      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN NOBLES-ROARK,                       )
                                         )
      Appellant/                         )
      Claimant Below,                    )
                                         )
      v.                                 )    C.A. No. N19A-11-001 ALR
                                         )
BACK BURNER,                             )
                                         )
      Appellee/                          )
      Employer Below.                    )

                              Submitted: July 6, 2020
                              Decided: July 28, 2020

                 Upon Appeal from the Industrial Accident Board
                                 AFFIRMED

                                      ORDER

      This is an appeal from the Industrial Accident Board (“IAB”). Claimant-

Appellant, John Nobles-Roark (“Claimant”), filed an IAB petition to determine

additional compensation due, seeking compensation for medical marijuana

treatment starting in 2015. The IAB denied Claimant’s petition. Upon consideration

of the facts, arguments, and legal authorities set forth by the parties; statutory and

decisional law; and the entire record in this case, the Court hereby finds as follows:

      1.     Claimant sustained a lumbar injury on May 22, 1998, while working

for Back Burner (“Employer”). The IAB found Claimant’s injury compensable by

decision dated October 25, 2000, and Claimant underwent repair surgery thereafter.
Although Claimant was able to return to work after surgery, his condition continued

to deteriorate, prompting Claimant to petition the IAB to reinstate his temporary total

disability, which the IAB granted in part by decision dated November 20, 2003.

Between 2004 and 2007, Employer filed three separate petitions to terminate

Claimant’s benefits, alleging each time that Claimant’s disability had ended. The

IAB denied all three petitions.

      2.     From 2003 to 2018, Dr. Peter B. Bandera, M.D., treated Claimant’s

chronic back pain with a combination of epidural injections, physical therapy, and

prescription medication. Until 2016, Dr. Bandera prescribed various narcotics, such

as muscle relaxers and opioids. Dr. Bandera also prescribed stomach medication

due to harsh effects of the narcotics on Claimant’s stomach.

      3.     Claimant began using recreational marijuana in 2014. Having found

the marijuana to be effective in controlling his pain, Claimant discussed with Dr.

Bandera a possible prescription for medical marijuana. Believing that Claimant met

the criteria for obtaining medical marijuana, Dr. Bandera completed a physician’s

certification in June 2014. The State of Delaware approved Claimant for purchasing

medical marijuana in August 2014.

      4.     Claimant began purchasing medical marijuana in June 2015.

Meanwhile, in an effort to wean Claimant off of opioids, Dr. Bandera continued to

prescribe Claimant with Oxycodone at reduced dosages until October 2016.

                                          2
Claimant testified that he was fully weaned off of the narcotic medication by July

2016.

        5.   On April 4, 2019, Claimant filed a petition to determine additional

compensation due, seeking compensation for the out-of-pocket expenses Claimant

paid for medical marijuana treatment since 2015.

        6.   The IAB held a hearing on Claimant’s petition on September 23, 2019.

During the hearing, the IAB considered testimony of Claimant, who testified in-

person, and Dr. Bandera, who testified by deposition. Dr. Bandera offered his

medical opinion that Claimant’s medical marijuana treatment is reasonable and

necessary as a replacement for the opioids previously used to treat Claimant’s

chronic pain. The IAB also considered the deposition testimony of Dr. Jason

Brokaw, a medical expert certified in pain management who testified on Employer’s

behalf. Dr. Brokaw opined that Claimant is not a good candidate for medical

marijuana treatment, therefore making the treatment neither reasonable nor

necessary, based on Claimant’s various comorbidities such as Chronic Obstructive

Pulmonary Disorder, bipolar disorder, depression, and anxiety.

        7.   By decision dated October 30, 2019, the IAB denied Claimant’s

petition, finding Claimant failed to satisfy his burden of proving that the medical




                                        3
marijuana treatment was reasonable and necessary.1 After weighing the evidence,

the IAB found Dr. Brokaw’s opinion more “believable”2 and Dr. Bandera’s opinion

less credible. Specifically, the IAB noted that Dr. Bandera was “unaware of

Claimant’s significant comorbidities” and that there were “gaps in Claimant’s

treatment, both with Dr. Bandera and with the State of Delaware for medical

marijuana.”3

      8.       Claimant appeals the IAB’s October 30, 2019 decision, arguing that the

IAB committed legal error by (1) improperly considering medical studies referenced

by Dr. Brokaw, (2) relying on medical studies that, according to Claimant, contradict

Delaware law regarding the efficacy of medical marijuana, and (3) misapplying the

“reasonable and necessary” standard by accepting the opinion of Dr. Brokaw over

the opinion of Dr. Bandera.

      9.       In considering an appeal from an IAB decision, this Court’s role is

limited to determining whether the IAB’s conclusions are supported by substantial

evidence and are free from legal error.4 Substantial evidence is “such relevant




1
  Nobles-Roark v. Back Burner, IAB Hearing No. 1144068 (Oct. 30, 2019), at 55–
56.
2
  Id. at 56.
3
  Id.
4
  Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v. Chrysler
Corp., 213 A.2d 64, 66 (Del. 1965).
                                         4
evidence as a reasonable mind might accept as adequate to support a conclusion.”5

This Court “does not sit as a trier of fact with authority to weigh the evidence,

determine questions of credibility, and make its own factual findings and

conclusions.”6 The Court must give deference to “the experience and specialized

competence of the [IAB] and must take into account the purposes of the Worker’s

Compensation Act.”7

      10.    The IAB did not commit legal error by considering medical studies and

research referenced by Dr. Brokaw. First, the IAB’s rules, unlike the Superior

Court’s Rules of Civil Procedure, do not permit discovery of expert witnesses and

the Delaware legislature has given the IAB broad authority to fashion its own rules.8

Second, Delaware courts give the IAB significant deference over evidentiary and

procedural matters in IAB hearings.9          Importantly, the IAB here, addressing

Claimant’s objection to Dr. Brokaw’s references to the studies, assigned appropriate




5
  Roos Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
6
  Christiana Care Health Servs. v. Davis, 127 A.2d 391, 394 (Del. 2015); Johnson,
213 A.2d at 66.
7
  Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
8
  See 19 Del. C. § 2301A(i) (“The [IAB] may promulgate its own rules of procedure
for carrying out its duties consistent with Part II of this title and the provisions of the
Administrative Procedures Act.”).
9
  See Hellstern v. Culinary Servs. Grp., 2019 WL 460309, at *12–13 (Del. Super.
Jan. 31, 2019).
                                            5
weight to Dr. Brokaw’s testimony during its deliberations.10 Accordingly, the IAB

did not abuse its discretion and its consideration of Dr. Brokaw’s references to

previously undisclosed medical studies and research therefore did not amount to

legal error.

       11.     Claimant’s argument that Dr. Brokaw’s testimony contradicts

Delaware law regarding the efficacy of medical marijuana is similarly unavailing.

Dr. Brokaw’s testimony cited recent medical research finding potential injurious

effects of medical marijuana and highlighting the treatment’s experimental nature.

Claimant argues that the IAB committed legal error by relying on this testimony

because, according to Claimant, the testimony contradicts Delaware law.

Specifically, Claimant cites Section 4901A of Title 16 of the Delaware Code, the

General Assembly’s findings in the Delaware Medical Marijuana Act, which

acknowledges “[s]tudies . . . [that] show the therapeutic value of marijuana in

treating a wide array of debilitating medical conditions.”11

       12.     However, the question is not whether Claimant may use medical

marijuana, it is whether he will have to pay for himself. Accordingly, the IAB’s

inquiry was governed not by the Medical Marijuana Act but rather by the Workers’

Compensation Act, which requires employers to pay for reasonable and necessary


10
   Nobles-Roark v. Back Burner, IAB Hearing No. 1144068 (Oct. 30, 2019), at 20
n.2.
11
   16 Del. C. § 4901A(b).
                                     6
medical “services, medicine and supplies” causally connected with an employee’s

compensable workplace injury.12 The General Assembly’s finding that medical

marijuana can effectively treat some patients does not amount to a finding that

medical marijuana is “reasonable and necessary” to treat all patients. Indeed,

whether medical treatment is reasonable and necessary is an individualized inquiry.13

Thus, the General Assembly’s acknowledgment of medical marijuana’s efficacy in

treating some patients does not preclude a finding that medical marijuana is not

reasonable or necessary for a particular patient. Accordingly, the IAB did not

commit legal error by relying on medical studies that purportedly conflict with

studies cited in Section 4901A.

      13.    Finally, the IAB’s acceptance of Dr. Brokaw’s opinion over the opinion

of Dr. Bandera was not legal error.        The IAB made permissible credibility

determinations in order to reconcile inconsistencies in the doctors’ opinions

regarding whether medical marijuana treatment was reasonable and necessary.14



12
   See 19 Del. C. § 2322(b); see also Bullock v. K-Mart Corp., 1995 WL 339025, at
*2 (Del. Super. May 5, 1995) (“[A]n employer is liable during the period of
disability, for reasonable medical expenses incurred[,] . . . [which] must be
reasonable and necessary and must be causally related to the industrial accident.”).
13
   Brittingham v. St. Michael’s Rectory, 788 A.2d 519, 523 (Del. 2002) (“[T]he
[Workers’ Compensation Act] requires the [IAB] to determine whether the treatment
is reasonable for that specific claimant and not whether the treatment is reasonable
generally for anyone with the claimant’s condition.”).
14
   See Davis, 127 A.2d at 394; Simmons v. Del. State Hosp., 660 A.2d 384, 388 (Del.
1995).
                                          7
The Delaware Supreme Court has made clear that “[t]he function of reconciling

inconsistent testimony or determining credibility is exclusively reserved for the

[IAB].”15 “Only where there is no satisfactory proof in support of a factual finding

of the [IAB] may the Superior Court, or [the Delaware Supreme Court] for that

matter, overturn it.”16 This Court is satisfied that there is sufficient record evidence

to support the IAB’s acceptance of Dr. Brokaw’s opinion over the opinion of Dr.

Bandera.

      14.     The IAB’s factual conclusions are supported by substantial evidence,

and its decision is free from legal error. Moreover, the IAB did not abuse its

discretion.

      NOW, THEREFORE, this 28th day of July 2020, the October 30, 2019

decision of the IAB denying Claimant’s petition to determine additional

compensation due is hereby AFFIRMED.

      IT IS SO ORDERED.

                                                                                                                                  Andrea L. Rocanelli
                                               ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                               The Honorable Andrea L. Rocanelli




15
   Simmons, 660 A.2d at 388 (citing Breeding v. Contractors-One-Inc., 549 A.2d
1102, 1106 (Del. 1988)); Martin v. State, 2015 WL 1548877, at *3 (Del. Super. Mar.
27, 2015).
16
   Streett v. State, 669 A.2d 9, 11 (Del. 1995) (quoting Johnson, 213 A.2d at 67).
                                            8
