IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
STANFORD FOWLER, ) ) Appellant, ) ) v. ) C. A. No. 14A-01-001 MJB ) STATE OF DELAWARE, ) ) Appellee. ) )
Submitted: October 6, 2014 Decided: January 28, 2015
Upon Appellant’s Appeal from the Industrial Accident Board’s Decision, AFFIRMED.
OPINION AND ORDER
William R. Peltz, Esquire, Kimmel, Carter, Roman, Peltz & O’Neill. P.A., 56 West Main Street, 4th Floor, Christiana, Delaware, 19702, Attorney for Appellant.
Francis X. Nardo, Esquire, Andrew M. Lukashunas, Esquire, Tybout, Redfearn & Pell. P.A., 750 Shipyard Dr., Suite 400, Wilmington, Delaware, 19801, Attorneys for Appellee.
BRADY, J.
1 I. INTRODUCTION
Appellant Stanford Fowler (“Appellant,” “Fowler”) appeals the decision of the Industrial
Accident Board (the “IAB,” the “Board”) denying him compensation for work injuries that he
allegedly suffered as a result of an incident on April 9, 2011. Fowler claims that he was injured
while working for Appellee State of Delaware (“Appellee,” “Employer”) at the Port of
Wilmington (the “Port”). The injuries allegedly occurred when Fowler intervened in an attempt
to stop a coworker’s out-of-control forklift. Shortly after his alleged injury, in 2011, Appellant
filed an initial Petition to Determine Compensation Due, which was subsequently withdrawn by
Appellant. 1 On April 8, 2013, Fowler filed the instant Petition to Determine Compensation Due
(“IAB Petition”). After a hearing on the merits (the “Hearing”), the Board determined that
Fowler failed to meet his burden of demonstrating that he suffered an injury or aggravation of an
injury as a result of the April 9, 2013 incident. In a decision dated December 2, 2013, the IAB
denied compensation to Fowler. 2
Following the IAB’s denial of benefits, Fowler filed the instant appeal in Superior Court.
Briefs were submitted, and the matter was received in Chambers on October 6, 2014. For the
reasons given below, the Court now AFFIRMS the decision of the IAB.
1 Transcript of IAB Hearing (“Hearing Transcript”) at 7. 2 Decision of the Industrial Accident Board, December 2, 2013 (“IAB Decision”).
2 II. FACTS AND PROCEDURAL BACKGROUND
A. Appellant’s Previous Accidents and the Instant Incident
Prior to the accident at issue, Appellant had been involved in a motor vehicle
accident in February 2010 3 and a separate work forklift incident in April 2010. 4 Appellant’s
testimony on the effects of the February 2010 motor vehicle accident was somewhat inconsistent.
At one point in the Hearing, Appellant testified that the injuries from the February 2010 accident
were to his left side, shoulders, and knee. 5 Later in the hearing, however, Appellant insisted that
these injuries were only on his left side. 6 When it was pointed out that the medical records
indicate injuries on both sides, Appellant revised his assessment to say that the injury was
“mainly” on his left side. 7 Appellant was treated by a chiropractor for his injuries from the 2010
motor vehicle accident. 8 While the chiropractor’s records indicate general treatment of
Appellant’s neck and back, Appellant maintained that it was only for pain in his left side. 9
As a result of the April 2010 forklift incident, Appellant was taken to the hospital.10
Appellant reported injuries to his back and shoulder “on [his] right side.” 11 Appellant was
deemed totally disabled from April to September 28, 2010 due to the April 2010 incident, and
Appellant received worker’s compensation. 12 Appellant was treated for his injuries by Dr.
Emmanuel Devotta until about October 2010, after which Appellant received no further
treatment until after the April 9, 2011 accident. 13
3 Hearing Transcript at 60. 4 Hearing Transcript at 5, 57. 5 Hearing Transcript at 60. 6 Hearing Transcript at 74. 7 Hearing Transcript at 76-77. 8 Hearing Transcript at 82-83. 9 Hearing Transcript at 83. 10 Hearing Transcript at 58. 11 Hearing Transcript at 58. 12 Hearing Transcript at 58, 85. 13 Hearing Transcript at 59.
3 On Saturday, April 9, 2011, Appellant was working as a forklift operator at the Port of
Wilmington. While Appellant was operating his own forklift, a coworker suffered a medical
emergency that caused the coworker to lose control of the forklift he was operating. 14 The
coworker’s forklift began spinning around with its forks in the air, creating a hazardous
situation. 15 Along with several other coworkers, Appellant attempted to intervene to stop the
rogue forklift. Appellant testified that he intentionally bumped the rogue forklift with his own
forklift in an attempt to stop it, but he was unable to do so. 16 Another coworker, identified as
“Rock,” was eventually able to stop the rogue forklift; and Milton Downs, another forklift
operator, removed the key. 17 After the incident, some of the workers involved were taken away
by the security guard so that they could receive medical attention. 18 It is unclear whether
Appellant was aware that the other workers had been taken away for medical treatment.
Appellant’s supervisor allegedly directed the remaining workers to “go back to work,” and
Appellant testified that he did not want to be insubordinate by not returning to work. 19 Appellant
testified that he was “feeling somewhat funny” after the incident, but he wanted to keep
working. 20 He decided to wait and see how he felt later. Appellant testified that he did not think
that work injuries needed to be reported immediately but that an employee could observe his
condition and report the injury at a later date if his condition did not improve. 21 Appellant
worked the rest of the day and then went home. 22
Appellant testified that when he woke the next morning, the pain was still there and was
14 Hearing Transcript at 4. 15 Hearing Transcript at 15. 16 Hearing Transcript at 52. 17 Hearing Transcript at 43. 18 Hearing Transcript at 44. 19 Hearing Transcript at 52, 63. 20 Hearing Transcript at 53. 21 Hearing Transcript at 62. 22 Hearing Transcript at 62.
4 getting worse. Appellant says he went into work and spoke to the manager around 6:45 a.m. as
the manager was handing out the morning’s assignments and explained that he was in pain.23
Appellant says that the manager acknowledged Appellant’s statement but gave Appellant an
assignment anyway. 24 Appellant testified that he then went to another supervisor and told him
that he would like to be examined because he had been in an accident. 25 Appellant was taken to
the hospital by a security guard that Sunday morning. At the hospital, Appellant was examined
and given pain medication. 26 Appellant testified that at the time he went to the hospital, he had
pain in the neck, low back, and shoulders, and he started feeling pain where he had experienced
it before due to his previous accidents in 2010. 27 Appellant reported that his back was worse
than the other areas. 28
Appellant followed up with Dr. Devotta on Monday, April 11, 2011. 29 Dr. Devotta
examined Appellant, prescribed medication, and took Appellant out of work for two weeks. 30
Appellant saw Dr. Devotta every couple months through the fall of 2011 and had chiropractic
treatment throughout the summer. 31 Appellant confirmed that his symptoms from the April 2011
forklift accident were similar to those from the 2010 work accident. 32
Appellant testified that he was able to go back to work around July 2011 but that he could
not work at the Port because he was restricted to “light duty” and/or because there was not
enough work available. 33 Appellant testified that he collected unemployment for at least some
23 Hearing Transcript at 53 24 Hearing Transcript at 54. 25 Hearing Transcript at 54. 26 Hearing Transcript at 54. 27 Hearing Transcript at 55. 28 Hearing Transcript at 55. 29 Hearing Transcript at 56. 30 Hearing Transcript at 56-57. 31 Hearing Transcript at 57. 32 Hearing Transcript at 98. 33 Hearing Transcript at 69.
5 time during the period between the 2011 incident and his filing of the instant IAB Petition. 34 It
is unclear from the IAB Decision or the Hearing Transcript when and if Appellant has worked at
the Port since the 2011 incident. 35 Appellant testified that he had also been in another motor
vehicle accident “a few weeks” prior to his testimony at the IAB Hearing on October 15, 2013
and that this accident also caused pain in his lower back, shoulders, legs, and neck. 36
B. The IAB Petition and the October 15, 2013 Hearing
On April 8, 2013, Fowler filed the instant IAB Petition, alleging “injuries to various areas
of the body” arising from the April 9, 2011 incident. A hearing was held on October 15, 2013.
Dr. Devotta testified by deposition on Appellant’s behalf. 37 Dr. Devotta testified that he first
treated Appellant on April 16, 2010, when Appellant was referred to him for a work-related
injury. 38 After an evaluation, Dr. Devotta diagnosed Appellant with “lumbar radiculopathy.”39
Appellant had a lumbar epidural injection in August 2010, which seemed to relieve his pain to
some extent. 40 Appellant’s last appointment related to the 2010 incident was around September
2010. 41 At this time, Appellant reported that he felt much better, and Dr. Devotta medically
released him. 42 Dr. Devotta testified that he did not see Appellant again until after the April
2011 incident. 43 At that time, Appellant reported pain in his low back, radiating down his legs—
34 Hearing Transcript at 69. 35 When asked if he is currently working with the Port, Appellant replied, “I work with the Port, for the Port [sic] but that at this time I chose not to go because there’s not much work there and we get unemployment so I stay home.” Hearing Transcript at 70. Opposing counsel asked, “All right, so even though if [sic] your number does come up you don’t go in because you don’t want to jeopardize your unemployment?” Hearing Transcript at 70. Appellant answered, “No, I have to go if my number is called, they don’t call a number.” Hearing Transcript at 70. 36 Hearing Transcript at 71. 37 Devotta Deposition, Exhibit D to Item 13, (“Devotta Depo.”) at 5. 38 Devotta Depo. at 5. 39 Devotta Depo. at 5. 40 Devotta Depo. at 5-6. 41 Devotta Depo. at 6. 42 Devotta Depo. at 6. 43 Devotta Depo. at 7.
6 specifically, his right leg. 44 Upon physical examination. Dr. Devotta observed that Appellant
had tenderness in his back at L4 and S1, which Devotta characterized as an exacerbation of the
injuries Appellant had suffered in the past. 45 Devotta said that, after the April 2011 incident,
Appellant had “lumbar disk protrusion at L4-L5 and L5-S1.” 46
Dr. Andrew J. Gelman examined Appellant on behalf of Employer on August 27, 2013.47
Dr. Gelman concluded that there was no objective evidence of an injury or exacerbation of a
previous injury due to the April 9, 2011 incident. 48 Gelman testified that his examination of
Appellant was “normal” and opined that, at most, Appellant had sustained soft tissue injury. 49
Gelman clarified that even the possible diagnosis of soft tissue injury was based entirely on
Appellant’s subjective reports of pain rather than objective evidence of injury. 50 Dr. Devotta
disagreed with Dr. Gelman’s conclusions that Appellant’s exam was normal and Appellant
merely had soft tissue injury. 51 However, Dr. Devotta clarified that he could not testify with
certainty about Appellant’s condition at the time of Dr. Gelman’s exam in August 2013 as
Devotta had not examined Appellant since August 2012. 52
Julius Cephas (“Cephas”), a coworker who was present at the April 9, 2011 incident,
testified on behalf of Appellant. 53 Cephas testified that he witnessed the incident take place, but
he acknowledged that the incident was confusing and everything happened very fast. 54 Cephas
was not sure what Appellant specifically did during the incident beyond that Appellant was one
44 Devotta Depo. at 8. 45 Devotta Depo. at 28. 46 Devotta Depo. at 12. 47 Gelman Deposition, Exhibit C to Item 13, (“Gelman Depo.”) at 5. 48 Gelman Depo. at 16. 49 Gelman Depo. at 20-21. 50 Gelman Depo. at 21. 51 Devotta Depo. at 14, 16. 52 Devotta Depo. at 15. 53 Hearing Transcript at 14. 54 Hearing Transcript at 25
7 of three or four workers trying to stop the rogue forklift. 55 Cephas says at one point that
Appellant was on foot and was trying to stop the rogue forklift by grabbing the keys. 56 At
another point, Cephas says that Appellant was inside his own forklift and was trying to stop the
rogue forklift by bumping it with the machine he was operating. 57 Finally, Cephas suggests that
Appellant did both of these things at different times during the incident. 58 Cephas testified that
while he thought that all of the men involved might have been hurt due to the dangerous nature
of the incident, Cephas did not personally observe Appellant limping or injured in any way
following the incident. 59
Milton Downs (“Downs”), another coworker, testified on behalf of Appellant. 60 Downs
said that he observed Appellant bump the rogue forklift twice with Appellant’s own forklift in an
effort to stop it. 61 Downs testified that Appellant told him that he was injured the next morning
at work. 62
John Stratis (“Stratis”), a field investigator with ICU Investigations, testified on behalf of
Employer. 63 Stratis videotaped Appellant on May 11, 2011, and the videotape was admitted as
evidence by the Board. 64 Appellant confirmed that the person in the video was in fact Appellant
helping his elderly father with a home improvement project. 65 Stratis described what occurred in
the relevant portions of the footage. Appellant bent at the waist and used a sledgehammer to
55 Hearing Transcript at 25-26. 56 Hearing Transcript at 25-26. 57 Hearing Transcript at 32. 58 Hearing Transcript at 32. 59 Hearing Transcript at 22-23. 60 Hearing Transcript at 37. 61 Hearing Transcript at 38-39. 62 Hearing Transcript at 39. 63 Hearing Transcript at 112. 64 IAB Decision at 17. 65 Hearing Transcript at 86.
8 break up concrete. 66 Appellant carried a 2x4 piece of lumber and dragged a bag of quick-dry
concrete. 67 Appellant picked up the bag and poured the contents into a bucket. 68 Appellant then
lifted the bucket and poured the mixture into the ground. 69 Stratis testified that he did not
observe Appellant limping or any other obvious signs of injury. 70 Appellant objected to the
introduction of the videotape and Stratis’ testimony on the grounds that Stratis himself was not
licensed in Delaware as a private investigator even through his employer ICU Investigations is
licensed in Delaware. 71 The Board ultimately overruled this objection and permitted the
introduction of the videotape and Stratis’ testimony. 72 The Board found that the evidence was
probative and not prejudicial to Appellant as Appellant had admitted that he was the person in
the video and Appellant’s counsel had so stipulated. 73
C. The Board’s Findings
The Board found that Appellant failed to prove by a preponderance of the evidence that
he had suffered injury or aggregation of an existing injury due to the April 9, 2011 incident.74
The Board found that Appellant failed to demonstrate that the April 9, 2011 incident was the
“but for” cause of his alleged injuries/aggravation of existing injuries. 75 The Board found Dr.
Devotta’s testimony to be completely unpersuasive, finding that it “reflected a complete lack of
66 Hearing Transcript at 120. 67 Hearing Transcript at 120. 68 Hearing Transcript at 120. 69 Hearing Transcript at 123-124. 70 Hearing Transcript at 127. 71 Hearing Transcript at 114. 72 IAB Decision at 17, n. 11. The Board cited Board Rule 14(c), which gives the IAB discretion to admit evidence that, in the Board’s opinion, “possesses any probative value commonly accepted by reasonably prudent persons in the conduct of their affairs,” even if such evidence would not be admissible under the Rules of Evidence applicable to a proceeding in Superior Court. 73 IAB Decision at 17, n.11. 74 IAB Decision at 22. 75 IAB Decision at 23.
9 understanding of the events surrounding the incident in question.” 76 The IAB found Dr.
Devotta’s testimony on causation to be “largely uninformed, confused at times with the prior
April 2010 incident[,] and predominately based on [Appellant’s] own conclusion that he had
suffered a ‘reoccurrence’ of all of the injuries he had suffered in his prior forklift accident.” 77
The Board gave credence to Dr. Gelman’s testimony that there appeared to be no real
objective change in Appellant’s condition after the more recent forklift incident. 78 The Board
accepted Dr. Gelman’s opinion that Appellant’s diagnosis in relation to the present incident was
based on Appellant’s subjective complaints and was not distinguishable from Appellant’s
preexisting conditions. 79
The Board found that Appellant was not credible regarding the April 9, 2011 incident
itself or his actions in the aftermath of the incident. 80 The Board noted that Appellant “was very
vague about what had happened and did not put forth any theory of how each of the many body
parts he alleges were injured were actually injured.” 81 The Board noted that Appellant provided
“little or no testimony… indicating anything actually happening to [Appellant’s] body during
this incident.” 82 Considering Appellant’s allegations that he received injuries to multiple body
parts, the IAB found it “strange” that Appellant provided much detail concerning what happened
with regard to the rogue forklift operator but did not explain how and why he personally was
injured. 83 Regarding Appellant’s actions after the incident, the Board “did not find persuasive
that [Appellant] did not know the other workers involved in the incident had gone to the hospital
or that he was injured but felt he should just return to work anyway to avoid being
76 IAB Decision at 23. 77 IAB Decision at 23. 78 IAB Decision at 23. 79 IAB Decision at 24. 80 IAB Decision at 24. 81 IAB Decision at 24. 82 IAB Decision at 24. 83 IAB Decision at 24.
10 insubordinate.” 84 The Board did not believe Appellant’s testimony that he did not think that he
needed to report a work injury immediately, given that Appellant had gone through the process
for his previous work-related injury the year before. 85
The Board also found Appellant’s testimony concerning his symptoms questionable.
About a month after the incident, at the same time that Appellant was reporting “unbearable
pain,” the video was taken showing Appellant performing strenuous labor with concrete. 86 The
Board found that Appellant’s testimony reflected that he had listed many of the body parts as
injured in his petition “merely because [Appellant] considered [the present incident] to be a
‘recurrence’ of his prior injuries.” 87 Appellant testified that he was already medicating for his
prior injuries at the time of the instant accident, and the Board found that Appellant’s alleged
injuries from the instant accident could not be separated from his preexisting symptoms. 88 The
Board did not find Appellant’s testimony credible, “which was problematic, especially given Dr.
Devotta’s heavy reliance on Claimant’s subjective history and complaints in rendering his
opinion on causation.” 89 On the basis of all of these findings, the Board denied Appellant’s
petition.
III. PARTIES’ CONTENTIONS
Appellant advances three grounds on which he argues the IAB decision should be
reversed. First, Appellant contends that the Board’s decision to admit the video recorded by a
investigator not licensed in Delaware constituted reversible error. Second, Appellant contends
84 IAB Decision at 24. 85 IAB Decision at 24-25. 86 IAB Decision at 25. 87 IAB Decision at 25. 88 IAB Decision at 25-26. 89 IAB Decision at 26.
11 that the Board’s decision that there was no objective finding of injury was not based on
substantial evidence in the record. Third, Appellant argues that the Board erred as a matter of
law in applying a heightened standard of proof. 90
In support of his first argument, Appellant cites 24 Del. C. §1303, which proscribes
penalties for persons who engage in the business of a private investigator without a Delaware
license. 91 Stratis was not licensed in Delaware as a private investigator at the time he
investigated Appellant and recorded the video footage of Appellant working with concrete.
Appellant argues that the licensing requirement precludes the introduction of evidence or
testimony from unlicensed investigators as a matter of public policy. Appellant argues that the
purpose of the licensing law is to protect the people of Delaware from invasions of privacy by
unlicensed persons. 92 Appellant further argues that it would diminish the credibility of testimony
from a private investigator were the licensing requirement not strictly followed; “[a]nyone could
then get on the stand and claim to be a private investigator or an expert in that field, which would
diminish the value of the judicial system and what it means to be a private investigator.”93
Appellant cites an Ohio case involving a “nearly identical” statute, where the appellate court held
that “the trial court erred in allowing the testimony of two defense expert witnesses who were not
licensed in Ohio as private investigators and whose testimony was based on an investigation
conducted in contravention of [the licensing statute].” 94
Appellant further argues that there was substantial evidence submitted showing that
Appellant did sustain injuries in the April 9, 2011 accident and that the IAB finding of no
90 Opening Brief, Item 18. 91 Opening Brief, Item 13, at 9. 24 Del. C. §1303 references 24 Del. C. §1329, which provides, “No person shall engage in the business of a private investigator…without first obtaining a license from the Professional Licensing Section, Division of State Police.” 92 Opening Brief, Item 13, at 10. 93 Opening Brief, Item 13, at 10. 94 Opening Brief, Item 13, at 10 (quoting Donegal Mutual Ins. Co. v. White Consol. Indus., 795 N.E.2d 133 (Ohio Ct. App. 2003)).
12 objective injury was not supported by the evidence. 95 Specifically, Appellant cites testimony of
Dr. Gelman describing the report of the emergency room physician who treated Appellant the
day after the accident (diagnosing Appellant with acute low back strain and right hip stain and
excusing Appellant from work for one day); 96 and the report of Dr. Covington, who examined
Appellant on behalf of employer a few days after the April 9, 2011 incident (reporting, in a
section titled “objective,” symptoms including tenderness of paraspinal muscles lateral to the L4-
5”). 97 Appellant argues that the Board erred as a matter of law in finding no objective evidence
of injury when there clearly was this objective evidence.
Finally, Appellant argues that the Board applied the wrong standard of proof concerning
causation of Appellant’s injuries. 98 Appellant contends that while a personal injury action at
court requires the plaintiff to show that the accident caused the injury “by reasonable medical
probability,” the standard is lowered in proceedings before the IAB. 99 Appellant argues that in
an IAB hearing, “[m]edical experts do not need to believe that there is a probability that the
trauma caused the injury, so long as it is more than just a possibility.” 100 Appellant maintains
that it is sufficient that the medical expert find that the injury is consistent with the mechanism of
injury described by the patient. 101 Appellant argues this is especially true “where the injury
occurred directly and uninterruptedly after the trauma.” 102 Appellant maintains that he produced
“sufficient evidence to show that his injuries are consistent with the trauma from the accident”
95 Opening Brief, Item 13, at 16. 96 Opening Brief, Item 13, at 16 (citing Exhibit C at 38). 97 Opening Brief, Item 13, at 16 (citing Exhibit C at 39-40). 98 Opening Brief, Item 13, at 18. 99 Opening Brief, Item 13, at 18 (citing Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965)). 100 Opening Brief, Item 13, at 18. 101 Opening Brief, Item 13, at 19 (citing Happy Harry’s Discount Drugs v. Soltis, 2003 WL 1903775, *6 (Del. Super. Ct. Mar. 21, 2003)). 102 Opening Brief, Item 13, at 18 (quoting General Motors Corp. v. Freeman, 164 A.2d 686, 688-89 (Del. 1960)).
13 even if he could not describe with particularity how each injury occurred. 103 None of the
medical experts testified that Appellant’s symptoms were inconsistent with the alleged trauma. 104
Employer contends that the Board properly admitted the video evidence and gave the
video evidence the weight it was due. 105 Employer argues that while the statute sets forth
penalities for unauthorized private investigators, the statute is “wholly silent as to the impact of
licensure on the admissibility of testimony.” 106 Employer argues that the Ohio case cited by
Appellant, Donegal Mut. Ins. Co. v. White Consol. Indus., is inapplicable to the instant case. 107
Employer disputes Appellant’s characterization of the Ohio statute as “nearly identical” and
argues that the case cited by Appellant only addressed the narrow issue of “whether a fire
investigator was allowed to render a causation opinion regarding the origin of a fire.”108
Employer argues that the Donegal investigator’s opinion on causation, unlike the testimony of
the investigator in the instant case regarding the taking of the video, concerned “a far more
crucial element of a case and one where the State would have a rational interest in regulating
‘experts’ and their qualifications to render a causative opinion in a legal proceeding.”109
Employer also argues that Appellant waived his objection to the admission of the video by
addressing the existence of the footage during Appellant’s opening remarks without any
objection to the same. 110 Further, Employer argues that upon cross-examination Appellant
acknowledged the actions depicted in the video, admitted that he was the individual in the
footage, and explained the impact of the activities in the video on his symptoms. 111 Employer
103 Opening Brief, Item 13, at 20. 104 Opening Brief, Item 13, at 21. 105 Answering Brief, Item 15, at 13. 106 Answering Brief, Item 15, at 14 (citing 24 Del. C. §1301 et seq.). 107 Answering Brief, Item 15, at 15 (citing Donegal, 795 N.E. 133). 108 Answering Brief, Item 15, at 15 109 Answering Brief, Item, 15, at 15. 110 Answering Brief, Item 15, at 13. 111 Answering Brief, Item 15, at 13.
14 argues that because Appellant authenticated the contents of the video footage, any objection from
Appellant thereafter was untimely. 112
Employer further argues that the Board correctly concluded that Appellant did not sustain
his burden of proof with respect to causation. 113 Employer contends that the Board’s decision
was amply supported solely by examining Dr. Devotta’s testimony—specifically, that Dr.
Devotta was unaware of the precise mechanism of injury, could not confirm whether Appellant
was involved in a collision or a fall, and was uninformed with regard to Appellant’s medical
history and 2010 motor vehicle accident. 114
In response to Appellant’s final argument, Employer argues that the Board applied the
appropriate standard of proof. 115 Employer argues that the Board did not hold Appellant to a
higher standard, but rejected Appellant’s theory as to the causation of his symptoms “not because
[Appellant] could not reach a standard of medical probability, but because neither [Appellant’s]
testimony, nor his expert’s[,] was persuasive to the Board.” 116
IV. STANDARD OF REVIEW
The scope of this Court’s review of a decision by the IAB is limited to determining
whether the IAB decision is supported by substantial evidence 117 and free from legal error. 118
Substantial evidence consists of “more than a scintilla but less than a preponderance,” 119 and
must be “such relevant evidence as a reasonable mind might accept as adequate to support a
112 Answering Brief, Item 15, at 13. 113 Answering Brief, Item 15, at 19 114 Answering Brief, Item 15, at 19. 115 Answering Brief, Item 15, at 22. 116 Answering Brief, Item 15, at 22. 117 General Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del.1960). 118 Boone v. Syab Servs./Capitol Nursing, 2012 WL 3861059, *1 (Del. Super. Ct. Aug. 23, 2012). 119 Olney v. Cooch, 425 A2d 610, 614 (Del. 1981).
15 conclusion.” 120 Freedom from legal error exists when “the [Industrial Accident] Board properly
applied the relevant legal principles.” 121 In reviewing the record for substantial evidence, this
Court will consider the record in the light most favorable to the prevailing party. 122 Unless no
substantial evidence supports a decision by the IAB, this Court must uphold its decision.123 This
Court must defer to the IAB’s expertise, 124 and decline to weigh the evidence, resolve credibility
questions, or make its own factual findings. 125
V. DISCUSSION
A. The Video Evidence and Licensing Issue
Delaware courts have repeatedly held that evidentiary rulings, whether by a trial court or
an administrative board, are reviewed for an abuse of discretion. 126 “An administrative board
abuses its discretion in admitting or excluding witness testimony where its decision exceeds the
bounds of reason given the circumstances or where rules of law or practice have been ignored so
as to produce injustice.” 127
During the IAB hearing, Appellant confirmed that he was the person in the video and that
the events depicted actually took place. Unlike in Donegal, where the investigator’s opinion was
relied upon to establish a crucial element of the case, the investigator in the instant case simply
explained the video that Appellant himself authenticated. 128 Appellant makes the public policy
argument that allowing a video from an unlicensed investigator into evidence will give an
120 Id. 121 State v. Kasi, 1994 WL 637028, at *4 (Del. Super. Ct. Mar. 11, 1994). 122 Boone, 2012 WL 3861059, at *1. 123 Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009). 124 Noel-Liszkiewics v. LA-Z-BOY, Inc., 2012 WL 4762114, at *8 (Del. Super. Ct. Oct. 3, 2012). 125 Id. 126 See, e.g., Wal-Mart Stores, Inc. v. Clough, 712 A.2d 476 (Del. 1998). 127 Bolden v. Kraft Foods, 2003 WL 3526324, *2 (Del. Dec. 21, 2005). 128 Donegal, 795 N.E.2d 133.
16 incentive to private citizens to invade each other’s privacy. Appellant argues that absent
licensure of private investigators, “people would just take their smart phones out of their
pocket[s] and record another’s personal activities.” 129 In violating this public policy, Appellant
contends that the Board exceeded the bounds of reason in permitting the video evidence. The
Court finds no such abuse of discretion. Video evidence from a lay person, even if obtained
illegally, can be introduced as evidence in court so long as it is relevant. 130 Thus, Appellant’s
argument that the Board’s ruling will create incentives to engage in illegal surveillance is
uncompelling. Regardless of whether or not the investigator’s actions in this case were illegal,
the Board acted reasonably in permitting the evidence. It was independently authenticated by
Appellant, case law supports the admission of the evidence, and there is no compelling showing
that admitting such evidence creates an incentive to violate the law in contravention of public
policy.
B. The Evidence in the Record
Appellant argues that the Board erred in finding against him because there was
substantial evidence in the record that Appellant had an “objective” injury. 131 Appellant’s
reasoning is doubly flawed. First, Appellant misconstrues the present standard of review. This
Court is charged with deciding not whether there is substantial evidence to support Appellant’s
conclusion, but rather whether there is substantial evidence to support the Board’s finding.
129 Opening Brief, Item 13, at 10. 130 While the Court finds no Delaware case precisely on point, there is a line of Delaware child custody cases in which wrongfully obtained evidence was deemed admissible. See, e.g., Aladino R.T. v. Brenda W., 1993 WL. 331843 (Del. Fam. Ct. Mar.23, 1993); G.J.G. v. L.K.A., 2006 WL 2389340 (Del. Fam. Ct. Apr. 11, 2006). Other jurisdictions that have dealt explicitly with the question of whether relevant, wrongfully obtained evidence is admissible in civil cases have routinely found such evidence admissible. See, e.g., United States v. Janis, 428 U.S. 433, 454 (1976); Herndon v. Albert, 713 S.W.2d 46, 47 (Mo. Ct. App. 1986); State Farm Fire & Cas. Co. v. Madden, 451 S.E.2d 721, 726 (W. Va. 1994). 131 Opening Brief, Item 13, at 16.
17 There may be “substantial evidence” on both sides. Thus, Appellant’s contention that there was
substantial evidence in support of his claim misses the mark; what is relevant is that there is
substantial evidence on the basis of which the Board reasonably found that Appellant did not
sustain a compensable injury due to the April 9, 2011 forklift incident. In this case, a reasonable
Board could have found the testimony of Employer’s medical experts more credible than that of
Appellant’s experts. Similarly, a reasonable Board could have found the video evidence of
Appellant’s physical capabilities more compelling than the reports of doctors who examined
Appellant after the incident and found injury.
Second, all of the evidence cited by Appellant is evidence that he had some injury. Even
if the Board accepted that Appellant was injured, Appellant would still have to establish that the
injury and/or exacerbation was caused by the April 9, 2011 incident. The Board doubted this
causal connection. 132 A reasonable Board could have found that even if there was sufficient
evidence that Appellant was injured, there was not sufficient evidence that Appellant’s injuries
were due to the April 9, 2011 incident as opposed to an earlier forklift incident, two automobile
accidents, or some other cause. Because Appellant admitted that he had been in three other
accidents in addition to the incident in question (the 2010 motor vehicle accident, the 2010
forklift accident, and the more recent motor vehicle accident) and that all of these accidents had
caused similar symptoms concerning his neck, shoulders, and/or back, a reasonable Board could
find insufficient evidence that the reported injuries were caused by the April 9, 2011 incident.
Because Appellant’s testimony concerning his injuries was often vague and perhaps conflicting,
a reasonable Board could have found him not to be credible.
132 See, e.g., IAB Decision at 25 (questioning whether symptoms that Appellant reported to Dr. Devotta were “simply part and parcel of [Appellant’s] pre-existing condition” and observing that the evidence indicates that Appellant had “an ongoing condition in relation to the February 2010 [motor vehicle accident]).
18 C. The Standard of Proof
Appellant contends that IAB proceedings invoke a lower standard of proof than is
required in personal injury actions at court. 133 Specifically, Appellant’s theory is that IAB
proceedings require the claimant to show only mere consistency with the mechanism of injury
proposed by the claimant, whereas actions at court require a showing of “reasonable medical
probability.” 134 Since there was no evidence that Appellant’s injuries were inconsistent with his
alleged mechanism of injury, Appellant argues that the Board must find causation. 135 Appellant
cites three cases in support of his proposition that that the lower standard applies in IAB
proceedings: Air Mod Corp. v. Newton, 215 A.2d 434 (Del. 1965); Happy Harry’s Discount
Drugs v. Soltis, 2003 WL 1903775 (Del. Super. Ct. Mar. 21, 2003), and General Motors Corp. v.
Freeman, 164 A.2d 686 (Del.1960); but Appellant has misstated the law as defined in these
cases. All three of these cases are situations in which employers appealed the IAB’s grant of
compensation to the claimant. On appeal, the courts found that the IAB’s finding of a
compensable injury was not to be disturbed as the Board’s finding in each case was supported by
substantial evidence. There is not a lower burden of proof placed on the claimant in an IAB
matter; rather, there is a higher burden placed upon the court in overturning an IAB decision.
The claimant still must prove causation by reasonable probability, but the Board is the judge of
whether this burden has been met. The court will only overturn the Board’s decision if the Board
“acts arbitrarily or capriciously” or the Board’s conclusion “exceeds the bounds of reason.” 136
The Board acted within its authority as the trier of fact in finding Employer’s experts
133 Opening Brief, Item 13, at 18. 134 Opening Brief, Item 13, at 18. 135 Opening Brief, Item 13, at 19. 136 Delaware Transit Corp. v. Roane, 2011 WL 3793450, *5 (Del. Super. Ct. Aug. 24, 2011) (quoting Straley v. Advanced Staffing, Inc., 2009 WL 1228572, *2 (Del .Super. Ct. Apr. 30, 2009)).
19 more credible than Appellant’s experts and in finding Appellant’s own testimony not to be
credible. As the Board’s findings are supported by substantial evidence and free from legal
error, this Court must affirm.
VI. CONCLUSION
For the foregoing reasons, the decision of the IAB is hereby AFFIRMED.
IT IS SO ORDERED.
__________/s/______________________ M. JANE BRADY Superior Court Judge