13, 2017 onward to utilization review in accordance with 19 Del. C. § 2322F

. Utilization review provides a mechanism for employers and their workers’ compensation carriers to challenge proposed and provided health care services relating to compensable work injuries

. 9 O n August 15, 2017 , th e u tilization reviewer certified Dr. Balu’s treatment as compliant with the Workers’ Compensati on Practice Guidelines and found all the treatment at issue was reasonable and

necessary
. 10
B. The IAB proceedings begin This and That Services disagreed with the utilization reviewer’s determination
and filed a petition (the “Petition”) with the IAB for de novo review of the utilization
reviewer’s conclusion that Dr. Balu’s pain management treatment was reasonable and necessary

. 11 The parties filed a pre
- hearing stipulation with the IAB in

7 Id. at A28

. 8 Id. at A27

. 9 19 Del

. C

. § 2322F. Under Section 2322F(j), t he “ Workers’ Compensation Oversight Panel shall approve, propose , and maintain a utilization review program for any health

- care provider providing services to injured workers

. . . The intent is to provide reference for employers, insurance carriers, and health

- care providers for evaluation of health care and charges. ” Id

. § 2322F(j) ; A

497 ( Utilization Review Appeal). 10 App. to Opening Br. at A502

– 0 7 ( Utilization Review Determination). 11 See id. at A497 ( Utilization Review Appeal ).4

September 2018, narrowing the issues to whether Dr. Balu ’s narcotic prescription s from June 13, 2017 forward were reasonable and necessary. 12 On September 14, 2018, Mr. Nieves filed a m otion in l imine with the IAB to
limit the Petition ’s relevant time period to June 13, 2017 through August 23, 2017 , and to exclude all challenges to treatment after August 2017, when Mr. Nieves
underwent disc replacement surgery
. 13 Mr. Nieves argued that the circumstances of his treatment changed as a result of the surgery. 14 Mr. Nieves also moved to dismiss
the Petition , co ntending the remaining issues before the IAB were moot

. 15 The IAB held a hearing to consider the P etition on September 20, 2018

. 16 At that hearing, t he
IAB g ranted the motion in limine and limited the treatment period in dispute to June 13, 2017 through August 23, 2017 , when Mr. Nieves had surgery

. 17 The IAB then
dismissed the P etition for mootness because This and That Services already had paid
for Mr. Nieves’ narcotics treatment from June 13, 2017 to August 23, 2017, and nothing else remained in dispute (the “ 2018 IAB Decision”)

. 18

12 Id. at A 5 (Stipulation of Facts ). 13 Id. at A 524

. 14 Id. 15 Id. 16 Id. at A6 (20 18 IAB Decision). 17 Id. at A7

. 18 Id. ; S ee also id. at A 18 (2021 IAB Decision).5

C. The first a ppeal to the Superior Court This and That Services then appealed the 2018 IAB D ecision to the Superior
Court

. 19 T he Superior Court issued a decision dated June 7, 2019 (“ Nieves I ”) , reversing and remanding the IAB’s decision. 20 The Superior Court held that the IAB erred in dismissing the Petition as moot be cause there was no evidence that This and
That Services had p aid for the medication at issue, so there was still “a real, albeit narrow, issue” for the IAB to decide

. 21 Mr. Nieves moved for reargument, seeking to clarify whether the Superior Court was reversing the IAB’s holding that the
P etition was limited to the June to August 2017 perio d. The Superior Court denied reargument, holding that “[a] full review of the evidence is needed. The Board
should make its decision after the review. My decision necessarily overrules the
limitations placed upon the parties by granting the motion in li mine .” 22
D. The IAB r emand h earings The IAB conducted remand hearings on June 3, 2021, and October 8, 2021, and issued a decision on October 18, 2021 (the “ 2021 IAB Decision”)

. 23 During the remand hearings, b oth parties presented evidence from their respective medical

19 App. to Opening Br. at A18 (2021 IAB Decision). 20 This & That Servs. Co. v. Nieves , 2019 WL 2406654 (Del. Super. June 7, 2019) [ hereinafter

“ Nieves I” ]

. 21 Nieves I, 2019 WL 2406654 , at *4. 22 This & That Servs. Co. v. Nieves , 2019 WL 2 5392 6 8 (Del. Super. June 19 , 2019) (emphasis added)

. 23 Answ ering Br. at 2. According to the parties, proceedings were delayed due to the COVID

- 19 pandemic.6

experts. This and That Services’ expert, Dr. Jason Brokaw (“ Dr. Brokaw ”) , a board certified physician, examined Mr. Nieves and reviewed his medical records. 24 Dr.
Brokaw testified that Mr. Niev es’ use of narcotic medication was unreasonable , unnecessary, 25 and “ outside the Delaware Practice Guidelines related to positive functional outcomes and positive patient responses. ” 26 Dr. Brokaw testified that Dr. Balu’s records contained many mistakes and boilerplate templated portions that did not change from month to month

. In his view, the templated portions of the records
indicated Dr. Balu was not appropriately asses sing Mr. Nieves for functional improvements. 27
In response to Dr. Brokaw’s testimony , Mr. Nieves relied on Dr. Balu ’s deposition testimony. 28 Dr. Balu was deposed in 2018 and 20 20 and testified on both
occasions that Mr. Nieves’ treatment was reasonable, necessary, and related to the work injury. 29 In his 202 0 deposition, Dr. Balu stated during direct examination that he had not prescribed narcotic medicati on to Mr. Nieves since September 10, 2018 , and that statements to the contrary in his medical records were erroneous
. 30

24 App. to Opening Br. at A19 (2021 IAB Decision). 25 Id. at A188 (Dr. Brokaw’s Tr

. at 28: 13

– 20 ). 26 I d. at A98 (Dr. Brokaw’s Tr

. at 16:10

– 16). 27 I d. at A111 (Dr. Brokaw’s Tr

. at 2 9:20

– 30:3 ). 28 Op ening Br. at 9. 29 App. to Opening Br. at A243 ( Dr. Balu’s Tr

. at 23:8

– 11 ). 30 I d. at A328 (Dr. Balu’s Tr

. at 28:14

– 29:5 , 35:19

– 24).7

The IAB , “upon consideration of [ Nieves I ] , as well as upon consideration of all of the evidence presented during the hearing on the merits of this case , ” concluded
the narcotic medication Dr. Balu prescribed w as “ unreasonable and unnecessary since June 13, 2017.” 31 The IAB accepted Dr. Brokaw’s expert testimony regarding the appropriateness of narcotic medication 32 and did not limit t he time period under
review to the period before Mr

. Nieves’ disc replacement surgery. 33 The IAB also
found that Dr. Balu’s records were sloppy and internally inconsistent. 34 In its 2021 Decision, the IAB held that This and That Services met its burden of proof regarding
the non
- compensability of the narcotic medication since June 13, 2017

. 35
E. The s econd a ppeal to the Superior Court Mr. Nieves appealed the 2021 IAB D ecision to the Superior Court , 36 which
issued an Order dated August 10, 2022 , again reversing the IAB (“ Nieves II ”)

. After concluding in Nieves I that the Petition was justiciable , t he Superior Court reversed
course and held that the IAB did not have any justiciable issue before it for t wo separate reasons

. 37 First, the Superior Court held that This and That Services could

31 Id. at A34 (2021 IAB Decision). 32 Id. at A36. 33 Id. at A38. 34 Id. at A36. 35 Id. at A38. 36 Answ ering Br. at 3. 37 Nieve s II

, 2022 WL 3225283, at * 3

. “Utilization Review proceedings address a claim to certain specific medical treatments. When new or subsequent claims are made, the Utilization Review process can and should be used again. In cases where a medical invoice pertains to an acknowledged compen sable claim, it shall be referred to Utilization Review.” Id.8

not seek IAB review of Mr. Nieves’ ongoing narcotic prescription s before first submitting each prescription to utilization review

. 38 Second, t he Superior Court held
that because Mr. Nieves had not ma d e a claim to his employer for payment of
narcotics treatment , there was no justiciable issue for the Board to decide. 39 Despite previously holding that its decision in Nieves I “necessarily overrule [d] ” the 2018
IAB Decision limiting the Petition to the June to August 2017 timeframe, the Superior Court concluded that the sole issue before the IAB after the June 7, 2019
remand was the reasonableness of Dr. Balu’s June 2017 prescription for narcotic
medication , which the Superior Court now held was moot because This and That
Services previously paid that invoice

. 40
F. This and That Services a ppeals to this Court Before This and That Services filed its first notice of appeal in this Court, Mr. Nieves filed a motion for attorneys’ fees, which the Superior Court granted on November 21, 2022. 41 While Mr. Nieves’ attorneys’ fees motion was pending, This
and That Services appealed Nieves II to this Court

. We dismissed that appeal as interlocutory. 42 Additionally , during the period when Mr. Nieves’ attorneys’ fees

38 Id. 39 Id. at * 2

. 40 Id. at * 3

. 41 App. to Opening Br. at A47

– 50 (Superior Ct

. Order). 42 Id. at A51

– 54 (Supreme C t. Dismissal Order).9

motion was pending before the Superior Court , the IAB issued an order dismissing
This and That Services’ P etition as instructed in Nieves II

. 43
This and That Services sought reargument with the IAB, contesting the IAB’s October 2022 remand decision and requesting that it rescind or stay that order

. 44 On November 23, 2022, while This and That Services’ motion for reargument was pending with the IA B , This and That Services filed a Notice of Appeal with this
Court , appealing the Superior Court’s August 10, 2022 and November 21, 2022
decisions. 45 The IAB denied This and That Services’ motion for reargument on
J anuary 19, 20 23

. 46
II. ANALYSIS
In an appeal from an IAB decision, this Court’s scope of review is limited to examining the record for errors of law and determining whether the Board’s factual findings are supported by substantial evidence. 47 “Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 48 “ It is ‘ more than a scintilla but less than a preponderance of the

43 Nieves II, 2022 WL 3225283, at *3 (“I reverse the Board’s decision and remand the case to be dismissed.”). 44 Answ ering Br. at 4. 45 Id. 46 App. to Answering Br. at B82. 47 Roos Foods v. Guardado , 152 A.3 d 114, 118 (Del. 2016). 48 Christiana Care Health Servs. v. Davis , 127 A.3d 391 , 394 ( Del. 2015) ( quoting Histed v. E.I. Du Pont de Nemours & Co. , 621 A.2d 340, 342 (Del. 1993) (internal quotation marks omitted)).10

evidence. ’ ” 49 Alleged errors of law are reviewed de novo , 50 but we accord significant weight to the IAB’s application of legal principles within Delaware’s workers’ compensation scheme, which the IAB applies on a weekly, if not daily, basis. 51
This and That Services make s t wo primary arguments on appeal from Nieves
II

. First , it contends that the Superior Court erred as a matter of law, abused its discretion, and improperly overruled the IAB’s factual findings. Second , it asserts
that substantial evidence in the record supported the IAB’s decision that Mr. Nieves’ ongoing use of narcotic medication was unreasonable and unnecessary. Mr. Nieves disputes the merits of these two arguments and additionally maintains that This and
That Services failed to appeal the IAB’s October 2022 decision to the Superior Court
and this appeal therefore sho uld be dismissed as jurisdictionally improper.
A. This and That Services properly and timely appealed to this Court. Mr. Nieves argues this appeal should be dismissed with prejudice because This and That Services did not perfect a timely appeal of the Superi or Court’s

49 Davis , 127 A.3d at 394 ( quoting Breeding v. Contractors

- One

- Inc. , 549 A.2d 1102, 1104 (Del. 1988)). 50 State v. Gates , 213 A.3d 80 , 85 (Del. 2019). 51 Davis , 127 A.3 d at 395 (citing Histed , 621 A.2d at 342 (“When factual determinations are at issue, we must take due account of the experience and specialized competence of the Board and of the purposes of our workers ’ compensation law.” ) ); Spring Constr. Co. v. Mendez , 1992 WL 302072, at *2 (Del. Super. S ept. 15, 1992) (“Since one of the most compelling reasons for creating administrative agencies is to allow the judicial system to make use of the knowledge and experience of specialists, this Court would be wasting this resource if it lightly dismissed the fruits of such expertise. It may not do so when the decision is based on substantial evidence and the product of an orderly deductive process.”).11

October 2022 remand decision. 52 According to this argument, Nieves II was an interlocutory decision, even after the Superior Court resolved the attorneys’ fees motion, because the Superior Court remanded the case to the IAB. 53 In Mr. Nieves’ view, be cause This and That Services failed to appeal the IAB’s January 19, 2023 decision, that decision and th e IAB ’s October 2022 d ismissal order are final and binding and this Court is without jurisdiction to consider this appeal

. 54
Mr. Nieves’ argument is flawed because the Superior Court’s remand to the IAB was only for the Board to perform a ministerial function

. 55 A decision of the Superior Court remanding a case to an administrative agency or board may be either final or interlocutory, depending on the “nature of the functions directed to be performed ” on remand. 56 If the functions are “purely ministerial, ” such as a direction to enter a specific award, the judgment is final ; if the functions are q uasi

- judicial, such as taking testimony and making findings, the judgment is not final. 57 The
S uperior Court’s decision in Nieves II left the IAB with no discretion as to how to

52 Answ ering Br. at 23. 53 Id. at 20

– 21. 54 Id. at 22

– 23. 55 DiFrancesco v. Mayor & Town Council of Elsmere , 2007 WL 1874761, at *2 (Del. Super. June 28, 2007), aff ’ d sub nom. Mayor & Town Council of Town of Elsmere v. DiFrancesco , 947 A.2d 1122 (Del. 2008). Although Mr. Nieves argues that the Board on remand awarded medical fees and attorneys’ fees to M r. Nieves, that issue was not actually before the Board. The Superior Court remanded to the IAB for the case “to be dismissed.” The outstanding fee petition was pending before , and ultimately decided by , the Superior Court. 56 McClelland v. Gen. Motors Corp., 214 A.2d 847, 848 (Del. 1965)

. 57 Id.12

rule. Rather, t he Superior Court ordered the IAB to dismiss the petition and did not direct the IAB to engage in any further inquiry

. 58 Accordingly, t he Superior Court’s order was final and appealable as a matter of right once it rule d on the fee petition , and this Court has jurisdiction to consider the appeal on its merits

. B. The Superior Court erred as a matter of law in determining that the Petition did not raise any justiciable issues. Turning to the merits of the appeal, This and That Services first contends that the Superior Court erred as a matter of law in concluding tha t there was no justiciable controversy before the IAB. The Superior Court reached that conclusion for two reasons: (1) Mr. Nieves had not submitted an invoice to This and That Services relating to the narcotic treatment; and (2) This and That Services had not submitted any treatment after August 2017 to utilization review. But the relevant statutory language does not support the Superior Court’s conclu sion that “bills must be at issue” before the parties may engage in the utilization review process. 59 An actual controversy exists when “one side makes a claim of a present specific right, and the other side makes an equally definite claim to the contrary.” 60

58 Where the Board is directed to enter a specific different award, the judgment is final. McClelland, 214 A.2d at 848. Mr. Nieves’ reliance on Johnson Controls, Inc. v. Barkley , 2004 WL 2239724 (Del. 2004) is misplaced. In Barkley , the Superior Court remanded the case to the IAB so it could apply the correct causation standard and determine if benefits were owed. Id. at *1 n1. Because the remand did not direct the IAB to enter a specific judgment, it was not a remand for a purely ministerial function. Id. at *2. 59 Nieves II , 2022 WL 3225283, at *3. 60 Goldberg v. Rehoboth Beach , 565 A.2d 936, 939 (Del. Super. 1989).13

A justiciable controversy arises under Section 2322F(j) of the Workers’ Compensation Act when an employer or its insurance carrier disputes proposed or provided healthcare services. The statute relevantly provides that “ [ a ] n employer or insurance carrier may engage in utilization review to evaluate the quality, reasonableness and/or necessity of prop osed or provided health

- care services for acknowledged compensable claims. ” 61 The Superior Court did not address that statutory language but held that , because Mr. Nieves did not submit invoices for payment of his narcotic medication
after June 2017 , there was no issue in dispute, and therefore nothing was justiciable

. 62 T hat conclusion misapplied the unambiguous statutory language allowing utilization review for both proposed and provided treatment. The IAB
found that there was evidence that Dr. B alu prescribed narcotic medication to Mr.
Nieves because of his work

- related low back injury until at least 2019 , 63 and This
and That Services was statutorily permitted to contest whether th at treatment was reasonable and necessary without regard to whether This and That Services first
received an invoice for t he treatment

.

61 19 Del. C. § 2322F(j) (emphasis added). 62 Nieves II , 2022 WL 3225283, at *2. The IAB and the Superior Court found This and That Services had paid for the June 2017 prescription, thereby mooting that issue. We agree with this conclusion legally and factually. 63 App. to Opening Br. at A31, A 33, A 37

– 38 (2021 IAB Decision).14

T he Superior Cour t also erred in holding that the IAB lacked jurisdiction to
consider the P etition because This and That Services did not first submit each mont h
of Mr. Nieves’ ongoing narcotics treatment to utilization review

. In the Superior
Court ’s view , w hen new or subsequent claims are made, the employer must return
to utilization review , 64 even when each claim relates to the ongoing treatment that was orig inally sent to utilization review

. That conclusion is inconsistent with this case’s facts, the purpose of the utilization review process , and the Superior Court’s previous holding in Nieves I

. First, as a factual matter , t he evidence the parties offered to the IAB indicates
that there was an actual controversy in dispute regarding the reasonableness of
narcotic medication after June 2017

. In its Petition, This and That Services contested the compensability of the narcotics from “ June 13, 2017 and onwards

. ” 65 The Board heard conflicting evidence regarding Mr. Nieves’ treatment. Mr. Nieves testified on two occasions that he continued to receive narcotic prescriptions after June 2017 and
into 2019 , but he stated during the IAB hearing that he did not receive any narcotic prescriptions from Dr. Balu after 2017

. 66 Further, a ll of Dr. Balu’s records after September 10, 2018 indicate d Mr. Nieves’ medication included narcotics

. 67 Dr.

64 Nieves II, 2022 WL 3225283, at *2

– 3

. 65 App. to Opening Br. at A 497 ( U tilization R eview Appeal). 66 Id. at A31, A33, A36 (2021 IAB Decision). 67 Id. at A38 (2021 IAB Decision).15

Balu , however, testified that he did not prescribe narcotic medication to Mr. Nieves after 2017, dismissing the contrary medical records as inaccurate. 68 Dr. Brokaw also
testified the records indicated Mr. Nieves continued to receive such medication. 69 Acknowledging the conflicting evidentiary record , the I AB stated “if Dr. Balu kept accurate records,

. . . this matter may never have even required a hearing before the
Board.” 70 The record reflects that This and That Services was disputing Dr. Balu’s
narcotic medication prescriptions after June 2017, and the parties presented evidence to the Board regarding that medication’s use in 2017, 2018, and 2019. Second, the Superior Court’s holding lacks statutory support. The purpose of utilization review is to permit “prompt resolution of issues relat ed to treatment and/or . . . practice guidelines for those claims which have been acknowledged to be compensable.” 71 The Superior Court, however, held the IAB could not consider the
reasonableness and necessity of medical treatment until This and That Services first
submitted each invoice to utilization review

. As previously explained, the Superior
Court’s focus on invoices misreads Section 2322F. The record shows This and That Services consistently challenged Mr. Nieves’ narcotic prescriptions beginning June 13, 2017 , without specifying an end date. Th e IAB had the authority to hear all the

68 Id. at A37

– 3 8

. 69 Op ening Br. at 16

– 17. 70 App. to Opening Br. at A38 (2021 IAB Decision). 71 Opening Br. at 21.16

issues before it , including the ongoing prescription of the challenged medication
after the utilization review determination

. 72 Finally , the Superior Court’s reasoning contradicts its holding in Nieves I

. In its 2018 decision, the IAB granted Mr. Nieves’ motion in limine to limit its review
to the June to August 2017 time period, but the Superior Court expressly reversed that holding in Nieves I , explaining its decision “overrule [d] ” the limitations imposed when the IAB granted the motion in limine

. 73 The compensability of narcotic
medication from June 2017 forward therefore was a justiciable issue before the IAB
on remand

. C. The IAB’s decision that Mr. Nieves’ ongoing use of narcotic medication was unreasonable and unnecessary is supported by substantial evidence in the record. Finally, This a nd That Services contends that this Court should reinstate the IAB’s decision as to compensability because the ruling was supported by substantial
evidence. When the IAB concluded that Mr. Nieves’ continued prescriptions for
narcotics from June 2017 were unreasonable and unnecessary, it did so based on the testimony of Mr. Nieves and the parties’ medical experts. 74 In its evaluation of the case, the IAB recognized the inconsistencies in Dr. Balu’s medical records. When evidence or testimony conflicts , the Board must resolve credibility issues and weigh

72 19 Del. C. § 2322F(j). 73 This & That Servs. Co. v. Nieves , 2019 WL 2 539268 , at *1

. 74 App. to Opening Br. at A36

– 38 (2021 IAB Decision).17

the evidence

. 75 Provided there is substantial evidence to supp ort its decision, the Board may accept the testimony of one physician over another. 76 The IAB held that the evidence best supported Dr. Brokaw’s opinion that the narcotic medication was

“ inappropriate, unreasonable, and unnecessary for [Mr. Nieves] since at least June 13, 2017.” 77 The IAB’s findings were supported by substantial evidence.
III. CONCLUSION For the foregoing reasons, we reverse the Superior Court’s August 10, 2022 Memorandum Opinion and Order, vacate its November 21, 2022 attorney s’ fees
award , and reinstate the I AB ’s October 18, 2021 decision. 78

75 Gen. Motors Corp. v. McNemar , 202 A.2d 803, 807 (Del. 1964). 76 Standard Distributing Co. v. Nally , 630 A.2d 640, 646 (Del. 1993). 77 App. to Opening Br. at A36 (2021 IAB Decision). 78 See Davis , 127 A.3d at 395

– 96 ( reversing the Superior Court’s decision and reinstating the IAB’s decision ); DiSabatino Bros., Inc., v. Wortman , 453 A.2d 102 , 106 ( Del. 1982) ( same ).