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
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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