   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


PORTIA GARRETT,                       )
                                      )
     Claimant-Below Appellant,        )
                                      )
           v.                         ) C.A. No. N17A-06-007 JAP
                                      )
AMAZON.COM, INC.,                     )
                                      )
     Employer-Below Appellee.         )
                                      )


                    MEMORANDUM OPINION

     Portia Garrett appeals from the decision of the Industrial

Accident   Board,   which    denied     her   petition   for   worker’s

compensation. Garrett’s only contention on appeal is that the Board

erred when it refused to strike the testimony of her employer’s Site

Safety Specialist, Brian Martin.      According to Garrett, Martin’s

testimony was “pure hearsay” since he was not present for an

“accident re-creation” investigation conducted by Amazon.          The

judgment of the Board is affirmed for the reasons stated below.

                          BACKGROUND

     Portia Garrett alleges that on October 14, 2015, she was injured

at work while employed by Amazon.com, Inc. as a quality control
associate. Garrett filed a claim for worker’s compensation benefits

with the Department of Labor’s Industrial Accident Board in August

of 2016. The Board held its hearing on January 27, 2017, during

which Garrett presented deposition testimony from physician, Dr.

Mark Eskander, and her own testimony.

     According to Garrett, she was sitting on a stool counting

product, when a fellow employee operating a device known as a pick

cart repeatedly pushed the cart into her left shoulder, jerking her

neck and shoulder and causing pain in those areas. Garrett did not

know the name of the employee that struck her, but described the

employee as a “foreign woman.”       Garrett also testified that the

employee   stopped    and   apologized   when    she   struck   her.

Contemporaneous evidence raises serious questions about the

credibility of this testimony. Testimony at the hearing revealed that

at the time of the accident, when Garrett reported it to her manager,

Garrett: (1) could not describe the employee that struck her; (2) did

not even know the employee’s gender; and (3) stated that the

employee never stopped after striking her. Because of the absence of

any meaningful description, Amazon was unable to identify the

employee that supposedly hit her.      Garrett sought treatment at
                                 2
Amazon’s in-house medical clinic and was later referred for outside

treatment.     She said that about two weeks after the accident,

someone named “Ms. V” from Amazon’s Safety Department

conducted an “accident re-creation” investigation, during which

Garrett was present and participated.

        Testimony also revealed that Garrett had injured her neck and

shoulder in car accidents in 2002, 2004, 2005, and 2008. And in

December 2014, while employed by Integrity Staffing Solutions, she

made a claim for a worker’s compensation based on an injury to her

left shoulder, which was denied.       Notably, on her Amazon injury

report, Garrett denied any prior injuries to her left shoulder.

        Amazon presented deposition testimony from Dr. Samuel Matz,

and also called its Site Safety Specialist, Brian Martin.         Martin

testified from his personal knowledge that the pick cart and stool

were standard equipment with particular height, length, and width

specifications, and that the pick cart does not obstruct the operator’s

vision and can easily be maneuvered. Martin said that he could not

think of anyone with the name “Ms. V,” but rather, the re-creation

was done shortly after the accident by an employee named Jaime

Hall.    Hall reported to Martin that the re-creation exercise was
                                   3
“unsuccessful” in that they could not recreate the incident in the way

that Garrett described it because the push cart would have hit the

stool, and if it did hit Garrett at all, the highest shelf on the cart

would only reach as high as her mid-back, not her shoulder.

       Martin was not personally present during the re-creation, but

he reviews all investigations and the notes and findings therefrom.1

He confirmed that any notes that he read and processed during

Amazon’s investigation were incorporated into a safety report, which

was produced to Garrett’s counsel.2               Garrett’s counsel did not

immediately object to Martin’s testimony after determining that he

was not present at the re-creation, choosing instead to continue

questioning Martin on forms Garrett completed after her December

2014 Integrity Staffing injury, her October 2015 Amazon injury, and

the treatment Garrett sought for those injuries.3

       Only after Martin was excused from the witness stand, did

Garrett’s counsel object to Martin’s “entire testimony since we were

never given any of the written materials about the investigation and

the witness himself was not physically present at the reenactment


1   See App. to Opening Br., Ex. A (Hearing Tr., at 94:2-22).
2   Id. at 97:14-17.
3   Id. at 94:23—97:9.
                                        4
that he described.”4    Amazon responded that everything from the

investigation and reenactment was contained in the report provided

to Garrett’s counsel before the hearing. The Board denied the motion

to strike, holding that the request to strike all of the witness’s

testimony was overbroad, but as to the “re-creation” testimony

specifically, the Board took note of the objection and stated it would

give the testimony the weight that it deserved considering that Martin

was not present for the re-creation.5

       On May 30, 2017, the Board issued a written decision denying

Garrett’s petition for worker’s compensation benefits. Garrett filed

an appeal in the Superior Court on June 16, 2017. The court initially

scheduled oral argument, but before oral argument was held, Garrett

terminated her counsel. By Order dated February 27, 2018, Garrett

was given 90 days to obtain new counsel and notify the court. Garrett

has not retained new counsel and the court therefore feels that oral

argument would not be useful.      Thus, upon consideration of the

briefs filed by the parties and the entire record below, this is the

court’s ruling.


4   Id. at 101:15-19.
5   Id. at 103:19-24.
                                  5
                                  ANALYSIS

      On appeal, this court reviews a decision of the Industrial

Accident Board for errors of law to “determine whether substantial

evidence exists to support the Board’s finding of fact and conclusions

of law.”6    Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”7

This court reviews errors of law de novo, but absent an error of law,

the standard of review for the Board’s decision is abuse of discretion.8

      “[T]he Rules of Evidence do not strictly apply to administrative

hearings. Rather, the agency may hear ‘all evidence which could

conceivably throw light on the controversy.’”9 Industrial Accident

Board Rule No. 14(b) states:

      The rules of evidence applicable to the Superior Court of
      Delaware shall be followed insofar as practical, however,
      that evidence will be considered by the Board which, in its
      opinion, possesses any probative value commonly
      accepted by reasonably prudent men in the conduct of
      their affairs. The Board may, in its discretion, disregard
      any customary rules of evidence and legal procedures so
      long as such a disregard does not amount to an abuse of
      discretion.


6  Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
7  Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993).
8 Person-Gaines, 981 A.2d at 1161.
9 Tenaglia-Evans v. St. Francis Hosp., 2006 WL 3590385, at *3 (Del. 2006) (citing

Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 240 (Del.1979)).
                                       6
This includes the Board’s ability to hear and weigh the reliability of

hearsay testimony. “Only when the hearsay is incompetent will the

Board’s reliance on such testimony be deemed an abuse of

discretion.”10   “This issue only becomes relevant, however, if the

Board’s decision rests solely upon hearsay evidence.”11

     Garrett contends that the Board abused its discretion when it

refused to strike Martin’s testimony, and that the Board’s reliance on

Martin’s testimony was an error of law. There were two main aspects

to Martin’s testimony: first, what happened during the accident re-

creation based on what he was told by Jaime Hall; and second, the

equipment specifications for Amazon’s standard pick carts and bins

based on his personal knowledge.          Even assuming that Martin’s

testimony about the re-creation was hearsay, his testimony about

pick carts was not. Yet, Garrett sought to strike all of it.

     The Board did not abuse its discretion in refusing to strike

Martin’s testimony because the law is well-established that the Board

may disregard the strict application of evidentiary rules, and hear

hearsay evidence. The Board stated that it would take into account


10 Tenaglia-Evans, 2006 WL 3590385, at *3.
11 Singletary v. Townsends, Inc., 1995 WL 339174, at *3 (Del. Super. May 30,
1995) (emphasis added).
                                     7
the fact that Martin was not present for the re-creation. Indeed, the

Board did not appear to give much weight, if any at all, to Martin’s

testimony about the re-creation because its findings of fact and

conclusions do not reference it. Rather, the Board’s decision rested

on Martin’s competent evidence about the pick cart dimensions, and

on its finding that Garrett was not credible. Thus, the Board’s denial

of the motion to strike did not amount to an error of law because the

Board’s decision, to the extent it relied at all on hearsay evidence, did

not rest solely on hearsay evidence.

      The Board also found that no work injury occurred. Substantial

evidence in the record supports this finding.                   In weighing the

credibility of both Martin and Garrett, the Board ultimately had

“serious concerns” about Garrett’s testimony,12 including her denial

of prior shoulder injuries. The Board did not believe Garrett’s story

that another employee, who could not be described, would continue

to push a cart into an obstruction without stopping or looking to see

what was hit. On top of that, it found Martin’s testimony as to the

dimensions of the cart credible, such that the Board determined that


12 See Playtex Products, Inc. v. Leonard, 2002 WL 31814637, at *6 (Del. Super.
Nov. 14, 2002) (It is solely the Board’s function to resolve conflicts in the evidence
and weigh witness credibility.).
                                          8
anyone pushing the cart would be able to see around it without

difficulty. And, the evidence showed that given the maximum height

of the push cart even when it was loaded with bins, it was unlikely a

cart could strike her shoulder.        This was substantial evidence

supporting the Board’s decision.

                           CONCLUSION

      For the foregoing reasons, the judgment of the Industrial

Accident Board is AFFIRMED.

      IT IS SO ORDERED.




Dated: June 01, 2018
                                       _____________________________
                                       John A. Parkins, Jr., Judge



oc:   Prothonotary

cc:   Portia Garrett, c/o Little Mastens Corner Road, Felton,
      Delaware 19943
      John J. Ellis, Esquire, Heckler & Frabizzio, Wilmington,
      Delaware




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