IN THE SUPREME COURT OF THE STATE OF DELAWARE

THIS AND THAT §

SERVICES CO. INC., §

§ No. 441, 2022

 Employer Below, §

 Appellant, § Court Below: Superior Court 

§ of the State of Delaware

v. §

§ C.A. No. S21A-11-004

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 Opinion1

reversing a decision

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, the IAB held that the claimant employee’s ongoing narcotics

treatment after June 2017 was 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 submitted any medical 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 that 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 Servs. Co., 2022 WL 3225283 (Del. Super. Aug. 10, 2022) [hereinafter 

“Nieves II”].
2

Superior Court incorrectly interpreted 19 Del. C. § 2322F with respect to the 

justiciability of the employer’s petition, we reverse the Superior Court’s decision, 

vacate the attorneys’ fees award, and reinstate the IAB’s determination.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

A. The work injury and the utilization review

On July 29, 2014, Raymond Nieves (“Mr. Nieves”), an 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 sought 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 13, 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

Id.

5

Id. at A26–27.

6

Id. at A27.
3

April 10, 2018.7 Between 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 On August 15, 2017, the utilization reviewer 

certified Dr. Balu’s treatment as compliant with the Workers’ Compensation 

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), the “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); A497 (Utilization Review Appeal).

10 App. to Opening Br. at A502–07 (Utilization Review Determination).

11 See id. at A497 (Utilization Review Appeal).
4

September 2018, narrowing the issues to whether Dr. Balu’s narcotic prescriptions

from June 13, 2017 forward were reasonable and necessary.12

On September 14, 2018, Mr. Nieves filed a motion in limine 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, contending the remaining issues before the IAB were moot.

15 The IAB 

held a hearing to consider the Petition on September 20, 2018.

16 At that hearing, the 

IAB granted 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 Petition 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 A5 (Stipulation of Facts).

13 Id. at A524.

14 Id.

15 Id.

16 Id. at A6 (2018 IAB Decision).

17 Id. at A7.

18 Id.; See also id. at A18 (2021 IAB Decision).
5

C. The first appeal to the Superior Court

This and That Services then appealed the 2018 IAB Decision to the Superior 

Court.

19 The 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 because there was no evidence that This and 

That Services had paid 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 

Petition was limited to the June to August 2017 period. 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 limine.”22

D. The IAB remand hearings

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, both 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 2539268 (Del. Super. June 19, 2019) (emphasis 

added).

23 Answering 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. Nieves’ 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 assessing 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 2020 and testified on both 

occasions that Mr. Nieves’ treatment was reasonable, necessary, and related to the 

work injury.29 In his 2020 deposition, Dr. Balu stated during direct examination that 

he had not prescribed narcotic medication 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 Id. at A98 (Dr. Brokaw’s Tr. at 16:10–16).

27 Id. at A111 (Dr. Brokaw’s Tr. at 29:20–30:3).

28 Opening Br. at 9. 

29 App. to Opening Br. at A243 (Dr. Balu’s Tr. at 23:8–11).

30 Id. 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 was “unreasonable and unnecessary 

since June 13, 2017.”31 The IAB accepted Dr. Brokaw’s expert testimony regarding

the appropriateness of narcotic medication32 and did not limit the 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 second appeal to the Superior Court

Mr. Nieves appealed the 2021 IAB Decision 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, the Superior Court reversed 

course and held that the IAB did not have any justiciable issue before it for two 

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 Answering Br. at 3. 

37 Nieves 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 compensable claim, it shall be referred to Utilization Review.” Id.
8

not seek IAB review of Mr. Nieves’ ongoing narcotic prescriptions before first 

submitting each prescription to utilization review.

38 Second, the Superior Court held 

that because Mr. Nieves had not made 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 appeals 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 Ct. Dismissal Order). 
9

motion was pending before the Superior Court, the IAB issued an order dismissing 

This and That Services’ Petition 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 IAB, 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

January 19, 2023.

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 Answering Br. at 4.

45 Id.

46 App. to Answering Br. at B82.

47 Roos Foods v. Guardado, 152 A.3d 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 makes two 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 should 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 Superior 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.3d 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. Sept. 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, because This and That Services failed to appeal the IAB’s January 19, 2023 

decision, that decision and the IAB’s October 2022 dismissal 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 quasi-judicial, 

such as taking testimony and making findings, the judgment is not final.57 The 

Superior Court’s decision in Nieves II left the IAB with no discretion as to how to 

52 Answering 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 Mr. 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, the Superior Court ordered the IAB to dismiss the petition and did not 

direct the IAB to engage in any further inquiry.

58 Accordingly, the Superior Court’s 

order was final and appealable as a matter of right once it ruled 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 that 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 conclusion 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 proposed 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 That conclusion misapplied the unambiguous statutory language 

allowing utilization review for both proposed and provided treatment. The IAB 

found that there was evidence that Dr. Balu 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 that treatment was 

reasonable and necessary without regard to whether This and That Services first 

received an invoice for the 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, A33, A37–38 (2021 IAB Decision).
14

The Superior Court also erred in holding that the IAB lacked jurisdiction to 

consider the Petition because This and That Services did not first submit each month 

of Mr. Nieves’ ongoing narcotics treatment to utilization review. In the Superior 

Court’s view, when 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 originally 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, the 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, all of Dr. Balu’s records after 

September 10, 2018 indicated Mr. Nieves’ medication included narcotics.

67 Dr. 

64 Nieves II, 2022 WL 3225283, at *2–3.

65 App. to Opening Br. at A497 (Utilization Review 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 IAB 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 related 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. The IAB had the authority to hear all the 

68 Id. at A37–38.

69 Opening 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 and 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 2539268, at *1.

74 App. to Opening Br. at A36–38 (2021 IAB Decision).
17

the evidence.

75

 Provided there is substantial evidence to support 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 attorneys’ fees

award, and reinstate the IAB’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).