The opinion
IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
November 2, 1998
) FOR PUBLICATIONCecil W. Crowson
DEBORAH WILLIAMS ) Appellate Court Clerk
) FILED: NOVEMBER 2, 1998
Plaintiff-Appellee )
) HENRY COUNTY
v. )
) HON. C. CREED MCGINLEY,
TECUMSEH PRODUCTS COMPANY ) JUDGE
)
Defendant-Appellant ) NO. 02-S-01-9702-CV-00012
For Appellee: For Appellant:
GAYDEN DREW IV DAVID F. HESSING
Jackson, TN Paris, TN
OPINION
JUDGMENT OF TRIAL COURT AFFIRMED BIRCH, J.
The Special Workers’ Compensation Appeals Panel approved
the trial court’s award of benefits to Deborah Williams, the
plaintiff, who had suffered symptoms of carpal tunnel syndrome
related to her employment as an assembly-line worker for Tecumseh
Products Company, the defendant. At issue are the causation and
permanency of the worker’s injuries and the payment of
discretionary costs related to the deposition of an examining
physician. For the reasons appearing below, we adopt the panel’s
findings of fact and conclusions of law with respect to the issues
of causation and permanency. Although we affirm the award of
discretionary costs, we vacate the panel’s order invalidating
certain local procedures of the Twenty-Fourth Judicial District.
I
The plaintiff is a thirty-eight year old female who has
been an assembly-line worker, sewing machine operator, bail
bondsperson, cashier, and restaurant manager. In 1995, she began
operating a machine which required her to perform repetitive
motions with both hands throughout her entire shift at the
defendant’s facility.
The plaintiff testified that she had experienced no
problems with her hands, wrists, or arms prior to returning to the
defendant’s employment in March 1995. When she returned, however,
she elected to wear a set of wrist braces provided by the
defendant. Even so, in July 1995, the plaintiff reported having
experienced “burning and tingling” in both her hands and arms. The
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defendant responded to this complaint by providing her with a list
of doctors to see.
Ronald Bingham, M.D., examined the plaintiff and
determined that she had a mild left tennis elbow, although her
nerve conduction tests were normal. The plaintiff continued to
work. On November 10, 1995, she injured her right hand at work
which required emergency treatment for minor lacerations, numbness,
and swelling. As a result, James McGee, M.D., placed the plaintiff
on light duty for a week due to continued swelling.
The plaintiff experienced further pain in her right arm
and was referred to Lowell Stonecipher, M.D., in January 1996.
Stonecipher noted that the plaintiff had a cyst, swelling, and a
positive Finkelstein’s test.1 He performed surgery on her right
wrist and subsequently released her to light duty in March 1996,
even though she complained of unexplained numbness and tenderness.
The plaintiff testified that the swelling and burning continued
after the surgery, although she did experience some relief in her
thumb.
The plaintiff returned to McGee in late March 1996,
complaining about continued pain and swelling. Although he
confirmed the swelling, he returned her to light duty and told her
to follow up with Stonecipher. On April 1, 1996, Stonecipher
1
The Finkelstein’s test is performed by placing the thumb in
the palm and then forcing the hand toward the little finger. If
the patient complains of pain, the test is considered positive. A
positive test is used to diagnose tenosynovitis which is an
inflammation of a tendon and its enveloping sheath.
3
opined that the plaintiff would retain no permanent impairment
secondary to her wrist surgery and could return to full duty. Upon
her return, she received a new job which required repetitive
motion. She performed this job until April 12, 1996, when she quit
because of continual pain. As of the date of trial, the plaintiff
had not secured a new job, although she had submitted several
applications.
Other physicians examined the plaintiff after she had
terminated her employment. Joseph Boals, M.D., a board-certified
orthopedic surgeon, examined her on June 4, 1996, at the request of
her attorney. Boals found that the plaintiff had prominent
swelling over the radial aspects of both wrists, patchy numbness on
the right side, and positive results on both Finkelstein’s and
Phalen’s tests.2 In his deposition, he opined that she suffered
from “occupational stress syndrome bilaterally manifested by
bilateral tenosynovitis, de Quervain’s tenosynovitis3 and bilateral
carpal tunnel syndrome” caused by her “multiple jobs and work done
at Tecumseh.” Based on her significant grip loss, he rated her as
having a 30 percent anatomical impairment to her right arm and a 20
percent anatomical impairment to her left arm.
2
The Phalen’s test is performed by flexing the wrist and
holding it flexed for up to one minute. If the patient complains
of tingling and numbness at the distribution of the median nerve of
the hand, the test is said to be positive at that time. This test
is used to determine whether a patient is suffering from carpal
tunnel syndrome.
3
De Quervain’s tenosynovitis is an irritation of the lining of
the tendons in the first dorsal compartment of the wrist. It is
characterized by swelling, irritation, and pain.
4
Next, Anthony Segal, M.D., a neurologic surgeon,
evaluated the plaintiff on October 3, 1996, at the request of the
defendant. In his report, Segal noted the plaintiff’s poor grip
strength and “very strange” symptoms, but he disagreed with Boals’s
diagnosis of carpal tunnel syndrome and reported that the plaintiff
had “no impairment rating from a neurological point of view.” He
wrote that he could not diagnose with certainty because the
plaintiff’s problems, if any, appeared to be orthopedic in nature.
He recommended that she be examined by a hand surgeon.
Finally, Work Solutions4 performed an evaluation of the
plaintiff. The evaluation report noted that while the plaintiff’s
fine motor dexterity was good, the results of materials-handling
and grasp-strength testing indicated submaximal effort on her part.
The trial court summarized all of the evidence from the
bench, noting the conflicts between the various medical reports.
The court credited Boals’s testimony and awarded the plaintiff
benefits for permanent impairments of 50 percent to her right arm
and 40 percent to her left arm. The Special Workers’ Compensation
Appeals Panel affirmed the trial court’s award in all respects.
4
Work Solutions is a Memphis business that performs evaluative
testing on injured employees. Through a “functional capacity
evaluation” including activities such as walking on a treadmill,
Work Solutions measures, inter alia, an individual’s grip strength,
overhead lifting ability, and endurance. These measurements are
then analyzed to determine the range of work activities that the
individual should be able to perform.
5
II
The defendant asserts that the trial court erred in
finding that the plaintiff’s injuries were caused by her
employment. In workers’ compensation cases, appellate review is de
novo on the record accompanied by a presumption that the findings
of the trial court are correct unless the preponderance of the
evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (Supp.
1997); Lawson v. Lear Seating Corp., 944 S.W.2d 340, 341 (Tenn.
1997). To satisfy this standard of review, we are required to
conduct an independent examination to determine where the
preponderance of the evidence lies. Wingert v. Government of
Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995).
An injury arises out of employment if it has a rational,
causal connection to the work. Reeser v. Yellow Freight Sys.,
Inc., 938 S.W.2d 690, 692 (Tenn. 1997). In this case, the trial
court had but two expert opinions regarding causation: one
unequivocally finding causation and the other finding that the
plaintiff’s job tasks would not “place an employee at risk for
cumulative trauma disorders.”
The testimony of expert witnesses must be considered in
conjunction with the employee’s testimony as a lay witness. Thomas
v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991). The
trial court found that the plaintiff’s “very credible testimony”
bolstered the medical evidence of causation. Given this
determination of credibility and the trial court’s careful review
6
of the medical evidence, we cannot say that the evidence
preponderates against the trial court’s finding of causation.
III
The defendant next asserts that the evidence
preponderates against the trial court’s award of permanent
disability benefits. The defendant’s argument in this regard has
three points: (1) the evidence of permanency; (2) the disability
rating provided by Boals; and (3) the extent of vocational
disability found by the trial court.
The medical evidence in this record, as in many cases,
conflicts regarding whether the disability is permanent. In
resolving the conflict, the trial court gave great weight to the
deposition testimony of Boals who opined that the plaintiff’s
injuries were permanent, although she “could” experience some
improvement while the underlying condition persists. The trial
court did not abuse its discretion in crediting Boals’s opinion
more than the other physicians’ opinions. See Johnson v. Midwesco,
Inc., 801 S.W.2d 804, 806 (Tenn. 1990).
Additionally, we do not agree with the defendant that
Boals’s disability rating is erroneous because it was based solely
on the plaintiff’s loss of grip strength. An examination of
Boals’s testimony as a whole makes it clear that he considered all
of the evidence in assessing the plaintiff’s condition. He did not
find any evidence that the plaintiff malingered, and he testified
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that his ratings were in accordance with the American Medical
Association’s Guides to the Evaluation of Permanent Impairment.
See Tenn. Code Ann. § 50-6-204(d)(3) (Supp. 1997) (requiring
adherence to specified treatises for assessing the degree of
anatomical impairment).
Moreover, consideration of the extent of the plaintiff’s
vocational disability is a question of fact. Jaske v. Murray Ohio
Mfg. Co., 750 S.W.2d 150, 151 (Tenn. 1988). The trial court may
make an independent examination of the evidence, see Cooper v.
Insurance Co., 884 S.W.2d 446, 451 (Tenn. 1994), and is not bound
to accept any expert’s opinion regarding vocational disability.
Prost v. City of Clarksville Police Dep’t, 688 S.W.2d 425, 428
(Tenn. 1985). Tennessee Code Annotated § 50-6-241(a)(1) (Supp.
1997) lists the relevant factors to be considered those being: lay
and expert testimony; the employee’s age; the employee’s education;
the employee’s skills and training; the local job opportunities;
and the employee’s capacity to work at types of employment
available in the employee-claimant’s disabled condition.
In this case, the trial court specifically noted its
consideration of many factors, including the plaintiff’s testimony
concerning how the impairments affect her daily life. In cases
such as this, great deference must be given to the trial court’s
findings. See Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712
(Tenn. 1997) (considerable deference where issues of credibility
and weight of oral testimony are involved). We thus cannot find
8
that the evidence preponderates against the trial court’s rating of
vocational disability.
IV
The final issue raised by the defendant concerns the
trial court’s award of costs to the plaintiff. The award included
the costs of giving and transcribing Boals’s deposition. The
defendant argues that Boals’s submission of a standard medical
report made his deposition unnecessary. Although Boals failed to
indicate causation on the form, the defendant asserts that this
omission could have easily been rectified without the need for a
costly deposition.
Tennessee Code Annotated § 50-6-226(c)(1) (Supp. 1997)
provides:
The fees charged to the claimant by
the treating physician or a
specialist to whom the employee was
referred for giving testimony by
oral deposition relative to the
claim, shall, unless the interests
of justice require otherwise, be
considered a part of the costs of
the case, to be charged against the
employer when the employee is the
prevailing party.
Boals was “a specialist to whom the employee was referred” for an
evaluation. We do not think it was unreasonable for the plaintiff
to take his deposition, especially where the defendant argued
against both Boals’s causation and permanency findings. In
addition, where the trial court did not abuse its discretion in
9
awarding the physician’s deposition fee, the court clearly had
discretion to also award the plaintiff the court reporter’s costs
for transcribing that deposition. See Tenn. R. Civ. P. 54.04(2).
Despite this seemingly uncomplicated resolution, a
majority of the Special Workers’ Compensation Appeals Panel invoked
Tenn. R. App. P. 13(b) to address an issue not raised by the
parties with respect to these discretionary costs. Specifically,
the panel addressed the question whether some procedures of the
Twenty-Fourth Judicial District5 for workers’ compensation cases
conflicted with state statutes and court rules such that the
procedures should be invalidated.
Tennessee Rule of Appellate Procedure 13(b) provides that
review on appeal will generally only extend to those issues raised
by the parties. The rule further provides that an appellate court
has discretion to consider issues not raised by the parties in
order, among other reasons:
(1) to prevent needless litigation,
(2) to prevent injury to the interests
of the public, and
5
The specific local procedures reviewed by the panel in this
case were as follows:
1) Whether the requirement of scheduling a benefit
review conference within thirty days of a request
for such conference conflicts with Tenn. Code Ann.
§ 50-6-239(c)(1) (Supp. 1997);
2) whether prescribing the nature of the evidence to
be presented at a benefit review conference
conflicts with Tenn. Code Ann. § 50-6-235(c) (Supp.
1997); and
3) whether limiting the evidence which can be
presented at a trial and limiting the ability of
parties to take a deposition conflicts with Tenn.
Code Ann. § 50-6-235(c)(1) and Tenn. R. Civ. P. 30.
10
(3) to prevent prejudice to the judicial
process.
According to the majority, the second and third reasons quoted
above “not only justif[ied], but dictate[d]” that the local
procedures be reviewed by the panel. Such review led the panel
majority to declare the local procedures in question null and void
and to direct the affected judges to “enter an order in their
respective courts to reflect the change in their Local Rules as
brought about herein.”
Justice Holder, a member of the panel, invoked Tenn. Code
Ann. § 50-6-225(e)(5)(A) (Supp. 1997) to obtain review by the other
members of the Court. The Court has reviewed this issue and finds
no compelling reason to review the local procedures. Accordingly,
the Court adopts the views expressed by Justice Holder in the
separately filed concurring opinion, which is, in words and figures
as follows:
While I concur in the
majority's affirmance of the trial
court's judgment, I write separately
to express my discomfort with the
majority's decision to invalidate
the local rules of the Twenty-Fourth
Judicial District pertaining to
workers' compensation cases. The
issue of whether the local rules
were valid was not raised by either
party and was unnecessary to the
disposition of the issues properly
before us.
Since 1983, trial judges have
been required to adopt local rules.6
6
Tennessee Rules of the Supreme Court, Rule 18 requires all
trial courts to adopt in writing local rules prescribing procedures
for setting cases for trial, obtaining continuances, disposition of
pre-trial motions, settlement or plea bargaining deadlines for
11
In this case, the validity of the
local rules addressing workers'
compensation cases for the Twenty-
Fourth Judicial District was not
raised by either party.
Accordingly, the issue has not been
squarely placed before this panel
for disposition. Rule 13(b) of the
Tenn. R. App. Proc. provides:
Review generally will
extend only to those
issues presented for
review. The appellate
court shall consider
whether the trial and
appellate court have
jurisdiction for review,
and may in its discretion
consider other issues in
order, among other
reasons: (1) to prevent
needless litigation, (2)
to prevent injury to the
interests of the public,
and (3) to prevent
prejudice to the judicial
process.
None of these reasons appear to
apply to the determination of the
validity of these local rules. I
would find that it is improper for
this panel to raise this issue sua
sponte in the absence of a
compelling reason recognized under
Rule 13(b).
V
It results that the panel’s conclusions that the evidence
does not preponderate against the trial court’s findings of
causation, permanency, and vocational disability ratings of 50
percent to the plaintiff’s right arm and 40 percent to the
criminal cases, and preparation, submission and entry of orders and
judgments. In addition, trial courts may adopt "other rules not
inconsistent with the Rules of Civil Procedure and Rules of
Criminal Procedure."
12
plaintiff’s left arm are approved and affirmed. We approve and
affirm also the award of discretionary costs to the plaintiff. We
vacate, however, the order invalidating the Twenty-Fourth Judicial
District’s procedures for workers’ compensation cases, expressing
neither approval nor disapproval of those procedures.
Costs are taxed to the defendant, for which execution may
issue if necessary. No appellate costs, however, shall be taxed to
either party for the review in this Court under Tenn. Code Ann. §
50-6-225(e)(5)(A).
_____________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, J.
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