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filed an initial Petition to Determine Compensation Due, which was subsequently withdrawn by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

                                            20


325 P.2d 1056 (1958)
J.C. PENNEY COMPANY, a Corporation, Plaintiff in Error,
v.
Delilah CAMPBELL, Defendant in Error.
No. 37038.
Supreme Court of Oklahoma.
May 6, 1958.
Rehearing Denied June 3, 1958.
Horsley, Epton & Culp, Wewoka, Dwight Tolle, Okemah, for plaintiff in error.
J.C. Daugherty, Hugh M. Sandlin, Holdenville, for defendant in error.
*1057 JOHNSON, Justice.
This is an appeal by J.C. Penney Co., a corporation, from a judgment rendered against it in the District Court of Okfuskee County in favor of Delilah Campbell for personal injuries received in falling on the floor in defendant's store, which injury is alleged to have been caused by the negligence of defendant.
The plaintiff alleged in her petition that while shopping in defendant's store she slipped and fell to the floor, causing her serious and permanent injury, which was caused by the negligence of defendant in *1058 that the floor where she fell was slick with oil or waxy substances which caused the floor to be slick, resulting in her slipping and falling; that the substances applied on the floor were not applied in the proper manner, but were left in large quantities at the place where plaintiff fell, all of which was known to the defendant or its employees, or could have been known with the exercise of reasonable care; that as a result of the fall she suffered a fracture of her shoulder and forearm and incurred hospital and doctor bills, suffered pain and permanent injury and prayed judgment for the sum of $3,000.
The defendant answered, admitting that it was a corporation licensed to transact business in this state, and that it operated a store in Henryetta; that plaintiff had an accident, but denied that it was caused by its negligence.
The trial resulted in a jury verdict in favor of the plaintiff which was approved by the trial court, and judgment rendered accordingly.
The defendant for reversal contends that there was no evidence of primary negligence on the part of the defendant; that the court erred in the admission of incompetent evidence over defendant's objections; and that the court erred in giving Instructions 9 and 10 and in refusing defendant's requested Instructions numbers 1 and 2, and in failing to instruct the jury on the defendant's theory of the case.
In considering defendant's first contention, we are governed by the long-established rule that in an action of legal cognizance tried to a jury, the verdict and judgment of the trial court will not be disturbed on appeal because of insufficiency of the evidence, if there is any evidence reasonably tending to support such judgment. Dippel v. Murr, Okl., 296 P.2d 169.
Defendant to sustain its contention that there was no showing of primary negligence cites and relies upon numerous cases, among which are: Whitehead v. Erle P. Halliburton, Inc., 190 Okl. 120, 121 P.2d 581; Tweed v. First Nat. Bldg. Corporation, 203 Okl. 31, 218 P.2d 356; Sears, Roebuck & Co. v. Johnson, 10 Cir., 91 F.2d 332; F.W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970, and Owen v. Kitterman, 178 Okl. 483, 62 P.2d 1193.
The plaintiff contends that none of the cases cited by the defendant are applicable to the facts in the instant case, and contends that the factual situation herein is so nearly parallel with the facts in the case of Safeway Stores v. Whitehead, 190 Okl. 464, 125 P.2d 194, that the rule announced therein is controlling in the instant case.
After a careful consideration of the numerous cases cited by the defendant, we conclude that the contention of the plaintiff has merit, and that the Safeway Stores v. Whitehead case, supra, is controlling authority under the facts and factual circumstances in the case at bar. This conclusion requires a narration of and an appraisal of the evidence on the issue of primary negligence; keeping in mind the rule announced in Safeway Stores v. Whitehead, supra, that a storekeeper owes customers the duty to exercise ordinary care to keep aisles, passageways and such other parts of the premises as are ordinarily used by customers in a reasonably safe condition, and to warn customers of dangerous conditions upon premises which are known or which reasonably should be known to the storekeeper, but not to customers; that a storekeeper is not an insurer; and that the question of whether, in a given case, the storekeeper has been negligent in respect to his duty is usually a question of fact for the jury.
The evidence in this case reveals that the plaintiff went into the defendant's place of business; while there in one of their main aisles slipped on a slick place in the floor and fell. There is no question but what the floor was slick, and on the main aisle in defendant's place of business, as is shown by the following questions propounded to plaintiff:
"Q. What happened to you there? Just tell this jury. A. Well, I just stepped on a slick floor, and my foot *1059 slipped just like you would step on ice, and down I went.
"Q. Was any debris or paper or banana peeling there? A. No, about all I could tell you about was the floor was slick. When I went to get up with my right hand I could feel the floor felt wet and damp and felt slick, so that is all I can tell you."
The companion of the plaintiff who was present at the time the plaintiff slipped and fell testified that the floor was slick. The following questions were asked and answered by her:
"Q. All right, did you view the place where she had fallen? A. Yes, I viewed it.
"Q. Tell the jury what you saw. A. Well, it was just slick, and you could see where she had fell; slick.
"Q. Did you see any marks? A. Yes.
"Q. What kind? A. Where her foot had slipped there."
A Mrs. Carter who had been employed about twenty-seven years as a janitress and was experienced in the use of Myco-Sheen, which was admittedly the substance used by the defendant in cleaning and shining the store floor, was called as a witness for plaintiff. She was asked:
"Q. Well, now, is this substance, after it's applied on the floor, if it isn't taken care of, is it slippery? A. It's slippery if you don't take care of it.
"Q. All right, what happens to it, Mrs. Carter, from your experience, where it isn't properly taken care of? A. Well, it is just really slippery because a lot of times if you miss a place  you may miss a little place or something in it, and it's naturally slippery because if you don't get every spot that is in there, and maybe you will leave just a little place about an inch or two inches, well, if you hit it, it's slippery, but if you clean it proper, well, then it isn't slippery."
The plaintiff testified concerning the condition of the store floor when she entered it for shopping purposes, as follows:
"Q. And that's the reason you think it was slick  because you fell? Now isn't that a fact? A. Well, I noticed when I went in the door that the floor had been cleaned; but, after all, you know, you go in lots of places where the floors look oily, but you think nothing about it."
The above evidence was in conflict with the testimony of the defendant that the floor had been cleaned and Myco-Sheen applied twelve days before the accident, and that the floor was not oily or slippery or slick. Under this conflicting evidence the jury was justified in concluding that defendant's store floor had been cleaned recently enough that it was observable by an ordinary person walking into the store, and was slippery and dangerous, which fact reasonably should have been known to the storekeeper.
Defendant's contention that the court erred in the admission of incompetent evidence over its objections is upon a careful examination of the purportedly objectionable evidence found to be without merit. Likewise, the contentions of error concerning the instructions are without merit. An examination of the instructions given, and the ones refused, demonstrate that the trial court had performed its function in giving instructions which covered the defendant's theory of the case and fairly and amply presented the case to the jury.
The judgment is affirmed.
WELCH, C.J., CORN, V.C.J., and BLACKBIRD and JACKSON, JJ., concur.
HALLEY and WILLIAMS, JJ., dissent.
WILLIAMS, Justice (dissenting).
Defendant, appealing, says the trial court made serious errors, (1), in overruling defendant's demurrer to plaintiff's evidence, and its motion for a new trial; (2), in *1060 admitting opinion evidence of a janitress as an alleged expert without proof of the facts upon which such opinion testimony might properly be based; (3), in inferentially advising the jury she was an "expert" by instructing as to consideration of the evidence of expert witnesses; in instructing the jury as to consideration of such matters as plaintiff's "earning capacity" and other matters when neither such nor her life expectancy had been mentioned in plaintiff's proof, and, (4), in failing to instruct the jury on material issues, in failing to instruct the jury that plaintiff was limited to the charge of negligence alleged in the petition, and in failing to instruct on defendant's theory of the case.
With reference to defendant's second proposition, the argument is made that the witness Carter was asked, "Q.  and if they didn't get it all up, what would be the condition of that spot that they didn't get up after two weeks, from the experience you have had?", and that she was permitted to answer over objection, "A. Well, we usually taken care of our floor and we never had that trouble. But naturally, if oil would stay on the floor, which it has got an oily substance, and if it would stay on the floor, it would be slippery; but we just never did  we usually always cleaned our floors; and that way we just never had any trouble with it." Further argument of similar tenor with reference to similar evidence is advanced.
I believe defendant's position is well taken. The trial court admitted such testimony from the named witness, who was testifying out of order, with the understanding further testimony (presumably tending to establish that someone of defendant's employees left an excess of oil or waxy substances on the floor) would be adduced. Such evidence was not forthcoming.
In 32 C.J.S. Evidence § 552, p. 359, appears the statement that, "As a rule hypothetical questions must be based on facts as to which there is such evidence that a jury might reasonably find they are established * * *."
As was said by this court in the case of Mead Bros., Inc., v. Watts, 135 Okl. 23, 273 P. 207:
"Hypothetical questions must be based upon facts as to which there is such evidence that a jury might reasonably find that they are established * * *."
In Oklahoma Gas & Electric Co. v. Oliphant, 172 Okl. 635, 45 P.2d 1077, we said almost identically the same thing. See also syllabus paragraph 4 of Cities Service Gas Co. v. Eggers, 186 Okl. 466, 98 P.2d 1114, 1115, 126 A.L.R. 1278, wherein we said:
"When attempting to establish damages caused to a tract of land by the tortious acts of the defendant, it is error to assume, in a hypothetical question, material facts alleged but not theretofore established by competent evidence, but if on cross-examination the hypothetical question is properly stated, the error is cured."
No cure was effected in the trial of this case. As the facts assumed for the purpose of the purported expert witness' testimony went to the very foundation of plaintiff's case and as no evidence of such facts was introduced, it appears the jury could have been actuated, in arriving at its verdict, only by belief in the actuality of the facts assumed, for purposes of her testimony, to exist but never proven.
To my mind defendant has shown itself entitled to a new trial. As in such a new trial other alleged errors complained of would probably not again occur, further treatment of defendant's other propositions in this dissenting opinion is not deemed necessary.
I respectfully dissent.


473 So.2d 514 (1985)
The GOODYEAR TIRE & RUBBER COMPANY
v.
Ray V. BRADLEY, N.C. Askew, W.H. Daughdrill, G.A. McCall, J.D. Bradford, B.L. Salser, R. Fomby, and B.W. Williams.
Civ. 4589.
Court of Civil Appeals of Alabama.
May 1, 1985.
Rehearing Denied June 5, 1985.
*515 James D. Pruett of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.
Donald R. Rhea and Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellees.
BRADLEY, Judge.
This is a workmen's compensation case.
Employees filed a consolidated claim for workmen's compensation benefits before the trial court. The trial court entered a judgment for all of the employees, finding that each employee had suffered a one hundred percent temporary total vocational impairment and loss of ability to earn from March 8 through March 14. Employer appeals.
*516 The standard of review in workmen's compensation cases is whether there is any legal evidence to support the trial court's findings. We consider neither the weight of the evidence nor the propriety of the trial court's findings. Stebbins Engineering & Manufacturing Co. v. White, 457 So.2d 425 (Ala.Civ.App.1984).
The record on appeal reveals the following:
Employees work for The Goodyear Tire & Rubber Company. Employees were injured within the line and scope of their employment. Each employee was then placed on "light duty status" during the week of March 1, 1982. It is unclear whether employees received their full wages during this week. Apparently, under union contract, the employees were to receive ninety percent of normal pay during their light duty period.
During the week of March 8, 1982 through March 14, 1982, employer shut down its plant for economic reasons. All Goodyear employees were laid off during this week. The parties agree that employees would have been on light duty status during the week of March 8 through March 14 had there not been an economic shutdown.
After an ore tenus hearing the trial court found that employees suffered a one hundred percent loss of ability to earn and temporary total vocational impairment from March 8 through March 14, and awarded them temporary total disability benefits.
On appeal, employer contends that there was insufficient evidence to support the trial court's finding that employees were temporarily totally disabled during the week of March 8th. We disagree.
Our courts have found the following language persuasive:
"An employe who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled." Lee v. Minneapolis Street Railway Co., 230 Minn. 315, 41 N.W.2d 433 (1950) (quoted in Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958)). Moreover, this court has held that temporary total disability applies to the healing period during which the employee is recovering and unable to perform his ordinary work duties, and the healing period ends when maximum recovery is reached. See Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974); 2 A. Larson, The Law of Workmen's Compensation § 57.12 (1983).
Temporary total disability is usually established by evidence of wage loss. Defense Ordinance Corp. v. England, supra. However, it has been held that where an employee has not reached maximum recovery, works only part time, and his disability prevents full-time employment, temporary total disability benefits could be paid. T G & Y Stores Co. v. Higdon, 437 So.2d 1035 (Ala.Civ.App.1983).
Employer argues that because employees were engaged in "light work" they were manifestly not totally disabled. However, total disability does not mean absolute helplessness or complete physical disability, but instead, means an inability to perform the work of one's trade or obtain reasonable gainful employment. Carroll Construction Co. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977).
Dr. Stewart, a specialist in the field of vocational rehabilitation, testified that an employee is placed on "light duty status" when the employee has a medically documented body function problem that prevents him from performing his customary job. Generally, an employee in such status is working at a reduced physical demand level when compared to the physical demands of their normal job. Lindsey Elsberry, employee benefit representative for the United Rubber Workers Union, testified that the policy of the employer was to put injured employees back to work as soon as possible to keep sick leave and insurance rates down.
*517 The parties stipulated at trial that light duty implies at least a partial degree of vocational impairment. Dr. Stewart stated that this vocational impairment affected employees' ability to compete in the labor market. He believed that there was not a stable market for the employees given their injuries and that only employer (Goodyear) would be willing to hire employees for the limited work that they were able to perform. Thus, when employees were laid off, they were unable to earn any wages during this period because of their physical injuries. Employees were not completely healed during this period or they would have been back on regular duty. Nor is it disputed that employees were not completely healed during the week of the shutdown since they would have been on light duty during this week. Consequently, employees were still in the healing process during the week of March 8 through March 14 and had not reached maximum recovery from their job-related injuries. Thus, employees suffered a wage loss for the week in question as a result of being in a light duty work status. The trial court was not in error in finding employees temporarily totally disabled during the week of March 8.
Employer, however, attacks Dr. Stewart's testimony, arguing that the doctor was without a sufficient basis for forming any opinion of the degree of employees' occupational disability.
Although Dr. Stewart did not personally interview the employees, he did review employees' medical records and was familiar with general employment conditions in the region. He was thus able to form reasoned conclusions based on this information and his expert knowledge. We cannot say that there was no basis for Dr. Stewart's conclusions. In addition, we note that employer did not object to Dr. Stewart's testimony during the trial and stipulated that the doctor was an expert in the field of vocational rehabilitation. Even though we find that the trial court could have properly relied on Dr. Stewart's testimony, the trial court was not bound to accept the expert's testimony.
As a final ground for reversal, employer contends that the trial court erred in awarding benefits because there was no causal connection between employees' injuries and their temporary loss of ability to earn.
Employees, unquestionably, would have been entitled to compensation benefits for the days immediately following their injuries when they were unable to work and might have continued to be so entitled while on "light duty status." See T G & Y Stores Co. v. Higdon, supra; Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215 (1975). Thus, we see no reason why employees may not be entitled to receive temporary total benefits in this instance. There was evidence before the court to support a finding that their injuries contributed to their loss of wages during the week in question and that such loss was not solely the result of economic conditions. See, e.g., Janusz v. Kistler Instrument Corp., 62 A.D.2d 1128, 404 N.Y.S.2d 454 (1978). We conclude that the trial court did not err in finding employees totally disabled during the week of March 8 and awarding them benefits during this period.
AFFIRMED.
HOLMES, J., concurs.
WRIGHT, P.J., concurs in the result.


150 So.2d 275 (1963)
Gertrude S. SCHMIDT, Appellant,
v.
Raymond R. TRACEY, Appellee.
No. 2780.
District Court of Appeal of Florida. Second District.
February 13, 1963.
Rehearing Denied March 6, 1963.
Farish & Farish, West Palm Beach, for appellant.
Earnest, Pruitt & Schulle, West Palm Beach, for appellee.
LOVE, WILLIAM K., Associate Judge.
Appellant, Plaintiff below, appeals from a judgment in her behalf upon a verdict for damages in an amount less than the claimed medical expenses. Other assignments of error are not made points in the brief, and, for that reason, are considered abandoned.
*276 Plaintiff, a 63-year old widow, was engaged in depositing a bag of groceries in the seat of her automobile when Defendant, parked close-by in the parking lot, backed his car into the open door of the Plaintiff's car causing it to strike her in the back, the particular point of impact apparently being the arm-rest of the door. The impact of the Defendant's car upon the door of Plaintiff's vehicle produced two small dents and exposed the bottom coat of paint thereon, but did not expose the metal. Shortly after this accident, Plaintiff returned to the office of a chiropractor where she had earlier that day received a treatment in the form of a very light manipulation for some trouble in the upper neck and upper spine which treatment, according to the practitioner, was not based upon pain and there "wasn't any need for her to be there that day". There were no marks upon the body of the Plaintiff  no bruises, cuts or lacerations and the practitioner had not taken any x-ray pictures of the spine prior to the visit immediately following the accident.
Plaintiff produced as a witness in her behalf, an orthopedist to whom she went for treatment some three to four weeks following the collision. This orthopedist testified that the Plaintiff, in giving her history, reported treatment by the practitioner referred to above and that she felt such treatment was aggravating the situation somewhat. The orthopedist testified that his examination disclosed that the Plaintiff was suffering from Paget's disease, kidney stones, osteo-arthritis, and spondylolisthesis, all of which the orthopedist considered to have been in existence long prior to the accident and none of which were caused or produced by the trauma of the collision.
The orthopedist prescribed a support, diathermy and felt that she had reached the maximum plateau of recovery from the conditions from which she suffered.
The charges of the orthopedist clinic, including diathermy, amounted to $189.00, together with the cost of the support of $20.00. The charge included $15.00 for "examination and legal report".
Despite the feeling of her orthopedist that her maximum plateau of recovery had been reached, the Plaintiff returned to the chiropractor where she received some seventy-eight further manipulative treatments. The chiropractor's charges prior to her change to the orthopedist for treatment amount to $78.00 and the treatment charges subsequent to that time amounted to $344.00. In the months preceding the trial the Plaintiff visited a doctor in Ft. Lauderdale for an examination, the charges of this physician, a radiologist and pathologist earlier amounting to some $55.00. It does not appear that these latter items were in connection with treatment.
The burden is upon the Plaintiff to prove the necessity and reasonableness of charges for medical attendance and treatment. Of the total of $706.00 claimed as medical expense, it was within the province of the jury to determine what portion or all thereof should be allowed as proven damages. The record reflects that the jury followed the testimony alertly as indicated by the questions set forth on Page 46 of the transcript. Medical witnesses testified as to the dependence of their opinions upon a truthful or reliable history.
We are unable to say what exact amount the jury allowed as compensation for medical expenses and how much for pain and suffering or aggravation of the injuries, if any. The test is not what amount this Court would have allowed had it tried the case, but whether the jury, as reasonable men, could have found the verdict which they did. Andrews v. Cardosa, Fla.App. 1957, 97 So.2d 43. We hold that the verdict of $508.00 was within this limitation.
The judgment of the lower Court is affirmed.
SHANNON, C.J., and ALLEN, J., concur.


96 F.3d 1456
U.S.v.Packer***
NO. 95-4851
United States Court of Appeals,Eleventh Circuit.
Aug 28, 1996

1
Appeal From:  S.D.Fla., No. 93-06053-CR-NCR

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3

**
 Local Rule 36 case


300 So.2d 479 (1974)
Andrew TAYLOR et ux.
v.
CNA INSURANCE GROUP et al.
No. 54334.
Supreme Court of Louisiana.
June 10, 1974.
Rehearing Denied October 11, 1974.
Walton J. Barnes, Arthur J. Boudreaux, III, Barnes & Barnes, Baton Rouge, for plaintiffs-applicants.
Paul H. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendants-respondents.
MARCUS, Justice.
Upon application of plaintiffs, we granted certiorari in this matter so that we might review the judgment of the Court of Appeal holding that the doctrine of res ipsa loquitur could not be applied to permit recovery from defendants Food Town, Inc. and its insurer Continental Casualty Company.
On September 24, 1974, plaintiff Mary Jane Taylor,[1] accompanied by her daughter, entered Food Town No. 2, a self-service supermarket, to shop for groceries. In the course of her shopping, intending to buy a carton of Coca-Colas, she proceeded down an aisle containing the store's soft drink display.
The soft drink display consisted of six-bottle cartons of soft drinks stacked one on top of the other about three or four cartons *480 high. Between each layer of cartons was a sheet of plastic which rolled back when a carton was lifted from the top of the stack to display the cartons immediately below.
When Mrs. Taylor drew near that section of the display containing the Coca-Colas, she stopped her grocery cart which she had been pushing and reached for one of the cartons of Coca-Colas on the top of the stack. The Coca-Cola cartons were apparently stacked together in one section of the display. To the left of these cartons and separated therefrom by an empty gap estimated from eighteen inches to two feet stood a similar stack of 7-Up cartons. It seems that on top of the stack of 7-Ups stood several separate quart bottles of 7-Ups which had been removed from their cartons.
Immediately upon lifting the top carton of Coca-Colas, the plastic sheet beneath rolled back, and three quart bottles of 7-Ups on the top of the adjacent stack fell. Upon impact with the floor, the three bottles of 7-Up burst, scattering glass fragments over the area, one of which cut a gash in the lower part of plaintiff's leg.
At trial, Mrs. Taylor testified that she did not in any way touch or disturb the 7-Up stack when she reached for and lifted the carton of Coca-Colas. Plaintiff's testimony is corroborated by that of her daughter. However, on cross-examination, plaintiff was questioned in connection with her conversation with an insurance adjuster some four days after the accident. The transcript of this testimony is as follows:
"Q. [By Mr. Guglielmo]
Do you remember when this lady by the name of Mrs. Jo Samford from the insurance Company talked to you and it was on October 28 at 2:30 P.M., it was four days after this accident?
"A. [By Mrs. Taylor]
Yes, Sir.
"Q. And do you remember telling her that you just can't say whether the seven-ups were next to the coca colas or whether they were on top or not?
"A. I probably did, Sir.
"Q. Because, and I am quoting from the statement and if it is wrong you correct it. You said, `because I really wasn't paying that much attention.' Do you remember telling her that?
"A. Well, that's right, I was getting the cokes as I told you before. I was interested in the cokes."
It is urged by defendants that it was only at the trial of this matter, approximately thirteen months subsequent to the accident, that plaintiff suddently became so certain that the 7-Up bottles which fell were located some eighteen to twenty-four inches from the Coca-Colas which she removed. Whereas, Mrs. Taylor admitted four days after the accident that she did not know where the 7-Up bottles were located that fell.
We are impressed by the findings of the trial judge, who heard and saw the witnesses. He stated in his written reasons for judgment:
"Whether the movement by the plaintiff of the cartons disturbed the other arranged bottles and cartons causing the seven-up bottles to fall has not been established; however, there seems to be a reasonable inference that this is what may have occurred." (Emphasis ours)
The other evidence adduced at the trial did not add much. the plaintiff called a Mrs. Eula Hunt who was a customer in the store at the time; however, since she did not see the bottles fall, her testimony was not very helpful.
The manager of the store at the time of the accident was no longer employed by Food Town at the time of the *481 trial and was unavailable to testify. Plaintiff called the manager of the store at the time of the trial under Article 1634 C.C.P.; however, upon defense objections, he was not permitted to testify as to general stacking, cleanup, inspection or policing policies employed by Food Town stores in general. The record clearly reflects that he had no knowledge of the manner in which the soft drinks were shelved or displayed in Food Town No. 2 at the time of the accident. We find that the trial judge properly excluded this testimony. Thus, neither party introduced any evidence establishing who had originally stacked the soft drinks on the date of the accident, what condition the stacks were in at the time, or what, if any, inspection procedures were employed by Food Town to discover and correct any unsafe conditions occurring in the store from time to time.
For reasons previously quoted, the trial judge concluded that the doctrine of res ipsa loquitur did not apply under the facts of this case. The Court of Appeal affirmed, citing Pilie v. National Food Stores, Inc., 245 La. 276, 158 So.2d 162 (1963) and Ziegler v. McCrory Corporation, 278 So.2d 817 (La.App.1973).
The sole issue presented to us for review is the applicability of the doctrine of res ipsa loquitur to the particular facts and circumstances of this case.
The landmark case in the jurisprudence of this State concerning the doctrine of res ipsa loquitur is Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (1957). Therein, we stated:
"A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is `that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty.'
* * * * * *
"It necessarily follows that the maxim is not appropriate where, from the nature of the facts, it is reasonable to assume that the actions of the defendant may have been caused by the negligence of another. In the case of Morales v. Employers' Liability Assur. Corp., 202 La. *482 755, 12 So.2d 804, this Court aptly stated: `It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the rule of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked.' 202 La. at page 769, 12 So.2d at page 808."
In the case of Pilie v. National Food Stores, Inc., supra, Mrs. Pilie was pushing her grocery cart down an aisle containing a soft drink display in a National Food Store supermarket when, without touching the display with either her body or her cart, a carton of bottles fell, injuring her. Mrs. Pilie was unable to prove how the carton fell. In holding that the doctrine of res ipsa loquitur did not apply in that case, we stated:
"As pointed out previously, our own jurisprudence is in accord with the view that each case must be decided on its own facts and circumstances, and that res ipsa loquitur will not be applied unless the facts and circumstances indicate that the negligence of the defendant, rather than the negligence of others, is the most plausible explanation of the accident. Accordingly in answer to plaintiffs' question of law, the facts and circumstances of this case do not permit the application of the doctrine of res ipsa loquitur because from them we cannot draw the inference that it was National's negligence, rather than the negligence of others, that caused the cartons to fall."
We are satisfied that the doctrine of res ipsa loquitur does not apply where the facts are such that one could reasonably infer therefrom that the accident was due to a cause other than the defendant's negligence. It is our opinion that the accident, together with all the attending circumstances, must warrant an inference, not of negligence only, but of defendant's negligence. We might add that the fact that the accident gives rise to several inferences, each one of which suggests a different cause of the accident, does not concern us as long as they all point to the negligence of defendant.
In the present case, there is a reasonable inference that the accident might have been caused by the negligence of the plaintiff in the manner in which she took the carton of Cokes from the shelf. The plaintiff's testimony, taken as a whole, indicates that she might not have been paying proper attention under the circumstances. Furthermore, this is borne out by the findings of the trial judge. Also, it would seem that the facts of this case are stronger for not applying the doctrine of res ipsa loquitur than those in the Pilie case. In that case, it was conceded that the accident was not caused by reason of fault or negligence of Mrs. Pilie, as she was in no way involved in taking the soft drinks from the soft drink display. However, here, plaintiff was removing a carton of Cokes from the soft drink display when the accident occurred. We are unable to say under the attending circumstances of the accident in this case that there is only an inference of defendant's negligence. We feel that it is just as reasonable to conclude that there is an inference of plaintiff's negligence.
Thus, we conclude that the doctrine of res ipsa loquitur does not apply in the instant case. The record clearly reveals that plaintiffs failed to prove any negligence on the part of Food Town. The Court of Appeal properly dismissed plaintiff's claims.
For the reasons assigned, the judgment of the Court of Appeal is affirmed.
BARHAM and DIXON, JJ., dissent.
NOTES
[1]  Mrs. Taylor's husband, who is a party plaintiff to the suit, seeks recovery for medical expenses incurred as a result of her injuries.