This and That Services Co. Inc. v. Nieves ( 2023 )

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”].
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.
2
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); A-
497 (Utilization Review Appeal).
10
App. to Opening Br. at A502–07 (Utilization Review Determination).
11
See id. at A497 (Utilization Review Appeal).
3
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).
4
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.
5
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).
6
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.7
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).
8
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)).
9
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.”).
10
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.11
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).
12
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).
13
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).
14
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.
15
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).
16
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).
17