Medical Evidence

Unless an objection to the hearsay nature of a medical report and request for cross-examination by deposition is timely made, any hearsay objection to the medical report is deemed to be waived. See 85 O.S.2001 Ch. 4, App. Rule 20(F). All other objections to the competency, relevancy and probative value shall be raised at the time of trial or shall be waived. See 85 O.S.2001 Ch. 4, App. Rule 20(F) and Rule 23. Failure to object to an opponent's medical report when evidence is offered at trial results in a waiver of any objections; once admitted without objection, even if legally inadmissible, a medical expert's report shall be regarded as admitted as part of the proof in a workers' compensation case. Stoner v. City of Lawton/Lawton Police Department, 1997 OK 28, ¶6, 934 P.2d 340.
Brown v. Mom's Kitchen, LLC, 2004 OK CIV APP 66, 96 P.3d 808

Claimant must prove by competent medical evidence that there is a connection between his injury and work activities. Once a prima facie case is established, employer may refute it with evidence; but not necessarily medical evidence. Hughes v. Cole Grain Company, 1998 OK 76, 964 P.2d 206.

A physician's opinion need not be given in categorical terms nor in the precise language of the statute, and an award of the [Workers' Compensation] Court rests on competent evidence when it is supported by the general tenor and intent of the medical testimony. Oklahoma Gas & Electric Co. v. State Industrial Court, 1961 OK 281, 366 P.2d 609

1. Court Rule 20

85 O.S. Rules of the Workers' Compensation Court, Rule 20, Medical Evidence (the cornerstone standard for a competent medical report).

2. Objective Medical Evidence

"Objective medical evidence" means evidence which meets the criteria of Federal Rule of Evidence 702 and all U.S. Supreme Court case law applicable thereto. 85 O.S. §3(17).

Federal Rule of Evidence 702 provides:

Testimony by Experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702 was analyzed in the well-known cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and their holdings are collectively referred to as the Daubert standards or Daubert rules.

Daubert provided a nonexhaustive list of factors for a trial judge to consider when determining the admissibility of evidence from a witness qualified as an expert by knowledge, skill, experience, training or education. The purpose of examining these factors is a determination whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. The four factors are 1. Can the expert's theory or technique be, or has it been, tested; 2. Has the expert's theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error … and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. . . .The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. . . . The Daubert factors were intended to be flexible and were not intended to be a rigid standard applicable to every case. Worsham v. Nix, 2006 OK 67, ¶ 36, 145 P.3d 1055, 1067.
Scruggs v. Edwards, 2007 OK 6, 154 P.3d 1257

Objective medical evidence should not be confused with objective medical testing or in some cases objective medical findings.

Scruggs v. Edwards, 2007 OK 6, 154 P.3d 1257

3. Employer's Medical Evidence

As a practical matter, the employer will generally offer medical evidence in opposition to any issue raised by the worker. As a legal matter, a competent medical report is only necessary when the employer contests the issue of permanent disability.

Our holding in Labarge v. Zebco, Okl., 769 P.2d 125 (1988), only requires the issue of permanent disability to be proven or refuted by medical expert testimony. The issue decided by the trial court in the instant case concerned causation. This Court has never held medical testimony is essential for refuting causation. Rather, in Special Indemnity Fund v. Stockton, Okl., 653 P.2d 194, 199 (1982), we held that "[w]here 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." (Emphasis added) This language was recently quoted in Gaines v. Sun Refinery and Marketing, Okl., 790 P.2d 1073 (1990) and speaks only to the sufficiency of evidence where a trial court has awarded compensation.
Collins v. Halliburton Services, 1990 OK 118, 804 P.2d 440

The employer is not under an obligation to rebut medical causation evidence because the worker has the burden of proving compensability.

Oklahoma's jurisprudence does not impose upon an employer an affirmative obligation to prove by competent medical evidence that a causal relationship does not exist between an alleged injury and employment. Nonetheless, if (1) there is no competent evidence in the record to refute causation and (2) the claimant has met its burden on this issue, a trial court's finding that the injury did not arise out of employment cannot be sustained.
Hughes v. Cole Grain Company, 1998 OK 76, 964 P.2d 206

4. Treating Physician Presumption

There shall be a rebuttable presumption in favor of the treating physician's opinions on the issue of temporary disability, permanent disability, causation, apportionment, rehabilitation or necessity of medical treatment. 85 O.S. §17A2a

According to 85 O.S. §17A2a offering the report of the treating physician raises a presumption in favor of the physician's opinions. This presumption may be rebutted by an opposing party’s competent medical report, including one from a hired physician, or the report of an IME. Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557; Rush Truck Center/OKC v. Watson, 2007 OK CIV APP 37, 159 P.3d 1146.

The Conaghan case held the appointment of an IME pursuant to §17 is not the sole procedural remedy for a party objecting to the report of a treating physician. This provision does not specifically preclude other evidence. To allow a treating physician to exclusively determine a claimant’s disability rating would usurp the court’s authority. Due process of law commands a workers’ compensation litigant — claimant or respondent — be allowed to introduce its own expert medical evidence. See also, Public Supply Company v. Mucker, 2007 OK CIV APP 48, 162 P.3d 234.

5. Objections to Medical Reports

Failure to object to an opponent's medical report at the time of trial results in a waiver of any objection to such evidence. Once admitted, the report is regarded as part of the proof in the case. Stoner v. City of Lawton, 1997 OK 28, 934 P.2d 340; Brown v. Mom's Kitchen, LLC, 2004 OK CIV APP 66, 96 P.3d 808.

5.1. Hearsay

5.2. Competency and Probative Value

When a medical report is offered as evidence, the opposing party can generally make objection to the competency or to the probative value of the report. The distinctions between these objections and the appellate review of rulings on such objections were explained in the Lacy case:

[I]n the area of workers' compensation an objection to the "competency" of a medical report is directed to the exhibit's admissibility on hearsay or other legal grounds.3 Alternatively, an objection to an exhibit's "probative value" is used to challenge the evidence for insufficiency as legal proof of (a) medical findings with respect to the presence or absence of compensable disability, or of (b) the compensable impairment's rating. In other words, when evidence is objected to as lacking in probative value, the issue is whether it is probative of the elements it seeks to establish once admitted. Thus, an objection to the "competence" of medical evidence has a separate and distinct meaning from a probative value objection. Medical evidence may be "competent" in the sense that it was correctly admitted and yet lack the required quality of legally sufficient proof.

However, in Parks v. Norman Municipal Hospital, this Court adopted the any competent evidence standard of review for decisions of the Workers' Compensation Court. By force of 85 O.S. §26, all findings of fact made in the trial court's decision under review are conclusive and binding unless it is ascertained that such findings lack support by any competent evidence. Clearly, if the only evidence which supports an order of the trial court lacks probative value the Parks test will not be met. In other words, when appellate review is premised on a probative value objection, an appellate court can hold that the trial court's order is not supported by any competent evidence under the Parks test because the supporting evidence lacks probative value. Thus, the term "competency" when used as an objection refers to the evidence's legal admissibility, while the term "competent" as used in the Parks test refers to the legal sufficiency, on any ground of evidence which supports an order of the Workers' Compensation Court.

Lacy v. Schlumberger Well Service, 1992 OK 54, 839 P.2d 157

Objections to competency or probative value of a medical report for failure to comply with the AMA Guides to the Evaluation of Permanent Impairment must be specific. This will require the trial judge to evaluate a defective report and allow corrective action by the offering party. The appellate courts will not perform such evaluation in the absence of a proper objection. Gaines v. Sun Refinery and Marketing, 1990 OK 33, 790 P.2d 1073, sets out a very clear explanation of the characteristics or a proper competency or probative value objection to a medical report on the grounds that it fails to comply with the AMA Guides when it stated the following:

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 Dco 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. 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.
Gaines v. Sun Refinery and Marketing, 1990 OK 33, 790 P.2d 1073

5.2.1. Court Rulings and Curing Defects

If an objection is sustained, the offering party must be given an opportunity to correct the reports deficiencies or to stand on the report. Houston v. Zebco, 1991 OK 125, 821 P.2d 367; Wheat v. Heritage Manor, 1989 OK 160, 784 P.2d 74.

The trial method for ruling on objections is discussed by Justice Marian P. Opala in the case of Whitener v. South Cent. Solid Waste Authority, 1989 OK 62, 773 P.2d 1248:

Neither at the hearing nor at any point before issuing the order denying compensation did the trial judge expressly rule on the claimant's challenge to the probative value of the employer's medical evidence. The better practice, and one more in keeping with the notions of fairness to both parties, is to make an in-trial ruling on the "objection" or to take the challenge under advisement. If a mid-hearing ruling cannot be made and the trial judge decides afterwards that the challenge should be sustained, the party who tendered the objectionable exhibit should be afforded a reasonable opportunity to replace the flawed report with one that can withstand the scrutiny of the challenge which was or would likely be sustained. On the other hand, if a probative value challenge is upheld and the disadvantaged party then elects to stand on its report, the claim could be considered submitted for decision upon the evidence adduced at the hearing.
Whitener v. South Cent. Solid Waste Authority, 1989 OK 62, 773 P.2d 1248, footnote 2.

When a trial judge's decision rests on a flawed, yet curable, medical report, the case will be remanded for re-examination by the trial tribunal. City of Norman v. Garza, 2003 OK 111, 83 P.3d 851.

A fundamental requirement applicable to workmen's compensation proceedings is the opportunity for all parties to develop their case before State Industrial Court. This principle has been applied consistently in cases involving a claimant's failure to establish his case by competent medical evidence, where proceedings are vacated and remanded to State Industrial Court to afford the claimant the opportunity to develop his case properly in that court. In Carpenter v. Douglas Aircraft Co., 420 P.2d 911 (Okl. 1966), it was expressly held that failure to remand to permit eliciting evidence, missing because of inadvertent oversight, constituted an abuse of discretion.

Ed Wright Const. Co. v. McKey, 1979 OK 25, 591 P.2d 302.

5.2.2. Specificity of Probative Value Objection

The objecting party must state the specific grounds for the probative value objection, or the objection is waived. In the Matter of Death of Garland, 1998 OK 72, 968 P.2d 1214, 1217 (claimant's attorney was asked for objections the the respondent's medical report and replied "Probative value objection only, Your Honor; and that is that I think it's purposefully vague.").

5.3. Inaccurate History

Where a party complains that a medical report lacks probative value because it contains an inadequate or incomplete history, that party must, by cross-examination or some other acceptable means, demonstrate that the witness failed to assume a fact conceded to be material or that the omitted fact is so indispensable that its omission renders the opinion totally lacking in probative value. Bostick Tank Truck Service v. Nix, 1988 OK 128 , 764 P.2d 1344.

Nancye Cunningham contended that she collapsed at work due to exposure to 100+ degree heat in a pediatric nursery at Pawnee Municipal Hospital. Employer objected to the report of claimant's medical expert because his report lacked a history of her use of Normodyne a medication that could have contributed to her fainting and fall on a flat surface.

A party objecting to a medical opinion based upon inaccurate history has the burden of demonstrating either the witness did not consider a fact assumed to be material or that the omitted fact is indispensable and that its omission is fatal to the probative value of the expert's opinion. Bostick Tank Truck Service v. Nix, 1988 OK 128 , 764 P.2d 1344. Employer did not cross-examine Claimant's medical expert. It demonstrated neither that Claimant's expert did not consider the potential effect of Normodyne, nor that such a consideration, if absent, would have changed his opinion.
Pawnee Mun. Hosp. v. Cunningham, 1999 OK CIV APP 60, 985 P.2d 189

5.4. Untimely Exchange of Reports

No later than twenty (20) days prior to the date of trial, all parties shall exchange medical reports, all documentary evidence, exhibits and a complete list of witnesses with all opposing parties.
85 O.S. Rules of the Workers' Compensation Court, Rule 19E, Motions to Set and Pretrial Stipulations.

Beets v. Metropolitan Life Insurance Co., 1999 OK 15, 995 P.2d 1071.
Ed Wright Const. Co. v. McKey, 1979 OK 25, 591 P.2d 302.

6. Weighing the Evidence

The determination of the weight and probative value of evidence, including medical evidence, is within the exclusive province of the Workers' Compensation Court "which may accept all or part of the evidence, or reject evidence entirely." Berg v. Parker Drilling Company, 2004 OK 72, ¶14, 98 P.3d 1099.

The trial judge is "the sole judge of the credibility of witnesses and of the weight and value to be accorded to the testimony adduced." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶8, 130 P.3d 213.

"Evidence of one expert may be accepted while that of another may be rejected in whole or in part." Lamson & Sessions v. Doyle, 2002 OK 89, 61 P.3d 215, 219.

6.1. IME Reports

The probative value of an IME's opinion on the extent of impairment or disability is evidence to be considered on a footing equal to all other proof in the case. There is no basis in compensation law for authority to drain the judicial process of its very essence by encroaching on the trial tribunal's freedom to rate compensable harm at any point that stands within the range of adduced competent evidence. Legislation that either directly or obliquely predetermines an adjudicative fact impermissibly invades the judiciary's exclusive constitutional prerogative of fact-finding.
Yocum v. Greenbriar Nursing Home, 2005 OK 27, 130 P.3d 213

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