concurring:
While I concur with Judge Reynold’s opinion in the above matter, I write in response to Judge Garrett’s Dissenting Opinion.
In the present case, Petitioner introduced medical evidence rating his disability at twenty-three percent (23%). Respondent introduced medical evidence showing zero percent (0%) disability. Petitioner objected at trial to the admission of Respondent’s medical reports as to competency and probative value for lack of compliance with Rule 20, Rules of the Worker’s Compensation Court, 85 O.S.Supp.1987, Ch. 4, App., and the AMA Guides for Evaluation of Permanent Impairment (hereinafter AMA Guides.) In this review proceeding, Petitioner again asserts that Respondent’s medical evidence is incompetent under the Guides and Rule 20.
Both parties to this action agree that a medical report made without substantial compliance with Rule 20 and the AMA Guides is not competent. See, 85 O.S.1985 Supp. § 3(11); LaBarge v. Zebco, 769 P.2d 125 (Okl.1988); Perlinger v. J.C. Rogers Const. Co., 753 P.2d 905 (Okl.1988); Special Indemnity Fund v. Stockton, 653 P.2d 194 (Okl.1982); Goodrich v. Hilton, 634 P.2d 1308 (Okl.1981). In that regard, I find Justice Opala’s test for deviation from the AMA Guides applicable by analogy to this case of alleged deviation under Rules 20: “[The] test for determining whether the standards are followed when clearly applicable is whether, from the medical report’s four corners, an unexplained, facially apparent and substantial deviation from [Rule 20 or] the Guides can be detected from mere reference to their text.” Whitener v. South Central Solid Waste Authority, 773 P.2d 1248, 1251 (Okl.1989) (Emphasis original).
I further find Justice Opala’s opinion in Whitener, supra, instructive as to the effect of a ten-day written objection under Rule 20. In Whitener, claimant filed a written objection within ten days of receipt of employer’s medical evidence under Rule 20, thereby “triggerpng] a procedure for deposing the [opponent’s] medical expert.” 773 P.2d 1248, 1250, 60 O.B.A.J. 1011,1013, footnote 5. I view this explanation of Rule 20 as limiting the effect of a ten-day written objection as going to objections to the medical evidence offered by verified report based on hearsay grounds only.
Thus, and as I read Rules 20 and 21 in pari materia, a ten-day objection under Rule 20 attacks only the hearsay nature of a doctor’s verified report. An at-trial objection under Rule 21 attacks the verified report’s competency, and hence, admissibility, based on a report’s incomplete histo*211ry of the patient, the report’s lack probative value, the report’s lack of compliance with the requisites of the Oklahoma Worker’s Compensation Act, and also, lack of compliance with Rule 20. 85 O.S. 1981 § 3(11) (adherence to AMA Guides mandated); Whitener, 773 P.2d 1248, 1249, 1250, 60 O.B.A.J. 1011,1013, footnotes 1, 6; Rule 21, Rules of the Workers’ Compensation Court, supra. This construction, I believe, is also the construction now accorded Rule 20 by the Workers’ Compensation Court and practicing bar.
Justice Opala’s commentary in the footnotes to Whitener is also instructive as to objections and preservation of error in the Trial Court’s rulings excluding or admitting evidence.
In compensation practice, an objection to the ‘competency’ of a medical report is directed to the exhibit’s admissibility on hearsay or other legal grounds. Another type of ‘objection’ known to that practice addresses itself to the probative value of a physician’s ... report. The latter procedural device is used to challenge the expert opinion for insufficiency as legal proof of (a) medical findings with respect to the presence or absence of compensa-ble disability, or of (b) the compensable impairment’s rating. The real issue raised by the challenge to the exhibit’s probative effect is whether the evidence — once admitted — is probative of the elements it seeks to establish, or, to use simpler parlance, whether it tends to to prove that which it was adduced to show. In sum, a true objection resists only the exhibit’s legal admissibility, while a challenge for lack of probative value — the approximate counterpart of a district-court demurrer to the evidence— tests the legal sufficiency of targeted written proof to establish the evidentiary elements for which it was adduced.
Whitener, 773 P.2d 1248, 1249, 60 O.B.A.J. 1011, 1013, footnote 1. (Emphasis original).
Under this view, I believe that Petitioner’s at-trial objections to Respondent’s medical evidence were timely and proper to preserve any error in the Trial Court’s rulings regarding both “competency” (and hence, admissibility of the challenged reports for lack of compliance with the Guides and Rule 20,) and probative value. In the present case, the challenged medical evidence consists of three letters, two of which are verified, but none of which approach compliance with the requisites of Rule 20(a-i). That is to say that, from an examination of Rule 20 and the medical evidence’s four corners, “an unexplained, facially apparent and substantial deviation from [Rule 20 or] the Guides can be detected from mere reference to their text.” Whitener, 773 P.2d 1248, 1251, 60 O.B.A.J. 1011, 1012. In that regard, I agree with the opinion of Judge Reynolds and find the case and quoted language of LeBarge v. Zebco, supra, determinative of this action.
I therefore CONCUR.