with whom SIMMS, Justice, joins for the portion that is in dissent from the court’s opinion, concurring in part and dissenting in part.
I concur in the court’s conclusion that the employer’s medical report is fatally flawed for noncompliance with AMA Guides.1 I dissent from today’s disposition that directs the trial tribunal, under the authority of Perlinger v. J.C. Rogers Const. Co.,2 to enter an award in accordance with the impairment rating reported below by the claimant’s medical witness.
THE ANATOMY OF LITIGATION
The claimant sustained an on-the-job injury while operating a forklift for her em*129ployer. A hospital discharge report reveals she underwent surgery for two ruptured discs. The claimant’s physician evaluated her overall disability at 40 percent to the whole body but separately estimated her motor limitations at 34 percent, sensory loss at 2 percent and hemiation-of-discs impairment at 10 percent. The employer’s medical report assesses her total accident-generated impairment at five percent. The trial judge rejected entirely the 34 percent rating for motor impairment to give claimant but 12 percent permanent partial disability. This award was affirmed by a three-judge review panel.
The AMA Guides plainly appear to mandate a five percent impairment for each operated disc. The employer’s report, which evaluates the claimant’s impairment at five percent, gives no explanation for the clear departure from the Guides. The report is plainly in discord with the statutory command in 85 O.S.Supp.1987 § 3(11)3 and with the implementing Rule 20(i) of the Workers’ Compensation Court.4 Because of this flaw in the disability rating, I would hold employer’s medical report to be fatally defective and, because of a total failure in respondent’s defensive proof, I would direct that the proceeding be remanded for a rehearing before the trial judge.
I
A NEW TRIAL IS WARRANTED WHEN THERE IS AN INADVERTENT TOTAL FAILURE OF PROOF
At common law, when there is a failure of proof to sustain a jury verdict the court of review may grant a new trial.5 We apply the same rules to compensation cases. When one party’s proof fails totally and there is no indication of inexcusable neglect, that party is entitled to a rehearing of the claim.6 The compensation order *130is then vacated and the proceeding remanded to the trial tribunal as though the case had never been tried and decided before.7 Fundamental fairness in litigation process cannot be afforded except within such a framework of orderly procedure — even in compensation cases.8
II
THE EMPLOYER’S EVIDENCE, THOUGH COMPETENT, WAS WITHOUT PROBATIVE VALUE
A medical report may be “competent” in the sense that it was correctly admitted and yet lack the requisite quality of legally sufficient proof. An “incompetent” report is typically one which is admitted over objection to its hearsay character, where, for example, no cross-examination had been afforded by means of a deposition.
In this case the employer’s report is “competent” in the sense that it was rightly admitted; the problem is that it proves nothing. The medical evidence — read together with the hospital discharge report which says that two discs were operated on — demonstrates the physician’s unexplained noncompliance with the AMA standards that allow a 5% disability rating for each disc. Since the employer’s medical report gave the claimant an unexplained disability rating of 5% instead of 10% for both discs, it is not probative of any com-pensable impairment.9
III
THE PERLINGER “JACKPOT” RULE
In Perlinger, supra, the court announced the “jackpot rule” by which the claimant is awarded a windfall whenever the employer’s medical report is found to be fatally flawed. An example of the rule’s application is afforded by a claimant’s report indicating 90% disability and the employer’s flawed report evaluating disability at 0% without conforming to the AMA Guides. By Perlinger teachings this court would be required to order the trial tribunal to enter a 90% disability award. Under this rule, a denial of compensation would be mandated if the claimant's report were found to be fatally defective.
I cannot countenance today’s broad application of Perlinger; it would encourage gamesmanship by calculated silence of counsel confronted at a trial tribunal’s hearing with an opponent’s flawed report. Claimants and employers alike could easily be ambushed into visiting a windfall on their opponents astute enough to stand mute at the admission of a report lacking in probative value.
I would narrow the teaching of Perlinger by limiting its application to scenarios in which counsel offers a flawed medical report and then stands on it after its lack of probative value has been determined by an adverse ruling of the trial judge. I would also require that, in order to afford the adversely affected litigant full opportunity to procure a probative report of disability that replaces the flawed one, a judicial ruling be made before any order or award is entered. Counsel for the party proferring rejected evidence should be given additional time to cure the defect with a replacement report.
Although the record indicates that the five-percent disability rating was challenged below, there was here no ruling and no showing of counsel’s conscious recogni*131tion of the report’s defect or his intention to stand on the flawed evidence.
I would hence declare the employer’s medical report ineffective and rule that the worker’s disability should be redetermined on the claim’s remand.
. American Medical Association’s Guides to the Evaluation of Permanent Impairment, p. 57, Table 53(b)2.
. Okl., 753 P.2d 905 [1988].
. The terms of 85 O.S.Supp.1987 § 3(11) provide:
"As used in the Workers’ Compensation Act: ******
(11) 'Permanent impairment’ means any anatomical or functional abnormality or loss after reasonable medical treatment has been achieved, which abnormality or loss the physician considers to be capable of being evaluated at the time the rating is made. Except as otherwise provided herein, any examining physician shall only evaluate impairment in accordance with the latest ‘Guides to the Evaluation of Permanent Impairment' adopted and published by the American Medical Association. The examining physician shall not deviate from said guides except as may be specifically provided for in the guides. These officially adopted guides shall be the exclusive basis for testimony and conclusions with regard to permanent impairment with the exception of paragraph 3 of Section 22 of this title, relating to scheduled member injury or loss; and impairment, including pain or loss of strength, may be awarded with respect to those injuries or areas of the body not specifically covered by said guides.” [Emphasis mine.]
. The terms of 85 O.S.Supp.1987, Ch. 4, App., Rule 20(i), Rules of the Workers’ Compensation Court, provide:
"Expert medical or rehabilitation testimony may be offered by:
******
(i) Any other detailed factors upon which the physician’s evaluation of permanent impairment is based, including a statement that the evaluation is in substantial accordance with the latest ‘Guides to the Evaluation of Permanent Impairment’ adopted and published by the American Medical Association which were in effect when the examination was made. 85 O.S.Supp.1986 § 3(11).”
. See Great Northern L. Ins. Co. v. Farmers’ Union Co-op. G. Co., 181 Okl. 370, 73 P.2d 1155, 1158 [1937], in which the court said that "where there is a mere insufficiency of evidence to sustain the verdict in a law action ... a new trial should be granted,” and Seymour v. Swart, Okl., 695 P.2d 509, 512-513 [1985]. In Swart we noted that a judgment which is reversed and remanded for a new trial returns the action to the trial court where it stands as if no trial had been held, except for questions of law settled in the former appeal. See also Annin v. Belridge Oil Employees Federal Credit Union, 119 Cal.App.2d Supp. 900, 260 P.2d 295, 302 [1953] where the court stated: "When we say that the evidence is insufficient to justify the decision, we mean that there is an absence of evidence or that the evidence received is lacking in probative force to establish the proposition of fact to which it is addressed.” [Emphasis added.]
. In Rodriquez v. Utilities Engineering & Construction, Okl., 281 P.2d 946 [1955] (syllabus), the claimant, "without fault or in fault reasonably excusable” was prevented from having a full and complete hearing before the trial judge. We held the claimant was entitled to a rehearing of her claim. In Carpenter v. Douglas Aircraft Company, Okl., 420 P.2d 911, 913-914 [1966], there was an inadvertent omission of a link in the claimant's chain of proof. The order *130denying compensation was vacated and the case remanded to afford the disadvantaged party the opportunity to elicit evidence that might cure the oversight. In Glaspey v. Dickerson, Okl., 350 P.2d 939, 943 [1960], after inadmissible evidence was excluded, the medical evidence that remained was found insufficient to sustain the award. The award was vacated without prejudice to further proceedings below. In Lincoln Rock Corp. v. Voyles, Okl., 590 P.2d 186, 189 [1979], the review panel failed to make a finding on newly-discovered and uncontroverted evidence. The case was remanded to the trial judge for further proceedings.
. Adams v. City of Anadarko, 198 Okl. 484, 180 P.2d 159, 160 [1947].
. Pryse Monument Co. v. District Court, Etc., Okl., 595 P.2d 435, 438 [1979].
. The phrase "not probative of compensable injury" means here that the report does not follow AMA Guides.