                   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



                                               2
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



                                            7
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.




                                13
