Allen, Heather v. Deliveries via ISG, LLC

FILED
Apr 29, 2025
11:54 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Heather Allen ) Docket No. 2023-06-7576
)
v. ) State File No. 44213-2023
)
Deliveries via ISG, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )

Affirmed and Remanded

The employee in this interlocutory appeal was involved in a motor vehicle accident while
operating a company vehicle within the course and scope of her employment. The
employee’s authorized treating physician diagnosed several medical conditions and
eventually recommended a multi-level cervical fusion. The employer declined to
authorize the recommended surgery, arguing that the employee’s preexisting
degenerative conditions were the primary cause of her need for surgery. Following an
expedited hearing, the trial court determined the expert medical evidence offered by the
employer did not rebut the presumption of correctness afforded the causation opinion of
the panel-selected authorized treating physician, and it ordered the employer to authorize
the recommended surgery. The employer has appealed. Having carefully reviewed the
record, we affirm the trial court’s order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

A. Allen Grant and Benjamin T. Norris, Nashville, Tennessee, for the employer-
appellant, Deliveries via ISG, LLC

Brian Dunigan, Goodlettsville, Tennessee, for the employee-appellee, Heather Allen

Factual and Procedural Background

Heather Allen (“Employee”) worked as a delivery driver for Deliveries via ISG,
LLC (“Employer”). On April 26, 2023, while she was operating a company vehicle
within the course and scope of her employment, Employee’s delivery van was rear-ended

1
by another vehicle, which pushed Employee’s van into a ditch. She informed Employer
of the accident and reported suffering injuries to her right knee, back, and neck.

Employee was transported by ambulance from the accident scene to Ascension St.
Thomas Hospital West, where she reported head and neck pain, as well as right knee and
low back pain. A CT of the head revealed no abnormalities, and a CT of the cervical
spine showed no acute fractures or subluxations. A lumbar x-ray also showed no acute
fractures or subluxations, and x-rays of the right knee revealed no acute abnormalities.
The provider released Employee from the emergency department with diagnoses of
lumbar strain, cervical strain, right knee pain, and headache. She was prescribed
medications and instructed to follow up with a primary care provider. 1

Employee was evaluated by a physician’s assistant at Sport Ortho Urgent Care on
June 21, 2023. Her primary complaint at that time was neck pain. She described a
“progressive worsening” of symptoms following the accident, and she rated her average
pain as between four and six out of ten. She also reported radiating pain in her arms with
numbness and tingling in both hands, which were worsening with time, as well as
intermittent headaches that worsened throughout the day. She denied any neck surgeries
or treatments prior to the work accident. In addition, Employee reported that she had
been terminated by Employer because she was unable to tolerate driving or loading
vehicles after the work accident.

A cervical MRI was completed in September that revealed a C4/5 anterolisthesis
with spondylosis resulting in severe canal stenosis with spinal cord deformity. It further
showed multilevel cervical spondylosis with severe canal stenosis at C3/4 and C5/6.

In October 2023, Employee was evaluated by Nurse Practitioner Angela Allen at
Ortho Sport and Spine due to complaints of ongoing neck pain, low back pain, and right
knee pain. She denied experiencing any neck pain prior to the motor vehicle accident.
NP Allen noted that Employee’s cervical MRI revealed “cord compression with
abnormal signal at C4/5 with C3/4 cord flattening and at C5-6.” She also noted that the
cervical CT showed “[m]ultilevel degenerative changes in the cervical spine.” Employee
complained of constant burning and throbbing with sharp pain that radiated to both
shoulders and arms, worse on the left. She also reported “numbness and tingling” in both
hands, left worse than right, with no feeling in her first and second fingers. With respect
to Employee’s neck condition, NP Allen diagnosed cervicalgia, radicular pain, stenosis,
spinal cord compression, and cervical myelopathy. She prescribed medications and
recommended a referral to a spine surgeon for consideration of surgical treatment of the
cervical spine. The following week, Employee was evaluated at Ortho Sport and Spine

1
As the issue in this appeal centers on Employee’s cervical spine condition, we need not address any
other medical conditions Employee alleges arose primarily from the work-related accident at this time.
2
again, and Dr. Mark Flood discussed his recommendation for surgery, including spinal
cord decompression and a multi-level cervical fusion.

Employee was next evaluated by neurosurgeon Dr. Gregory Lanford, who
Employer stipulated was selected from a panel of physicians. In his January 24, 2024
report, Dr. Lanford noted Employee’s history of the work-related motor vehicle accident
leading to neck, back, and right knee pain. He also commented that “she states she has
had no previous similar history of neck pain or numbness in her hand.” Dr. Lanford’s
physical examination showed evidence of diminished range of motion in her neck and a
“positive foramen closure testing.” After reviewing the diagnostic test results, Dr.
Lanford concluded, “I would plan a decompressive cervical laminectomy C3-7 with an
anterior cervical discectomy and fusion C4-6.”

Prior Medical History

Employer declined to authorize the surgery recommended by Dr. Lanford. In
support of its position, Employer noted evidence of prior accidents and medical
treatment, which it asserted showed relevant preexisting conditions. For example, in
February 2015, Employee was evaluated after complaining of left upper arm pain after
lifting heavy wire at work. In a February 24, 2015 report, Dr. J. Jordan noted that
Employee reported experiencing numbness and tingling in her left arm as a result of the
lifting incident, which she reported “will resolve spontaneously in 10 minutes or less.”
Dr. Jordan diagnosed left arm tendonitis. She was treated with medication and physical
therapy. When Employee returned to Dr. Jordan’s office the following month, she
reported some shoulder pain with radiating pain down the arm. Dr. Jordan altered her
medications and therapy regimen. The last report from Dr. Jordan in the record is dated
March 2015.

In 2017, Employee was treated for facial swelling and left neck pain. A CT scan
revealed a dental abscess involving the second and third left molars. These records
reveal no diagnosis related to the neck.

In 2019, Employee reported to Ascension St. Thomas Hospital West with
complaints of chest pain and speech difficulty. Her symptoms included left arm
numbness and tingling, which then “progressed” to numbness and tingling in both arms
and legs, as well as lip tingling. She was evaluated for “stroke-like symptoms,” but there
were no diagnoses related to the cervical spine.

Finally, in November 2020, Employee was treated at Skyline Medical Center for a
work-related injury. She reported falling after being struck by the swinging door of her
delivery van. She landed on her left side and experienced pain from her left hip down her
left leg. Pertinent to the present appeal, she also reported “chronic neck pain,” but she

3
denied that the 2020 work accident had worsened this condition. She was treated for low
back and left hip symptoms and released to follow up with “the workers’ comp clinic.”

Following a January 2025 expedited hearing, the trial court determined that:
(1) the causation opinion offered by the panel-selected, authorized treating physician was
entitled to a presumption of correctness; and (2) Employer did not come forward with
sufficient evidence to rebut that presumption. As a result, the court ordered Employer to
authorize the treatment recommended by Dr. Lanford, including the neck surgery.
Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2024). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2024).

Analysis

On appeal, Employer argues the trial court abused its discretion in giving greater
weight to the causation opinion of the authorized treating physician over that of its
medical experts and in failing to consider our prior opinion in Edwards v. Peoplease,
LLC, No. 2020-07-0656, 2024 TN Wrk. Comp. App. Bd. LEXIS 23 (Tenn. Workers’
Comp. App. Bd. July 2, 2024). 2

2
Our opinion in Edwards v. Peoplease, LLC is currently on appeal to the Tennessee Supreme Court. On
December 6, 2024, the Supreme Court ordered that the case be heard by the full Court instead of the
Special Workers’ Compensation Appeals Panel, and it directed that supplemental briefs be filed. Oral
arguments in Edwards are scheduled to occur in front of the full Court on May 29, 2025.
4
Weighing of Expert Medical Testimony

Tennessee Code Annotated section 50-6-102(12)(E) states as follows:

The opinion of the treating physician, selected by the employee from the
employer’s designated panel of physicians pursuant to § 50-6-204(a)(3),
shall be presumed correct on the issue of causation, but this presumption
shall be rebuttable by a preponderance of the evidence.

Thus, in circumstances where a panel-selected authorized treating physician has offered a
causation opinion, the burden of proof shifts to the party contesting that opinion to come
forward with sufficient evidence to convince the court that the preponderance of the
evidence regarding medical causation is otherwise. Here, Employer stipulated that Dr.
Lanford was a panel-selected authorized treating physician. Dr. Lanford testified that the
work-related motor vehicle accident was more than 50% the cause of the need for the
cervical spine surgery he recommended. Pursuant to section 102(12)(E), that opinion is
presumed correct, and Employer had the burden of rebutting that opinion by a
preponderance of the evidence.

In Edwards, we considered a similar factual scenario, but in the context of an
appeal of a final compensation order. The employee in that case was also involved in a
motor vehicle accident while operating a company vehicle. Id. at *3. She reported
suffering injuries to both knees resulting from the accident, and the treating physician
eventually recommended total knee replacements. Id. at *4-5. Unlike in the present case,
however, the panel-selected authorized treating physician opined that the employee’s
need for total knee replacements arose primarily from her “severe, bilateral end stage
osteoarthritis,” which he said preexisted the work accident. Id. at *5. In an effort to
rebut that presumptively correct opinion, the employee offered testimony from other
orthopedic surgeons, who opined that the need for surgery was caused primarily by the
work-related accident. Id. at *8-11. One of the employee’s experts testified that the
employee was asymptomatic prior to the work accident, and the accident hastened the
need for the surgery. Id. at *9. The trial court in Edwards gave greater weight to the
opinion of the employee’s experts and awarded the employee benefits, which included
ordering the employer to pay for the total knee replacements. Id. at *13.

On appeal, we were divided. A majority of the Appeals Board concluded the trial
court had abused its discretion in accepting the opinions of the employee’s experts over
those of the authorized treating physician. Id. at *25. 3 As a result, we reversed the trial
court’s order awarding benefits. Id. at *35.
3
In the current Edwards appeal, the Tennessee Supreme Court’s request for supplemental briefing
pertained to the applicable standard of review on appeal when the expert medical proof is presented by
deposition or in documentary form as opposed to live testimony. In Moore v. Beacon Transport, LLC,
No. 2018-06-1503, 2021 TN Wrk. Comp. App. Bd. LEXIS 39 (Tenn. Workers’ Comp. App. Bd. Oct. 29,
5
In the present case, Employer argues the trial court failed to consider “the
Edwards factors” in its assessment of the expert medical proof. In its view, in
circumstances where an employee is diagnosed with a relevant preexisting condition,
Edwards requires a trial court to consider: (1) whether the employee was symptomatic or
asymptomatic prior to the work accident; (2) whether the employee was experiencing any
functional limitations caused by that preexisting condition prior to the work accident; and
(3) whether the evidence reveals any “anatomic change” to the body part(s) in question
after the work accident. See id. at *22-23. Although we agree that the factors Employer
cites are relevant to the analysis, that list is not by any means exhaustive, and a trial court
should consider all other relevant factors in assessing whether a work-related accident has
materially advanced, aggravated, or accelerated a preexisting condition to the point that
the need for medical treatment and/or any resulting disability arises primarily from that
work accident.

During his deposition, Dr. Lanford was asked whether the work-related motor
vehicle accident was the primary cause of the need for the surgery he had recommended.
With respect to evidence of Employee’s preexisting degenerative conditions, the
following exchange occurred:

Q. In your opinion[,] within a reasonable degree of medical certainty, do you
have an opinion about whether she would need this surgery at this juncture
of time if not for the car crash?

A. Assuming the car crash is when the onset of her symptoms occurred, then I
feel that the car crash is the reason she’s having surgery, yes.

Q. . . . . [T]he diagnostic files showed degenerative findings?

A. Absolutely.

Q. Ms. Allen was 46 years old when you saw her?

A. Yes . . . . Degenerative changes [are] very common at 46 years old. A
severe spinal stenosis C3 to 7 at 46 years old is uncommon.

Q. Is that a condition that can be asymptomatic?

A. Yes.

2021), we had previously decided, again in a split decision, that binding precedent requires an appellate
court to review a trial court’s decision to give greater weight to one expert opinion over another under an
abuse-of-discretion standard, regardless of the form of the evidence presented. Although that is the
standard we are using in the present appeal, we recognize that the applicable standard of review of expert
evidence is an issue to be addressed by the Supreme Court in Edwards.
6
Q. And based on Ms. Allen’s history, in your opinion to a reasonable degree of
medical certainty, can you say whether or not it appeared to be
asymptomatic in this case up to the car crash?

A. When you say “asymptomatic,” this is totally based on her history. She
states she had no symptoms prior to the accident, so I would say she was
asymptomatic assuming she’s giving an accurate history.

Q. And can you say based on her history whether or not this crash caused the
asymptomatic condition to become symptomatic?

A. Again, if her history is accurate, I totally believe that’s what caused her
symptoms to become clinically real.

....

Q. And in your examination, did you see anything that you noted in your
record to give you a suspicion that she was malingering or not being
honest?

A. She had objective findings on her imaging studies that show her symptoms
should be totally consistent with what she complains about.

During cross examination, when questioned about his causation opinion, Dr. Lanford
stated, “I think her history is consistent with a trauma and a spinal cord injury.” 4 When
asked whether the work-related accident was the “straw that broke the camel’s back,” Dr.
Lanford responded, “it’s what caused her to have surgery, yes.” Thereafter, Dr. Lanford
testified:

Yes, you will see patients that come in with severe cervical spinal stenosis
that are asymptomatic; by her history, that’s where she was. And I
wouldn’t recommend surgeries to . . . one who had no symptoms, a
prophylactic surgery of some sort unless they were – let’s say they were a
professional football player, okay . . . . [Those in] the general population
who are doing normal occupations that don’t require repetitive collisions of
the head, I don’t see a reason to say prophylactically you are going to
operate on someone when they are asymptomatic.

Finally, Dr. Lanford was asked during cross examination to review the report of
Dr. John Burleson, an orthopedic surgeon. When asked about Dr. Burleson’s opinion

4
Dr. Lanford also testified during cross examination that “[w]hen I’m asked for a causation opinion, I’m
giving it more than 50 percent.”
7
that Employee’s preexisting conditions were 75-80% the cause of the need for surgery,
with only 20-25% of the cause attributable to the work-related accident, Dr. Lanford
testified he disagreed with that opinion. Dr. Lanford commented that Dr. Burleson
apparently did not recognize or consider her cervical myelopathy. He also disagreed with
Dr. Burleson’s opinion that Employee would have needed the surgery regardless of the
motor vehicle accident. He testified it would be “totally speculating” to opine as to when
and if Employee’s condition would have progressed to the point of needing the kind of
surgery he believed she needed after the motor vehicle accident.

Employer presented Dr. Burleson’s deposition testimony, who completed a
records review and medical examination at Employer’s request. Dr. Burleson testified he
had recently completed a physician certification program sponsored by the Bureau of
Workers’ Compensation that included training in evaluating causation issues in the
context of workers’ compensation claims. In this case, Dr. Burleson stated that, after
reviewing Employee’s prior medical history in light of her current cervical spine
condition, he considered her prior complaints of left arm numbness and tingling “as being
potentially related.” With respect to a 2017 CT scan that had been ordered in the context
of the dental abscess, Dr. Burleson commented he reviewed the images and saw evidence
of “significant arthritis” in the cervical spine. He described seeing “things that might
indicate chronic pathology.” However, he acknowledged that those scans did not show
the spinal cord itself or the cervical discs with sufficient clarity to evaluate them.

With respect to preexisting symptomatology, Dr. Burleson admitted that the 2017
CT scan was not determinative. According to Dr. Burleson, if a patient with those
objective findings reported numbness and tingling in the arm, he would agree such
symptoms could be consistent with a cervical condition, but he also acknowledged it
could also be an incidental finding in a patient being evaluated for some other medical
condition, such as a dental abscess.

Dr. Burleson was also asked about 2020 records from Skyline Medical Center
indicating that the patient had reported “chronic neck pain” during a visit where she was
being treated for hip and low back complaints following a fall. According to Dr.
Burleson, “it just gave us a point in time where she had reported to the provider there that
she has had chronic neck pain.” Dr. Burleson acknowledged there was no “clear
definition” as to the meaning of the word “chronic” in that context.

Next, when asked whether the prior medical records he had reviewed indicate
Employee “had symptoms of cervical stenosis prior to the work accident,” Dr. Burleson
responded, “yeah, I think it’s likely . . . . Is it possible she had peripheral neuropathy? It
is. I wasn’t there, and I can’t say with certainty, but it’s likely.”

As noted above, Dr. Burleson expressed the opinion that the primary cause (75-
80%) of the need for cervical spine surgery was her preexisting degenerative condition,

8
with the work-related motor vehicle accident being a minor, secondary cause (20-25%).
As Dr. Burleson explained, “we think that’s from a compilation of maybe minor insults
from just turning your head and the disc wearing, and eventually there’s kind of a straw
that broke the camel’s back. It’s just enough now that all of a sudden a threshold has
been reached where the nerve is firing.”

During his physical examination, Dr. Burleson found no evidence of myelopathy,
unlike the findings of Dr. Lanford and the MRI results. Dr. Burleson saw evidence of
cervical degenerative disc disease from the C3 to the C7 levels, including both arthritis
and stenosis. He also saw evidence of a large disc osteophyte at the C4-5 level.
Ultimately, he agreed that Dr. Lanford’s proposed surgery was “very sound and
reasonable” based on the evidence presented. He disagreed with Dr. Lanford’s opinion
as to the primary cause of the need for that surgery.

During his cross examination, Dr. Burleson admitted that the 2015 medical
records regarding left arm numbness indicated a diagnoses of left arm tendonitis, and
there was “no indication anywhere in the medical records that the 2015 problem was
coming from her neck.” Similarly, the 2019 records indicating that she was evaluated for
stroke-like symptoms also contained no reference to a neck or cervical spine diagnosis.
Finally, Dr. Burleson acknowledged there are no records between the 2020 records and
the 2023 work-related accident indicating any additional complaints or progression of her
cervical spine condition. Moreover, Dr. Burleson admitted that the work accident could
be considered “the inciting event where she became symptomatic.” Yet, he maintained
that “she was 90 yards down the field staring at the end zone” when the work accident
occurred. 5

Finally, we note that Employee did not testify during the expedited hearing.
Instead, her affidavit was admitted into the record for the court’s consideration, but it
contained no information addressing Employer’s allegation of prior relevant
symptomatology.

Application of Law to Facts

Here, with respect to the issue of medical causation, we cannot conclude the trial
court erred in accepting the presumptively correct opinion of the panel-selected
authorized treating physician over that of Employer’s experts. First, the preponderance
of the evidence Employer presented suggesting prior symptoms was in the context of the

5
In addition to Dr. Burleson’s testimony, Employer also presented written reports from Dr. Kimberly
Terry and Dr. Luc Jasmin, both Tennessee-licensed neurosurgeons. Dr. Terry completed a records review
only and opined that “the current complaints and need for treatment including cervical surgery are not
50% or more causally related to the MOI/DOI of 4/26/2023.” Similarly, Dr. Jasmin completed a records
review and opined that “the current findings/diagnoses/complaints to the cervical spine are not greater
than 50% causally related to the industrial incident of 4/26/23.”
9
evaluation and treatment of body parts other than the cervical spine. These included the
prior left arm injury, a dental abscess causing swelling in the area of the jaw and neck,
and prior evaluation for stroke-like symptoms. In our view, there is insufficient evidence
that any prior numbness, tingling, or pain in the left arm was related to a cervical spine
condition.

Second, the only direct evidence Employer offered supporting its position of prior
symptoms was a November 2020 medical record from Skyline Medical Center reflecting
that Employee had complained of “chronic neck pain.” Yet, the purpose of her visit in
2020 was for evaluation and treatment of her left hip and low back, and the provider did
not evaluate or treat a neck condition. Although this evidence is supportive of
Employer’s position that Employee reported suffering from prior neck symptoms, there is
no evidence that any such preexisting condition caused disabling symptoms or functional
limitations prior to the work-related accident.

As a result, we cannot conclude the trial court erred in accepting Dr. Lanford’s
causation opinion over that of Dr. Burleson. There is competent medical evidence that
the work accident either made a previously asymptomatic condition symptomatic or
increased her symptomatology significantly. There is evidence that the motor vehicle
accident caused or materially advanced her preexisting cervical condition. There is
evidence that the motor vehicle accident, at a minimum, hastened the need for surgery.
Moreover, although the trial court reviewed the reports from Drs. Terry and Jasmin, the
court noted that they had no opportunity to examine Employee and, thus, that their
causation opinions were of limited value. In short, we agree with the trial court that
Employer failed to overcome the presumption of correctness afforded Dr. Lanford’s
causation opinion at this interlocutory stage of the case. Consequently, we conclude
Employee came forward with sufficient evidence to show she is likely to be successful at
a hearing on the merits.

Conclusion

For the foregoing reasons, we affirm the trial court’s order in all respects and
remand the case. Costs on appeal are taxed to Employer.

10
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Heather Allen ) Docket No. 2023-06-7576
)
v. ) State File No. 44213-2023
)
Deliveries via ISG, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 29th day
of April, 2025.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
A. Allen Grant X agrant@eraclides.com
Benjamin T. Norris bnorris@eraclides.com
Brian Dunigan X brian@poncelaw.com
kfaig@poncelaw.com
Joshua D. Baker, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov