             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filed an initial Petition to Determine Compensation Due, which was subsequently withdrawn by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]).

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                                        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




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