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 
2

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 
3

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 
4

“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.
5

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.
6

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)).
7

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 recreation 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).
8

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.).
9

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