Gaines v. Sun Refinery and Marketing , 1990 Okla. LEXIS 35 ( 1990 )

SUMMERS, Justice:

Claimant sought compensation for loss of pulmonary function. The Workers’ Compensation Court denied benefits but the Court of Appeals reversed. We granted certiorari to address the issue of whether the order of the Workers’ Compensation Court was supported by any competent evidence. Because we find that all medical reports submitted as evidence failed to comply with A.M.A. Guidelines, we reverse and remand for further proceedings. We further set forth the rule to be applied hereafter in order to obtain appellate review of medical reports, and revise our earlier position as to what shall happen when medical reports are determined on appeal to be insufficient.

The plaintiff, Donald Gaines, was employed for four years as a truckdriver for Sun Refinery and Marketing, the respondent. His duties included the pick up and delivery of crude oil. Every time Gaines picked up or delivered oil to an outdoor storage tank he tested the oil to determine the level of gravity. He accomplished this task by dropping a tube, attached to a rope, to the bottom of the tank through a hatch in the top of the tank. This task was performed approximately thirty to forty times a week and took between five and ten minutes to perform on each occasion.

At the Workers’ Compensation Court Gaines asserted that he was suffering from an injury to his lungs which was caused by the fumes he inhaled during the testing procedures. He submitted a report from Dr. A., which stated he had suffered fifty percent (50%) disability because of the injury. Sun objected to this report on the basis that it contained an inaccurate and incomplete history. Sun alleged that this injury did not arise out of or in the course of Gaines’ employment with Sun, but instead was caused by twenty-three years of heavy smoking and eleven years of employment with a laboratory where he was continually in contact with toxic chemicals and fumes. Sun submitted a report from Dr. C., which stated that Gaines was not disabled by a work-related injury, and that any injury was caused by twenty-three years of smoking. Gaines objected to the probative value of the report, stating that Dr. C. did not follow A.M.A. Guidelines.

The Court then introduced, as Court’s Exhibit 1, a third report, written by Dr. M., which stated that Gaines’ injury arose out of his employment with Sun, and that such injury left him twenty percent (20%) disabled. Sun objected to this report on the basis that it contained an inaccurate and incomplete history. After taking the matter under advisement, the Workers’ Compensation Court issued an order denying benefits, because “claimant did not sustain an accidental personal injury arising out of and in the course of claimant’s employment with the above named respondent ...” See order of the Workers’ Compensation Court, Court No. 86-1148F, Feb. 27, 1987. This finding was affirmed by the three judge panel.

Gaines then filed an appeal, alleging that the medical report submitted by Sun was not in compliance with A.M.A. Guidelines and 85 O.S.1987, Ch. 4, Rule 20, and therefore could not be considered as probative and competent evidence. Specifically, Gaines pointed out that Dr. C’s report omitted one test required by the A.M.A. Guidelines. Because the report cannot be considered, Gaines urges that the Workers’ Compensation Court’s order is not supported by any competent evidence and must be reversed.

Answering Gaines’ allegations, Sun asserts that the report of Dr. C. complied with A.M.A. Guidelines. Sun further claims that neither the report of Dr. A. nor the report of Dr. M. comply with A.M.A. Guidelines or Rule 20. Specifically, Sun points out that Dr. A’s report does not state which tests were performed or how the disability rating was computed. The report was also based on an inaccurate history, as there is no mention of Gaines’ prior contact with toxic fumes and chemicals at his previous employment. As to Dr. M., his report indicates that one of the three required tests was performed, and no analysis is given to support the twenty percent (20%) disability rating. The history makes no mention of Gaines’ habitual smoking or his prior employment.

The Court of Appeals in an unpublished memorandum opinion reversed the order of the Workers’ Compensation Court, holding that the employer’s report from Dr. C. was not in compliance with A.M.A. Guidelines, and could not be considered in the adjudication of the case. Thus, the cause was remanded to the Workers’ Compensation Court, with directions to “proceed accordingly.” We vacate the opinion of the Court of Appeals and reverse and remand this cause for further proceedings in accordance with the views stated herein.

I. ANALYSIS OF MEDICAL REPORTS

REPORT OF DR. C.

We first turn to Gaines’ allegation that the report of Dr. C. failed to follow A.M.A. Guidelines as required by Rule 20. Rule 20 requires a statement that the evaluation is in substantial compliance with A.M.A. Guidelines. If there is a deviation from the Guidelines, it must be explained by the doctor in his report. 85 O.S.Supp. 1987, § 3(11). The test applied to resolve the question of substantial compliance is “whether, from a medical report’s four corners, an unexplained, facially apparent and substantial deviation from the Guides can be detected by mere reference to their text.” Whitener v. South Central Waste Auth., 773 P.2d 1248 (Okl.1989).

The A.M.A. Guidelines suggest that three preliminary evaluations be performed in order to determine the condition of an individual’s respiratory system: 1) dyspnea (shortness of breath. See Dorland’s Illustrated Medical Dictionary 25th Ed.), 2) tests of ventilatory function which include FVC (forced vital capacity), FEV1 (forced expiratory volume), and the ratio of the two,¹ and 3) V02 max, which is the oxygen consumption per minute. See American Medical Association Guidelines, The Respiratory System (2d Ed.1984). Dr. C’s report found claimant to be in Class one (1), with no pulmonary impairment. The three tests are required to confirm that an examinee fits that category (Class one); a contradictory result in any one of the three can indicate he is impaired and thus not in Class one (1). See A.M.A. Guidelines, at p. 86 Chart 1, and p. 98, Figure 2. In our case Dr. C’s report indicated that he conducted only two of the three evaluations. Thus, we must agree that the report did not substantially comply with A.M.A. Guidelines, and that such is apparent by mere reference to the text.

We held in Perlinger v. J.C. Rogers Constr. Co., 753 P.2d 905, 907 (Okla.1988), LaBarge v. Zebco, 769 P.2d 125, and 127 (Okla.1988), Whitener, supra at 1251, that evidence which is not in substantial compliance with Rule 20 is not competent evidence upon which the trial court may base its conclusion. Because the report of Dr. C. reveals a substantial deviation from the Guidelines, and does not explain the deviation, we must agree that it is not competent evidence.

REPORT OF DR. A.

Refuting Gaines’ allegations, Sun points out that Dr. A’s report did not comply with A.M.A. Guidelines for three reasons: (1) the report was based on inaccurate and incomplete history, (2) not all the required evaluations were made, and (3) there was no explanation of how the fifty percent (50%) disability rating was reached. Since we agree with Sun’s position on the first contention we do not address whether its 2nd and 3rd objections were timely preserved for appeal. Nor do we reach the merits of those contentions. (Our pronouncements in Parts II and III will provide guidance on such matters in the future.)

Before the first issue may be addressed, we must determine whether it has been preserved for appeal. Rule 21 requires a timely objection at trial in order to preserve for review any objection regarding probative value. 85 O.S.Supp.1987, Ch. 4, App., Rule 21. Rule 20, which allows for an objection within ten days of the receipt of the medical report, is limited by its own terms to objections concerning admission of the report.² As explained in Whitener, 773 P.2d at 1249 n. 1, the objection to a report’s admissibility is an objection to its competency, rather than its probative value. Hence, Sun was not required to object prior to trial, as its objection was not one as to admissibility but instead challenged the probative value of the medical report. Sun timely objected at trial on the basis that the report contained inaccurate and incomplete history. This objection clearly saves for appellate review Sun’s first contention.

On review, this Court must determine whether the report of Dr. A was in substantial compliance with Rule 20(a) which requires a 'complete history, and Rule 20(i) which requires that the A.M.A. Guidelines be followed. With regard to the respiratory system, the A.M.A. Guidelines make specific requirements as to history:

“Environmental exposure, tobacco usage and chronological occupational data: A detailed history of the patient’s employment in chronological order should be obtained. It is easiest to begin with the most recent job and work back to the earliest job. The examiner should ask about the specific activities in each job, rather than about only the job title. An employee should be questioned about exposures to dusts, gases, vapors and fumes. The specific information required involves (1) the year he or she was first exposed to an agent; (2) the extent of the exposure; (3) the total number of years of exposure; (4) his or her estimate of the hazard that the agent posed; and (5) the number of years since exposure ceased, (emphasis added)

When considering whether the report was based on an incomplete or inaccurate history, a question as to the applicability of the LaBarge “facially apparent” test is raised. The LaBarge test applies to those situations wherein this Court is deciding “whether, from a medical report’s four corners, an unexplained, facially apparent and substantial deviation from the guides can be detected by mere reference to their text.” (Emphasis Added.) Obviously, an inaccurate or incomplete history cannot generally be determined from the four corners of the report. Ordinarily an inaccurate or incomplete history may only be shown by other testimony or evidence which casts doubt on the history specified in the report. In those situations the “facially apparent” test is inadequate, and reference to evidence other than that contained in the report is necessary to resolve the issue.

Our analysis is that the history relied on by Dr. A. does not show an unexplained, facially apparent and substantial deviation from the Guides. It does, however, show a significant departure from the Guidelines when evaluated in light of other uncontroverted evidence. For example, it is clear that the Doctor failed to make a specific and detailed history with regard to past “exposures to dusts, gases, vapors and fumes.” The Guides require that “each job” be so covered. Dr. A. made mention of Gaines’ prior employment but apparently made no inquiry into the “specific activities” which would have revealed eleven years of contact with toxic chemicals and fumes. He did not question the claimant regarding the period or extent of exposure nor did he estimate the hazard posed by the toxic chemicals and fumes. We realize that in many instances, the omission of an historical fact may not invalidate a doctor’s report. Refrigerated Transp. Inc. v. Creek, 590 P.2d 197, 200 (Okla.1979). Nevertheless, in the present case, the specific details required by the guides seem critical to Dr. A.’s report.

Dr. A. also relied on inaccurate information that Gaines was “continuously exposed to continuous chemicals, gas fumes, and diesel fumes.” Gaines’ testimony indicated such exposure was not constant throughout his work day. Instead, his exposure to fumes was limited to the times of testing the gravity in the storage tank. While Gaines also urged that he was continuously exposed to diesel fumes from his truck, he admitted that this exposure was limited to instances when he drove the truck with the windows down. Thus, Dr. A. relied on inaccurate history when making his evaluation. A doctor’s opinion must be predicated on a history consisting of a set of facts substantially consistent with those in evidence, failure of which renders the report of no value. Rule 21, Rules of the Workers’ Compensation Court. See Snow v. Kinta Stripping Co., 372 P.2d 34 (Okl.1962). Here again the medical history’s shortfall is not “facially apparent”, but the employer’s objection reserved the objector’s right to show wherein it was substantially incorrect in light of other uncontro-verted evidence. We thus find the history was not in substantial compliance with the A.M.A. Guidelines, was further flawed for lack of accuracy in a material way, and that the Employer’s objection based on lack of probative value should properly have been sustained.³ Finding a lack of substantial compliance with Rule 20(a), as well as with Rule 20(i), then under the rule of Perlinger and LaBarge this report may not be the basis for an award.

REPORT OF DR. M.

Sun also contends that Dr. M’s report failed to meet the standards of Rule 20. Sun had objected to the probative value of the report at trial, thus preserving the error for appellate review. Dr. M’s report makes no mention of Gaines’ prior history of heavy smoking or his prior exposure to toxic chemicals and fumes. Again, these facts are critical, and their omission is an unexplained, substantial deviation from the Guides. The report also lacks details as to the tests performed and their results. Application of the rule of Perlinger and LaBarge requires that the report not be considered as competent evidence, as it does not substantially comply with Rule 20(a), (c) & (h).

LAY TESTIMONY

Because all three medical reports fail to meet the requirements of Rule 20 and are therefore not competent evidence upon which to base a conclusion, we must consider whether the lay testimony of Gaines’ supplies sufficient evidence to support the Workers’ Compensation Court’s order. In Special Indemnity Fund v. Stockton, 653 P.2d 194 (Okl.1982), we held that “[wjhere the disability is of a character to require expert professional testimony to determine the cause and extent, the question is one of science and must be proved by expert testimony, the absence of which renders the evidence insufficient to sustain an award.” Id. at 199; LaBarge, 769 P.2d at 128. In the present case, the cause of the injury and the extent of the impairment, if any, is a matter within the expertise of medical professionals,, and must “necessarily be proved by the testimony of skilled professionals.” Hill v. Western Co. 424 P.2d 72, 74 (Okla.1962). Without medical evidence, the testimony of Gaines is insufficient to support the conclusion of the Workers’ Compensation Court.

Because there is insufficient evidence upon which the Workers’ Compensation Court may base either an award or a denial of an award, the cause is reversed and remanded for further proceedings, so that the parties may be “given an opportunity to present further evidence of a competent nature insofar as is necessary to definitely settle the issue involved.” Stockton, supra at 201. See also Ed Wright Constr. Co. v. McKey, 591 P.2d 302, 305 (Okla.1979).

II. APPELLATE REVIEW

Numerous recent cases, including the one before us, call upon the Court of Appeals and Supreme Court to review medical reports in workers’ compensation cases for alleged non-compliance with the A.M.A. Guidelines. See, e.g., Spangler v. Lease-Way Automotive Transp., 780 P.2d 209 (Okla.App.1989); Whitener, 773 P.2d 1248 (Okla.1989); Dry v. Pauls Valley Health Care Facility, 771 P.2d 238 (Okla.App.1989); LaBarge, 769 P.2d 125 (Okla.1988); Goodrich v. Hilton, 634 P.2d 1308 (Okla.1981). In the past we have reviewed such complaints if parties preserved the issues by making objections at the time the report is admitted. Rule 21, of course, requires such objections.⁴ Compensation courts, as well as this Court and the Court of Appeals on review, have been generous with objecting parties insofar as 12 O.S. 1981, § 2104 is concerned. That section provides:

Error may not be predicated on a ruling which admits or excludes evidence unless ... .a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. ... (emphasis added)

In this case, as with most others recently reviewed by us, the grounds given at trial for objections have been general, not specific. As a practical matter the appellate courts are being employed to be courts of first review as to whether A.M.A. guidelines are met. Such is not the function of appellate courts. Trial courts are not traditionally reversed for error unless the error was called to their attention at a time when they themselves could reasonably be expected to correct it. Middlebrook v. Imler, Tenny & Kugler, 713 P.2d 572 (Okla.1985).

Henceforth the appellate courts of this state will not reverse for failure to follow Rule 20 or the A.M.A. Guidelines unless an objection is made in compliance with Rule 21 that also states the specific grounds under § 2104. The objection may be either for lack of competency or lack of probative value, but an objection with a mere reference to lack of A.M.A. Guidelines will not suffice for specificity. A party must state the specific provision of Rule 20 and/or the A.M.A. Guidelines which is the basis of the objection. For example, if a party would ask this Court to reject a report for failure to administer the single breath Deo test, he must have initially asked the trial court to reject the report for the doctor’s failure to have administered that particular test. If he would ask this Court to disqualify a report for inadequate history in that the claimant’s history of exposure to other toxic chemicals was not included, he must first have made that substantially identical request to the trial court. We will make like requirements with respect to alleged errors in computations, uses of ratios, percentages of disability, and so forth.⁵ Absent objections to medical reports made with such specificity the appellate courts hereafter will rely on a reporting physician's Rule 20-required assertion that his report substantially complies with A.M.A. Guidelines, and appealing parties in Compensation Court cases will not be heard to advance arguments thereon at this level that were not expressed at the trial of the case. Because arguably this decision overrules “clear past precedent,” its application will be prospective only. Carlile v. Cotton Petroleum Corp., 732 P.2d 438, 445 (Okla.1986); Great N. Ry. Co. v. Sunburst Oil & Ref Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Thus, it will be applied to those cases which are tried after the mandate is issued in this case.

III. MODIFICATION OF THE PERLINGER RULE

Up until now the rule applied to cases on appeal is that which was enunciated in Part I of this opinion. If both parties’ medical reports are found to- be incompetent, the cause is remanded for proceedings to allow competent evidence to be presented. However, in .cases where only one report is found to be incompetent, the party opposing the admission of the report receives benefit of the rule enunciated in Perlinger,. supra.

In Perlinger, the doctor’s report of the prevailing respondent was held on appeal to be not in compliance with A.M.A. Guidelines. The report submitted by the losing claimant was the only competent evidence which could be considered. This Court reasoned that because the claimant’s report was the only competent evidence, judgment must be entered in favor of the claimant, awarding the disability percentage stated in the claimant’s report.⁶ This type of ruling has been considered by some to legitimize recovery by windfall in such cases.

Such a rule favored the party who remained mostly silent at trial with regard to errors in the opponent’s medical report. A reward for such silence is inconsistent with the norm now set forth by this Court which encourages parties to specifically object to errors in the doctor’s report at the first opportunity. Rather than making a perfunctory objection at trial and raising specific objections for the first time on appeal, we seek to facilitate the trial court’s review of the medical reports by encouraging meaningful objections which allow the trial court an opportunity to review and correct such errors before they reach the appellate stage.

There are many cases now pending on appeal which were tried without the benefit of our pronouncements in Part II. We determine that in light of today’s ruling it would be inconsistent in such cases to continue to reward litigants who successfully nullify the victorious opposition’s only medical evidence on appeal. We now declare the better practice to be as herein provided, and thus modify Perlinger and LaBarge, to the extent that they would necessitate total victory for any party obtaining a reversal on appeal under Rule 20. Henceforth, and until such time as cases shall come before us tried after mandate herein, when a medical report which is the sole basis for an award or denial of award is held to be incompetent or non-probative as evidence under Rule 20 of the Rules of the Workers’ Compensation Court, this Court will reverse the judgment on which it is based and remand for further proceedings, following the example of Stockton, 653 P.2d at 200-01.⁷

Accordingly, this cause is reversed and remanded for further proceedings.

HODGES, LAVENDER, DOOLIN and ALMA WILSON, JJ., concur. KAUGER, J., concurs specially. OPALA, V.C.J., concurs in part, dissents in part. HARGRAVE, C.J., and SIMMS, J., dissent.

1 . The A.M.A. guides also provide for a single breath Deo when the patient's respiratory complaints are of greater severity than the spirome-try results would indicate. In Table 1 on page 86 a class four (4) rating refers to the Deo test. No Deo values are specified because of a large variation in the Deo measurement. A.M.A. Guides at 97.

2 . The pertinent part of Rule 20 is as follows:

Within ten (10) days of receiving a copy of the other party’s verified or declared report, a party-recipient shall advise the Court in writing if there is an objection to the admission of the verified or declared report in evidence. A copy of the objection shall be mailed to all parties of record in the claim. Unless the Court and the other parties are timely notified of the objection, the party-recipient of the verified or declared report shall be deemed to have waived the right to object and the verified or declared report shall be admitted into evidence at the trial. When a timely objection is received, the party intending to offer the verified or declared report shall, within a reasonable time, arrange for the taking of the physician’s deposition.

3 . We have noted that such an objection is anala-gous to a demurrer to the evidence in Compensation Court practice. Whitener, supra, at 1249, footnote 1.

4 . Rule 21. Objections to Evidence.

An objection to testimony offered by oral examination in open court must be made at the time the testimony is sought to be elicited.

An objection to testimony offered by deposition must be interposed at the time the deposition is offered or at the deposition hearing.

An objection to medical testimony offered by verified or declared report, if on the grounds that (1) it is based on inaccurate or incomplete history or is otherwise without probative value, or (2) it does not properly evaluate claimant’s impairment or disability, as the case may be, in accordance with the Workers’ Compensation Act, must.be interposed at the same time it is offered into evidence.

Unless an objection is timely made, it shall be waived. Any legally inadmissible evidence that stands admitted without objection shall be regarded as admitted as part of the proof in the case. 85 O.S.1981 Ch. 4, App.

5 . The trial court must rule on the objection prior to any award being entered or denied. Any trial court finding a report to be so flawed should then afford the offering party additional time, if requested, to furnish a corrected report.

6 . La Barge, supra, followed Perlinger to a similar result.

7 . We shall continue to review medical reports by the standard set out in LaBarge and Whitener, supra. That test is whether from the report’s four corners, an unexplained, facially apparent and substantial deviation from the Guides can be detected by mere reference to the text. Whitener, supra at 1251.